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Docket: CA159144 Date: 19991102 NOVA SCOTIA COURT OF APPEAL [Cite as: Labourers’ International Union of North America v. Dexter Construction Company Ltd. 1999 NSCA 132] BETWEEN: LABOURERS’ INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 1115 (hereinafter referred to as the “Union”) and Blaise MacDonald PERSONS UNNAMED for The Union Intended Defendant(s) and Eric Durnford for the respondent DEXTER CONSTRUCTION COMPANY LTD. Intended Plaintiff/ Respondent Application Heard: October 21, 1999 Decision Delivered: November 2, 1999 BEFORE THE HONOURABLE JUSTICE RONALD N. PUGSLEY IN CHAMBERS Pugsley, J.A. (In Chambers): [1] Labourers’ International Union of North America, Local 1115, (hereinafter called the Union) applies for leave to obtain intervener status as a party, or as amicus curiae, or alternatively as an intervener, and to bring an appeal from orders made on September 23 and October 1, 1999, by Justice Tidman of the Supreme Court, in proceedings brought by Dexter Construction Co. Limited (Dexter), Intended Plaintiff, against Persons Unnamed, Intended Defendant(s). [2] The leave to obtain intervener status as a party is made pursuant to Civil Procedure Rules 5.02, and 5.04, and 8.01(1). The application to be joined as an amicus curiae, or friend of the court, is made pursuant to Rule 8.02. The application to be added as an intervener is made pursuant to Rule 62.35. [3] Application is also made for extensions of time and variation in the manner and time and place of service on Dexter, pursuant to Rules 3.03, 37.05, and 62.31. Background [4] On Wednesday, September 23, 1999, Dexter, the Intended Plaintiff, filed an interlocutory notice ex parte application against "Persons Unnamed Intended Defendant(s)", seeking an interim injunction to restrain the Intended, Defendant(s) "and each of their servants, agents, representatives and employees, and any person or persons acting under the instructions of them, or any of them, and any person having notice of this order", from picketing or otherwise impeding or preventing Dexter, its employees and suppliers, from entering premises located in the Cape Breton Regional Municipality where Dexter was carrying on work. [5] No other party was named as an Intended Defendant(s). [6] In support of the application, the affidavits of Kevin MacDonald, President of Dexter, and Daniel Clifton, General Superintendent, were filed. [7] An order ex parte was granted on September 23, 1999, by Justice Tidman of the Supreme Court. It provided, inter alia, that "this matter be returnable on the 30th day of September, 1999 at 12:00 noon, at such time the Unnamed Defendant(s) shall be afforded an opportunity to be heard in relation to the continuation of this Injunction Order." [8] am advised by counsel for the Union that he was instructed by his client, on Friday, September 24, 1999, of the existence of the ex parte order, copy which was apparently delivered to him on that day. Over the next few days, copies of one, or more, of the supporting affidavits were also obtained by him. [9] On Thursday, September 30, 1999, Dexter filed supplementary affidavit deposed by Mr. Clifton on the 29th of September. Dexter also filed memorandum in support of its submission for the continuation of the ex parte injunction. Mr. MacDonald, counsel for the Union, advised he was not aware of the existence of these documents before the hearing on September 30th. [10] On the return date, counsel for the Union was present in court for his client on an application to continue another unrelated injunction proceeding (Cape Breton Regional Municipality, Intended Plaintiffs v. Labourers’ International Union of North America, Local 1115 and Persons Unnamed, Intended Defendants, SN No. 111895, proceeding which was the subject of another Chambers application before me). [11] Upon counsel for Dexter requiring clarification of Mr. MacDonald's status respecting the Dexter application, the following exchange occurred: Mr. MacDonald: My Lord, am not here representing any unnamed persons, ...local 1115, who is client, client of mine, is not named in the application, as understand and I've got copies of it faxed to me from the Court.. can tell you this My Lord, and this is one of the things that concerns me and offer this as friend of the, friend of the Court. And, of course, in the interest of my client as well. And in the interest of the operating engineers in the I.B.E.W. who are not my clients. But it affects all of those. And that is one of the problems with respect to labor injunctions and the caveat provision in the Judicature Act to...the Court avoid them as, as much as possible. Certainly none without notice. The Court don't want to hear your argument on the issuance of the injunction. want to hear your response to Mr. Sampson's opposition to you having status before the Court. Mr. MacDonald .. do not represent any unnamed parties, have no idea who the unnamed persons are and if knew who they were it may well be that my client, [the Union] would instruct me to assist or defend them or whatever. But we have no idea who they are. The Court ...this is against unnamed persons, there is nothing anywhere in the material to indicate that the unnamed persons have anything to do with your client. And the action is not against your client. ... as far as the Court is aware there is no labor/management dispute. And in view of the fact that you had told the Court that you don't represent the unnamed, unnamed parties, the persons unnamed, as party to the action, then you have no status to appear before the Court, because your client is not party to the action. [12] No viva voce evidence was called by Dexter in support of its submission for the continuation of the injunction. Submissions were made to Justice Tidman by counsel for Dexter, as well as counsel for the Union. [13] On October 1, 1999, Justice Tidman issued an order substantially in the form of the order granted on September 23, with the following amendments: AND IT IS FURTHER ORDERED that the Intended Plaintiff shall file an Originating Notice and Statement of Claim upon further direction being given by this Honourable Court AND IT IS FURTHER ORDERED that the Intended Defendants are at liberty to make an Application to this Court to have hearing on this application by providing forty-eight (48) hours’ notice to the Intended Plaintiff of its intention to make such application; THIS ORDER is subject to and in no way restricts the lawful right of the Intended Defendants and its representatives and members and their lawful right solely to communicate and disseminate information to the public; THIS ORDER is to continue until further Order of this Honourable Court. [14] The Union has filed two affidavits in support of its position on the present applications, one by Bernie MacMaster, Secretary Treasurer and Dispatcher of Local 1115, deposed on October 8, 1999, and the other by Doug Serroul, Business Manager of Local 1115, deposed on October 12, 1999. [15] Mr. MacMaster deposes in part: 2. THAT attached to this my Affidavit as Exhibit "A", is true copy of draft of an application which LIUNA 1115 is making to the Construction Industry Panel of the Nova Scotia Labour Relations Board under the Nova Scotia TRADE UNION ACT. The said draft application is an application for successors rights. It is claim to successor rights by LIUNA 1115 for the balance of the work on the Provincial Highway #125 Twinning Project. The latter project was formally contracted to Municipal Ready Mix Ltd. and now the balance of or the last one-third (1/3 approximately) of the work is being performed by Dexter Construction Ltd. without compliance with the collective agreement which was in effect in operation for the first two thirds of the project. 3. THAT am informed by LIUNA 1115 solicitor, Blaise MacDonald, and believe him that there is an arguable issue that the matter put before the Supreme Court of Nova Scotia on September 23rd, 1999, in the initial Ex-Parte Interim Application, and placed again on the return date of September 30th, 1999, was “labor-management dispute” within the meaning of s. 44 of the JUDICATURE ACT.. 4. THAT no notice of these September 23 and September 30th, 1999, proceedings, except copy of the September 23rd, 1999, Order of the Supreme Court, was served upon the LIUNAl 1115 up to the time of my swearing this Affidavit. 5. THAT members of LIUNA 1115, and members of other road building unions such as the International Union of Operating Engineers (“I.U.O.E.”) and the International Brotherhood of Electrical Workers were employed on the road building project in question and would be, if successful at the Labour Relations Board, be employed there in the future until its completion. 7. THAT am told by Blaise MacDonald, solicitor for LIUNA 1115, and do verily believe him, that the transcript will reflect that he attempted without notice from the applicant, to make submissions to the Court and was not permitted to do so on September 30, 1999. [16] Doug Serroul deposes in part: 4. THAT have read the affidavit of Bernie MacMaster sworn the 8th day of October, A.D. 1999, and he is mistaken in that LIUNA 1115 was never formerly served with any Order, Notice or Affidavits in this proceeding Although copy of an order dated September 23rd, 1999, ... was served by fax upon LIUNA 1115 on the afternoon of September 24th, 1999. 5. THAT am told by Blaise MacDonald, .... and do verily believe him, that he obtained copies of documents from the file at the Prothonotary’s Office prior to the hearing on Thursday, the 30th day of September, 1999, but copies of an affidavit of Daniel Clifton, sworn September 30th, 1999, and letter to the Court from Dexter’s Solicitor, Robert Sampson, dated September 30th, 1999, were not made available to him prior to or during the Court Proceedings before Mr. Justice Gordon Tidman. 6. THAT instructed Blaise MacDonald, solicitor for LIUNA 1115, to attend the application on Thursday, the 30th day of September, 1999, and attempt to make representations to the Court that LIUNA 1115 and its members were in the midst of labour dispute with Dexter Construction Company Limited and its predecessor contractor on that project, Municipal Ready Mix Limited. 12. THAT LIUNA1115 instructed its Solicitor to attend because it was desirous of seeing the lawful rights protected for those who are members of LIUNA 1115 and who lost their employment, their opportunity for employment, all LIUNA 1115 members, and indeed any members who were in sympathy or empathy with the plight of Local 1115 and its members. 18. THAT LIUNA 1115 especially in the absence of any other party who oppose the intended Plaintiff, will instruct its Solicitor to make submissions to this Honourable Court, which include the following: (a) That there was denial of natural justice and fair hearing by the learned trial judge by allowing the intended Plaintiff to proceed against “Unnamed Persons”, as sole defendants, without further description, in the manner in which the learned Justice did, including purporting to hold an Inter Partes Interlocutory hearing in the manner in which it was noticed and held. (b) That there was denial of natural justice and fair hearing, as well as jurisdictional error, by the failure of the learned Trial Judge to hear the LIUNA 1115’s Solicitor on the arguable issue of the existence of “labour dispute” within the meaning of s. 44(1)(b) of the Judicature Act, RSNS, 1989, Ch. 240, as amended. (c) That the trial judge committed errors of law and jurisdiction when he permitted “Unnamed Persons”, simpliciter, without more, to be the defendants, indeed the sole defendants, in an interim and interlocutory proceeding. (d) That the learned trial judge erred in proceeding with an uncontested Interlocutory hearing continuing the injunction till trial, particularly in the circumstances of this case. (e) Whether other submissions may advance the interests of LIUNA 1115, its members and or oppose the position of the Intended Plaintiff after examining and studying the transcript and determining what occurred at all the proceedings before the learned Trial Judge and may allow for additional grounds. (f) THAT “Unnamed Persons”, without more, should rarely, if ever, be used as defendants, and rarely, if not never, be used as sole defendants. [19] THAT understand that there is no other opposition to the intended action by the Intended Plaintiff and would hope that LIUNA 1115’s submissions would be helpful to this Honourable Court. [17] No evidence was adduced that the Union was directly affected by the provisions of the order of October 1, 1999. [18] The grounds of the proposed appeal are stated as follows: 1. The Justice herein erred at law in that he denied the natural justice and fair hearing by: (a) By permitting the Intended Plaintiffs to proceed in an interlocutory proceeding against “Unnamed Persons” as the sole Defendant(s). (b) By failing to require notice in pleadings to be served in the usual manner, or through substituted service, upon unnamed persons. (c) By prohibiting and refusing submissions by the counsel for [the Union] that there was an arguable issue that there was “labour dispute” within the meaning of the Civil Procedure Rules and the Judicature Act, R.S.N.S., 1989, Ch. 240, as amended, s. 44(1)(b). (d) Wrongfully denying [the Union] to complete its submission before denying status. 2. THAT the Learned Justice erred in law by allowing the sole defendant(s) “Unnamed Persons” to stand as the sole defendant(s) in the proceeding, or purported proceeding. 3. THAT the learned Justice erred in law in any other way that may become apparent from examination of the transcript of these proceedings. 4. THAT the learned Justice erred in law in denying status to [the Union]. [19] The Union requests the judgment appealed from be varied: ...by deleting “Unnamed Persons” as defendants or intended defendants in these proceedings. [20] No one was served on behalf of the Intended Defendant(s), Persons Unnamed, and no one appeared on behalf of that Intended Defendant(s) at the hearing of these applications. [21] Dexter opposes all of the applications advanced by the Union. [22] An appeal to this Court may only be filed by party to proceeding, or by an intervener added pursuant to the Civil Procedure Rules, (see McMahon, J. A., sitting in Chambers, in Johnston et al v. Prince Edward Island [1989] 73 Nfld. PEI, 219 (C.A.)). The Union was not joined as a party by Dexter, and was not joined as a party or as an intervener by order of the Supreme Court. The Union, therefore, does not have the status to file an appeal, unless it is first joined in either of these two capacities as a result of the applications presently before me. [23] It is convenient to deal with these applications by first considering the Union’s request to be joined as an intervener, pursuant to Rule 62.35; secondly, as party or amicus curiae, pursuant to Rule 8; and finally as party pursuant to Rule 5. At the hearing of these applications, counsel for the Union advised that he would not make any oral submissions respecting the applicability of Rule 5.02, as he concluded the provisions of Rule 5.04 were more pertinent. [24] Justice Hallett, in 1874000 Nova Scotia Limited et al. v. Adams et al. (1996), 1996 CanLII 5243 (NS CA), 156 N.S.R. (2d) 208, determined that judge of this Court, sitting in Chambers: ...does not have the jurisdiction to grant intervener status as there is nothing in Rule 62 or any other Rule or enactment that authorizes such an application to be made to the Chambers judge rather than to the Court. (at p. 215) (See also Hallett, J.A. in Future Inns Canada Inc. v. Nova Scotia Labour Relations Board (1996), 1996 CanLII 5240 (NS CA), 154 N.S.R. (2d) 358). [25] Prior to the decision in Adams, applications for intervention at the appeal level, in civil cases, were made under Rule in combination with Rule 62.31(1). (See Arnoldin Construction and Forms Limited v. Alta Surety Company (unreported, C.A. No. 106122, filed October 31, 1994); Arrow Construction Products Ltd. v. Nova Scotia (Attorney General) (1996), 1996 CanLII 5589 (NS CA), 148 N.S.R. (2d) 392.) [26] The decision in Adams led to the introduction of new rule entitled “Intervention on Appeal” providing for intervention in civil appeals. The rule came into effect in June of 1997. It was made rule of this Court by virtue of the authority granted to the judges of the Court of Appeal by s. 46 of the Judicature Act, RSNS, 1989 C.240. It is the rule governing interventions to this Court by persons who are interested in an appeal. It is the rule that should govern the consideration of applications for intervention to this Court. [27] The new rule is significantly different from the provisions of Rule 8. [28] I am satisfied that the Union’s application to be joined as an intervener pursuant to Rule 62.35 should not be granted, as there is no appeal outstanding to this Court. [29] The provisions of Rule 62.35(1), in my opinion, make the existence of an appeal an imperative. The section reads: Any person, including any person who intervened in proceeding pursuant to Rule 8, interested in an appeal, may, by application in accordance with Rule 62.31 apply to Judge in Chambers for leave to intervene upon such terms and conditions as the Judge may determine. (emphasis added) [30] This interpretation is supported by an examination of the provisions of Rule 62.35(2) and (3). [31] Rule 62.35(2) requires an intervention to be filed and served within 20 days after the filing of the notice of appeal. [32] Rule 62.35(3) sets out the test to be employed by the Chambers judge requiring the applicant to describe its interest in the appeal, to identify the position to be taken by it, on the appeal, and finally, to set out the submissions it wishes to advance on the appeal, and the reasons for believing that the submissions would be useful to the Court and different from those of other parties. [33] would dismiss the application of the Union to be joined as an intervener pursuant to Rule 62.35. [34] The alternative application that the Union be joined as an amicus curiae, or an interested person, pursuant to Rule 8, should be dismissed as well, for the reasons set forth by Justice Hallett in Adams. [35] The Union also relies upon Rule 5.04(2). [36] Rule 5.04 under the heading “Misjoinder and Nonjoinder of Parties”, provides: (2) At any stage of proceeding the court may, on such terms as it thinks just and either of its own motion or on application, ... (b) order any person, who ought to have been joined as party or whose participation in the proceeding is necessary to ensure that all matters in the proceeding may be effectively adjudicated upon, be added as party [37] Counsel for the Union relies upon the definition of the word “court” as it is found in Rule 1.05(e)(i) as granting sufficient authority to Chambers judge in this Court to entertain an application for joinder under Rule 5.04(2). [38] Rule 1.05(e)(i) provides: Definitions 1.05 In these Rules, unless the context otherwise requires, (e) “court” means, (i) in the Nova Scotia Court of Appeal, the court or judge or the judges thereof, whether sitting in court or Chambers. ... (emphasis added) [39] Rule 1.05(e)(i) was apparently not relied upon by counsel in Adams. [40] In my view, however, the limits on the jurisdiction of Chambers judge in this Court, as stipulated in Rule 62, constitute “context” restricting the broad definition expressed in Rule 1.05(e)(i). [41] would, accordingly, dismiss the application to join the Union pursuant to Rule 5.04 for the reasons expressed in Adams. [42] There are, however, additional cogent reasons that influence me to refuse the relief requested. [43] There are, to the best of my knowledge, no reported decisions in this jurisdiction dealing with an application by non-party to be added to proceeding as defendant, or as an Intended Defendant pursuant to Rule 5.04. The cases arising under this section are usually concerned with an application by an existing plaintiff to add an additional party as plaintiff, or as defendant (see P. A. Wournell Contracting Ltd. v. Allen (1980), 1980 CanLII 2720 (NS CA), 37 N.S.R. (2d) 125, (C.A.); Blair v. Alderney Consultants 1987 Ltd. (1995), 1995 CanLII 4154 (NS SC), 149 N.S.R. (2d) 184 (S.C.)). [44] Rule 5.04 was derived from Order 15, Rule of the Supreme Court Practice. While amendments were made to Rule in 1971, they are not relevant to the following comments which appear in the 1999 Supreme Court Practice. (Sweet Maxwell, Vol. I, 1998). The authors write in part: Generally in common law and Chancery matters plaintiff who conceives that he has cause of action against defendant is entitled to pursue his remedy against that defendant alone. He cannot be compelled to proceed against other persons whom he has no desire to sue (quoted with approval by Wynn-Parry J. in Dollfus Mieg, etc. v. Bank of England [1951] Ch. 33). Under this rule, however, person who is not party may be added as defendant against the wishes of the plaintiff either on the application of the defendant or on his own intervention, or in rare cases by the Court of its own motion. The jurisdiction of the court under this rule is entirely discretionary. (emphasis added) [45] Even if had jurisdiction to grant the relief requested under Rules 5.04, or Rule 8, would not exercise it in the circumstances of this case. [46] reach this decision because am of the view that the issues namely the joinder of the Union, and the continuation of the injunction order against the Intended Defendant(s), Persons Unnamed are issues that should be initiated at the level of the Supreme Court, and determined, by judge of that court. [47] Justice Tidman, in an interim application, determined on the basis of evidence adduced by affidavit, to continue an injunction “until further order of the Court”. The appropriate forum to consider the further continuation of that order is the Supreme Court. [48] The Union still has an opportunity to apply to judge of the Supreme Court for joinder, and if joined to make representations concerning the further continuation of the injunction. [49] Counsel on the hearing before me takes the position that on the afternoon of September 30th, 1999, he: ...attempted to intervene and make submissions to the Court on several aspects of the injunction application including attempting to gain intervener status in the intended action but that he was denied status and access to the hearing. [50] My examination of the transcript leads me to conclude that counsel for the Union confined his submissions to attempt to convince the Court to permit him to make representations: ...as friend of the Court, and of course, in the interests of my client as well, and in the interests of the operating engineers and the IBEW, who are not my clients. [51] This conclusion is supported by the absence of any affidavits filed on behalf of the Union before Justice Tidman supporting any submission to join the Union pursuant to Rule 5.04 or Rule 8. [52] In addition, the transcript does not disclose that counsel for the Union requested an adjournment in order to prepare the documents that are usually filed in support of an application under either of these Rules. [53] The order of October 1st simply continued the interim injunction “until further order of the Court”. These words were used, presumably, because the Court anticipated that Dexter would commence an action in the Supreme Court, as counsel had advised. That action, one would expect, would include request for injunctive relief for specific time limit. [54] All of the issues set forth in the proposed notice of appeal are issues that can properly be addressed by the Union if it is joined by application to Supreme Court judge. The forum of the Supreme Court is the proper forum to enable both parties to adduce evidence in support of their respective opposed submissions. [55] The Union further submits that if its submissions to grant intervener status pursuant to Rule and joinder pursuant to Rule 5.04 are rejected, then request is made to refer the issue of joinder as party to panel of this Court. This was the practice followed by Angers, J. A., of the Court of Appeal of New Brunswick, sitting in Chambers, in la Societe des Acadiens du Nouveau-Brunswick Inc., et al, v. Minority Language School Board No. 50 (1984) 53 N.B.R. (2d) 158. [56] In that case, an association of parents applied to Justice Angers to be added as party for leave to appeal the decision of Chief Justice Richard, rendered in an action brought by the Society against the School Board. The association of parents was not party to the action. [57] Justice Angers stated at p. 161: Since there is nothing in the Judicature Act nor in the Rules of Court which provides that such an application can be heard by single judge, it is my opinion that the application should be dealt with by the Court of Appeal. Accordingly, am adjourning these applications into the Court of Appeal to be heard by the Court on March 1st, 1984, at 2:00 p.m. [58] The Court of Appeal of New Brunswick subsequently determined 1984 CanLII 2954 (NB CA), [1984] D.L.R. (4th) 238, that an order should issue granting the association of parents leave to appeal as the defendant in the case. Rather than relying on Rule 15 of the New Brunswick Rules of Court dealing with intervention, the Court concluded that it had jurisdiction to add party for the purpose of launching an appeal, such authority arising from the provisions of the Judicature Act which incorporated the ancient practice of the High Court of Chancery in England. An appeal to the Supreme Court of Canada was dismissed 1986 CanLII 66 (SCC), [1986] S.C.R. 549. [59] decline the request to refer this matter to panel. [60] The history of the proceedings in the present case, is not comparable to the history of the proceedings in the Association case. [61] Chief Justice Richard presided over trial that lasted in excess of ten days. The parties had agreed on statement of facts and extensive viva voce evidence, expert and otherwise, was called. Voluminous exhibits were introduced. final determination of the issues was made by Chief Justice Richard in lengthy judgment. At the time the association of parents applied for joinder before Justice Angers, the decision of Chief Justice Richard determining the issues in the case had been rendered. The opportunity for participation at the trial level had, unlike the opportunity available to the Union here, long since passed. [62] The present proceeding is still at the stage of interlocutory proceedings. No viva voce evidence has yet been adduced. No final determination has been made by trial judge. The only order issued is one that provides for the continuation of an interim injunction until further order of the Court. Indeed, an action has not yet been commenced. This is in marked contrast to the situation that was before Mr. Justice Angers. [63] Rule 5.04 and Rule 8, are primarily designed for adding parties, or for intervention at the trial level. (See comments of Hallett, J.A. in Adams, at pp. 214-215, respecting Rule 8). [64] Rule 62.35 governs interventions to the Court of Appeal in an existing appeal. [65] A judge of this Court sitting in Chambers does not have the jurisdiction to grant intervener status pursuant to Rule 8 or to join a person as a party to a proceeding pursuant to Rule 5.04. [66] As the Union was not a party to the original proceeding commenced by Dexter, and has not been joined as an intervener, or as a party defendant, by order of a judge of the Supreme Court, the Union does not, in my opinion, have any standing to file an appeal. [67] do not accept the Union’s submission that it applied to Justice Tidman to be joined as an intervener, or as party, pursuant to Rule 5.04 or Rule 8. [68] Even if had the jurisdiction to add the Union as party pursuant to Rule 5.04, or as an intervener pursuant to Rule 8, would decline to exercise such discretion in view of the remedies available to the Union at the level of the Supreme Court. [69] would further decline to exercise my discretion to refer this matter to panel of the Court in view of the remedies available to the Union at the Supreme Court level. [70] Accordingly, I reject the applications for leave to obtain intervener status as a party, or as amicus curiae, or alternatively as an intervener, and I further reject the application to set down this matter for hearing before a panel of this Court. [71] In the circumstances, decline to award costs. Pugsley, J.A.

The respondent filed an interlocutory notice, ex parte application, against the intended defendants, seeking an interim injunction. The applicant union applied for leave to obtain intervener status as a party pursuant to Rule 62.35, or as amicus currie pursuant to Rule 8.02, or alternatively as an intervener pursuant to Rules 5.02, 5.04, and 8.01(1), and to bring an appeal from orders made by a Supreme Court judge in proceedings brought by the intended plaintiff against the intended defendants. Rejecting the applications, that a Court of Appeal judge sitting in chambers does not have the jurisdiction to grant intervener status or to join a person as a party to a proceeding. Furthermore, as the union was not a party to the original proceeding, and was not joined as an intervener, or as a party defendant, by order of a Supreme Court judge, it does not have standing to file an appeal.

2_1999nsca132.txt

Q.B. A.D. 1992 No. 3039 J.C. S. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: JOHN MIKOLAYCZYK, AS LITIGATION GUARDIAN OF JESSEE MIKOLAYCZYK, MINOR, SHERRY MIKOLAYCZYK and JOHN MIKOLAYCZYK RESPONDENTS (PLAINTIFFS) and CHRISTOPHER PAUL REID and CANADA TRUCK LEASE LTD. APPLICANTS (DEFENDANTS) G. A. Thompson for the applicants (defendants) J. A. Morrison for the respondents (plaintiffs) JUDGMENT BARCLAY J. March 28, 1995 This is an application by Christopher Paul Reid andCanada Truck Lease Ltd. (the "defendants") for an orderpursuant to the Court\'s inherent jurisdiction severing theissues of liability and damages. The grounds that were argued in connection with the application are as follows: (a) determination of the issue of liability in favour of the defendants will render determination of the issue of damages unnecessary; (b) given the quantum of damages claimed by the plaintiffs and the volume of evidence necessary to prove this aspect of the claim, the prior determination of the issue of liability may result in very significant reduction in trial time and costs; (c) the evidence to be heard with respect to each issue is easily segregated, and prior determination of the issue of liability will not require repetition of the evidence on that point; (d) the plaintiffs' position as to the quantum of damages claimed will not be prejudiced by prior determination of the point of liability; (e) severance of the issues will not result in any significant delay in the overall management of the action. FACTS This action arises out of tragic motor vehicle accident which occurred in the City of Saskatoon, on September 20, 1991. minor, Jessee Mikolayczyk ("Jessee"), who was riding his bicycle, collided with delivery truck operated by the defendant, Christopher Paul Reid, and owned by the corporate defendant, Canada Truck Lease Ltd. Jessee was seriously injured and such injuries include brain damage, fractured pelvis and laceration of the groin area with associated blood loss, internal injuries including injury to his bladder and bowel, collapsed lung, injury to the left eye, hearing loss and injury to the facial nerves. At the time of the accident he was years of age. Liability is in issue. The plaintiffs have served demand that the trial of the issues be heard by jury. Section of The Jury Act, 1981, S.S. 1980-81, as am. S.S. 1990-91, c. C-81, ss. 68(1) and (2) provides statutory right to jury trial in cases such as the one before the Court. This section reads: 1(1) In an action for libel, slander, malicious arrest, malicious prosecution or false imprisonment and in an action where the amount claimed exceeds $10,000, any party to the action may demand jury in accordance with The Queen's Bench (2) The party demanding jury: (a) shall deposit with the local registrar in advance of the trial any sum that the local registrar considers sufficient for the fees and expenses of the jury for the estimated length of the trial; and (b) subject to subsection (3), is responsible for the full cost of the jury and is not entitled to recover any part of the cost of the jury from the opposing party in the event of success at trial. (3) Where party is successful in an action: (a) for libel, slander, malicious arrest, malicious prosecution or false imprisonment; or (b) in respect of personal injury or death where the amount claimed exceeds $10,000; the judge presiding at the trial may make any order as between the parties regarding the cost of the jury that he considers appropriate. previous motion was made to sever and Goldenberg J. dismissed the application. He did however, grant leave to the defendants to reapply. The terms of Goldenberg J.'s order are as follows: IT IS ORDERED THAT: (a)on the undertaking of Mr. J. A. Morrison, counsel on behalf of the Respondents (Plaintiffs), that he has briefed medical practitioners and will be calling medical experts to testify as to the nature of the injuries which evidence is beyond the medical evidence which has been disclosed to date and which evidence the accident reconstruction expert retained by the Respondents (Plaintiffs) require, the application to sever the issue of liability from the issue of quantification of damages is dismissed; (b)as condition of the dismissal of the application the Respondents (Plaintiffs) shall serve and file Notice of Expert Witness disclosing the earlier referenced medical evidence referenced by their counsel in compliance with the Rules of Court at least 60 days prior to trial; (c)the Applicants (Defendants) are given leave to thereafter apply anew to sever the trial of the issues of liability and quantification of damages claimed; (d)the costs of the application are costs in the cause. THE LAW The controlling authority in Saskatchewan on the issue of severance is Central Canada Potash Co. Limited and Attorney General of Canada v. Attorney General of Saskatchewan, Minister of Mineral Resources of Saskatchewan and Government of Saskatchewan (No. 1), 1974 CanLII 976 (SK CA), [1974] C.A.). Culliton C.J. canvassed the circumstances under which an application for severance of issues will be granted. He referred to the case of Emma Silver Mining Company v. Grant (1879), 11 Ch.D. 918, in which Jessel M.R. considered this point and court's jurisdiction with respect thereto. Jessel M. R. noted, at p. 926, that: The discretion is general. Of course it is judicial discretion, and there must be sufficient reason for exercising it. He went on, at p. 927, to enunciate the rule when an application to sever is made by defendant: In case of this kind my opinion is that the Judge must have some evidence which will make it at least probable that the issue will put an end to the action. The Plaintiff is not to be harassed at the instance of the Defendant by series of trials, each trial taking issue on every link of the Plaintiff's case. That is not the meaning of the rule as understand it, but it may properly be applied in such case as that have stated, where the Judge has serious reason to believe that the trial of the issue will put an end to the action. He also noted that the situation is different than when the application is made by plaintiff, and at p. 928, commented on the difference thusly: The Defendant has of course right to shape his own case, and to say to the Plaintiff, "You must prove every part of your case; if can put my finger on one part of your case and shew that there is no foundation for it whatever, it is quite wrong to subject me to the whole expense of protracted investigation, and especially when you, the Plaintiff, cannot pay the costs of it". From his discussion of Emma Silver Mining Company v. Grant Culliton C.J., in Central Canada Potash Co. Limited, went on to enunciate what the Saskatchewan Court of Appeal considered to be the principles to be followed in determining an application such as the one at bar. He stated, at pp. 377 and 378: [T]hat separate trials should be granted only in exceptional cases, and in cases where the issues to be tried separately are simple, and that there should be some evidence which makes it at least probable that the trial of the separate issue will put an end to the action. think the principle is accepted by all courts that piecemeal trial of an action must be avoided. It appears as well that courts are reluctant to have separate trial of an issue if, in the disposition of that issue, all or most of the evidence will be called that would have been called to dispose of all the issues. In my opinion an application for severance of the issues should only be granted for the most compelling reasons and in cases in which it is probable that the trial of one issue will put an end to the action. In this case accept the submission of the plaintiffs that there is relationship between liability and damages and that both of these issues will depend extensively upon the same testimony. Counsel for the plaintiffs, in his written brief, succinctly set out the plaintiffs' position on severance in this case. He stated in part as follows: The determination of liability in this case will depend extensively upon the accident reconstruction of experts. In order to determine liability, to which the Plaintiff himself cannot speak, it will entail assessing the conflicting opinions of the accident reconstruction experts as to how the accident itself occurred. This will require, an examination of the injuries and how they where [sic] caused by the accident reconstruction expert. It is therefore necessary in order to determine liability to also determine the cause and effect of the impact of the Plaintiff and the Defendants' vehicle and that this is consistent with the nature of the injuries sustained. This will necessitate themedical testimony required to establish the quantum of damageswhich will be required to establish one of the factualunderpinning of the evidence of the accident reconstructionexpert that will be called by the Plaintiff. The Defendants are therefore grossly underestimating the substance and time that will be required to establish liability in this litigation. Such evidence would necessarily be replicated ina second trial with possibly an incongruous result. agree with this argument. In this case, the determination of liability will involve both an examination of the injuries and the contention between experts as to their origin and their significance in formulating an opinion as to how the accident happened. Therefore, severing the issues will cause repetition of this costly expert testimony and if not properly considered would be prejudicial to the plaintiffs. An important additional factor to consider is that the plaintiffs have served demand that the trial of the issues be heard by jury. If the issues of liability andquantum are severed, it is at least arguable that theplaintiffs may well be disentitled from their right to have ajury decide what is the appropriate quantum of damages. In Beddow v. Megyesi (1992), 1992 CanLII 735 (BC SC), C.P.C. (3d) 12 (B.C.S.C.), Thackray J. held no jury, whether discharged or not, can be reassembled some time later to carry on with the second part of the trial whence it followed that where the issue of liability on severed trial was tried by the court with jury, the only proper body left to hear the balance of the case is the judge who presided in the first part of the trial. On that issue Thackray J. stated at p. 19: If the liability portion of trial is by judge and jury, that jury, after discharge, cannot be reconstituted. In Lew v. Lee (1925), 1925 CanLII 320 (BC CA), 37 B.C.R. 81, [1926] D.L.R. 678 (C.A.), the Chief Justice noted that counsel could find no case, "nor can he cite one from all the history of our jurisprudence," where jury that had been discharged had been recalled to assess damages. The court held that such jury could not be recalled. I would go further and say that no jury, whetherdischarged or not, can be reassembled some time later to carryon with the second part of the trial. The court in Beddow also emphasized that credibility considerations, even though made on the issue of liability, are part of the entire trial. Evidence such as impact and severity of impact continue to be relevant evidence in the quantum portion of the trial. This was commented on by Trainor J. in Bernhardt et al. v. Vernon Board of School Trustees et al. (1979-80), 11 C.P.C. 82 (B.C.S.C. At p. 84 Trainor J. stated: Both the assessment of credibility and an appreciation of the nature and extent of injuries and consequent damage can best be achieved by trying the issues together. am also comforted by the comments of Thackray J. in Beddow in which he stated at p. 171: In Bernhardt, Mr. Justice Trainor referred to the remarks of Lord Denning in Coenen [v. Payne [1974] W.L.R. 984, [1974] All E.R. 1109 (C.A.)] that the normal practice is for liability and damages to be tried together, "but the courts should be ready to order separate trials wherever it is just and convenient to do so." However, Trainor J. preferred the approach of Stephenson L.J. in Coenen who stated [p. 1114]: In most personal injury cases the issues of liability and damages, though clearly separate, are rightly tried together. That is so, even where the issue of damages, perhaps because of complicated medical evidence, takes longer to try than the issue of liability. In personal injuries case the courts will not depart from the normal practice except for good reason. have examined the medical evidence which was filed by the solicitors for the plaintiffs as result of the order of Goldenberg J. and this evidence, in my view, is relevant both as to liability and quantum. In fact, the plaintiffs' accident reconstruction expert, Clifford Anderson, states in his affidavit filed herein, that these opinions are consistent with one of the factual considerations he used in formulating his opinion in the accident reconstruction report, namely that the nature and extent of the injuries sustained by Jessee, were result of crushing type force. There should be compelling reasons before a trialshould be severed. This has not been established in thiscase. Therefore, for all the above reasons, the application to sever the action is dismissed with costs.

The Defendants applied to sever the issues of liability and damages for purposes of the trial of this matter. The trial was to be held before a jury.HELD: 1)The Court has a general discretion as to severance of issues which must be exercised judicially. 2)Severance should only be ordered when the judge has a serious reason to believe that the trial of the issue proposed to be severed will put an end to the action. 3)The Court accepted the Plaintiff's submission that expert medical evidence would be necessary to establish the cause of the accident since the Plaintiff had suffered brain damage and would be unable to testify. This medical evidence would have to be repeated to establish the Plaintiff's damages if the issues were severed and liability was found. 4)The severance of the issues would deny the Plaintiff the right to have the jury determine his damages. A jury cannot be disassembled and then recalled to conclude the trial of the remaining issues. 5)The Court was of the view that there should be compelling reasons before issues should be severed for trial, but that no compelling reason had been established in this case.

7_1995canlii5894.txt

nan Editor’s Note: Corrigendum released July 20, 2006. Original judgment has been corrected with text of corrigendum appended. QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2006 SKQB 231 Date: 2006 05 16 Docket: Q.B.G. No. 1055/2004 Judicial Centre: Saskatoon BETWEEN: THOMAS WALTON, DR. VANCE CHOW and MEGAN ENGEDAHL, suing by her litigation guardian, WENDY ENGEDAHL, and MYTRAVEL CANADA HOLDINGS INC., SKYSERVICE AIRLINES INC., SIGNATURE VACATIONS LTD., IAN RAMPERSAUD and MARIA SOUSA, Counsel: Ronald P. Piché for the plaintiffs Bruce W. Wirth for the defendants JUDGMENT DOVELL J. May 16, 2006 [1] The plaintiff, Thomas Walton, the representative plaintiff, applies for certification of this action pursuant to The Class Actions Act, S.S. 2001, c. C‑12.01, on behalf of himself and the other passengers of an international flight being Flight 361 from Punta Cana, Dominican Republic, to Regina and Saskatoon, Saskatchewan, Canada, on January 21, 2004. The flight was delayed for about an hour and half at the Punta Cana airport as result of several evolving mechanical difficulties referred to by the pilot as “creeping delay” resulting in uncomfortable conditions on the airplane for the passengers. [2] On June 21, 2004, statement of claim was issued with regard to this case and on October 20, 2004, an amended statement of claim brought under The Class Actions Act. In response, on November 29, 2004, statement of defence was entered on behalf of all of the defendants. Subsequently there has been with the consent of counsel for the plaintiff an amended statement of defence made on February 3, 2005, and an amended amended statement of defence made on February 24, 2006. [3] On February 21, 2005, an order was made pursuant to s. 4(2)(a) of The Class Actions Act appointing myself as Justice of this Court to hear the certification application pursuant to s. 4(2)(b) of the Act. [4] Prior to the actual certification hearing counsel for the defendants objected to the form of the notice of motion in that it was not in strict compliance with Form 5D which resulted in the plaintiff redrafting the notice of motion for certification brought under The Class Actions Act. [5] Argument of the certification application was actually made on February 24, 2006; however, counsel for the plaintiff was given until March 3, 2006, to file case law with regard to the narrow issue of the meaning of “bodily injury” within Article 17 of the Montreal Convention of 1999 and counsel for the defendants was given until March 10, 2006, to file any material in reply. Three cases were provided to the Court by plaintiff’s counsel who requested the opportunity of presenting further oral argument to the Court which the Court heard on April 28, 2006. [6] In support of the certification application the applicant filed two affidavits of the proposed representative plaintiff, Thomas Walton, and an affidavit of Randy Slusar, the son‑in‑law of Thomas Walton, who both were passengers on Flight 361. [7] The defendants filed five affidavits of flight attendants, including those of Brenda Martin, Louanne Mountain, Sheila Johnstone, Nancy McEwen and Alejandra Rosenberg; the affidavit of Maria Xavier (Sousa), the customer service manager of Flight 361; the affidavit of the pilot of Flight 361, Ian Rampersaud; the affidavit of Joel Birnbaum, the director of claims and facilities of MyTravel Canada Holdings Inc.; the affidavit of Marylou Lavalle, supervisor with customer relations at Skyservice Airlines Inc.; and the affidavit of Christina Groth, vice president of aviation and operations of Signature Vacations. B. Nature of The Claim [8] The statement of claim seeks to bring the action on behalf of 215 passengers who boarded Skyservice Boeing 757 200 aircraft, Flight 361, at approximately 4:10 p.m. on January 21, 2004, in Punta Cana with destination to Regina and Saskatoon. The plaintiff claims damages on his behalf and on behalf of all members of the class of plaintiffs which he seeks to represent in this class action for negligence for which he alleged all of the defendants are liable; unlawful confinement on the part of the defendant, Rampersaud and breach of contract with regard to the defendants, MyTravel and Signature. [9] Specifically, the following pleadings are contained in the amended statement of claim: 15. This action is brought on behalf of the Plaintiffs in their own right and ... as representatives of all passengers of the aforementioned Flight 361 and all passengers who have suffered personal injury, economic loss or damage as result of the events described in Paragraph 10 herein. 17. The Plaintiffs state that each Defendant was negligent in its dealing with the Plaintiffs and each Defendant owed duty of care to them. The Plaintiffs state that each defendant, inter alia: (a) Owed each Plaintiff duty of care to ensure that their health and well‑being were maintained during the flight; (b) Knew that breach of its duty would cause serious and severe damages to the Plaintiffs; (c) Knew or ought to have known of the potential for extreme heat in Puna [sic] Cana and should have taken all reasonable precautions to ensure that there were no excessive delays after the Plaintiffs boarded the aircraft. The Plaintiffs state that the Defendants were negligent in not taking such precautions; (d) Knew or ought to have known of mechanical difficulties which could arise with the operation of the aircraft and failed to properly maintain and repair it. The Plaintiffs state that the defendants were negligent in not properly maintaining and repairing the aircraft; (e) Knew or ought to have known that the Puna [sic] Cana airport did not have properly functioning air conditioning cart and should have made alternate arrangements as result or, alternatively, taken additional precautions to ensure that there were not excessive delays after the Plaintiffs boarded the aircraft. The Plaintiffs state that the Defendants were negligent in not making proper arrangements or taking such precautions; (f) Knew or ought to have known that Puna [sic] Cana airport would require satisfactory advance payment for the use of the air conditioning cart or alternatively, would require approved credit for use [of] the air conditioning cart. The Plaintiffs state that the Defendants were negligent in not having available funds to utilize the cart or for failing to have proper financing in place; (g) Knew or ought to have known that proper financing for the use of the Puna [sic] Cana airport, its equipments, and facilities was required in order to utilize its airport services. The Plaintiffs state that the Defendants were negligent in not having financing in place at Puna [sic] Cana; (h) Such further and other acts not now known to the Plaintiffs. 18. The Plaintiffs state that the Defendants SkyService, Rampersaud, and Sousa were also negligent in that they, inter alia: (a) Failed to provide water and other necessaries in order to sustain and/or comfort the Plaintiffs during their ordeal; (b) Failed to properly stock the aircraft with water and other necessaries in order to sustain and/or comfort the Plaintiffs during their ordeal; (c) Failed generally to attend to the needs of the Plaintiffs during their ordeal; (d) Such further and other acts not now known to the Plaintiffs. 19. The Plaintiffs state that the Defendant, Rampersaud, is liable for the tort of unlawful confinement by refusing to permit the passengers to disembark from the aircraft during the period in question after several passengers had requested that they be allowed to leave. The Plaintiffs further plead and rely upon the Airline Pilots Association Code of Ethics in support of their claim. 20. The Plaintiffs state that the defendant, SkyService, is vicariously liable for the acts of the Defendants Rampersaud and Sousa, as Rampersaud and Sousa were acting throughout in their capacity as employees of SkyService and/or as agents and or designates of SkyService. 21. The Plaintiffs state that the Defendants My Travel and Signature have breached their contract with them, term of which either expressly or impliedly was, inter alia, that: (a) The air transportation‑certified carrier hired would provide safe, comfortable, trouble‑free and secure air travel; (b) The air transportation‑certified carrier hired would be properly financed and/or have proper line of credit in order to utilize the equipment and facilities at the airports frequented by the air transportation‑certified carrier; (c) The reasonable efforts had been made in selecting the air transportation‑certified carrier utilized; (d) such further and other breached not now ascertained by the Plaintiffs. 22. The Plaintiffs hereby plead the provisions of the Warsaw Convention as they may apply to this action and in particular rely on Articles 1, 19 and 20. 23. The Plaintiffs state that purported disclaimer regarding liability as result of the actions or inactions of the air transportation‑carrier is of no force and effect as it was not part of the terms of the contract and was communicated after consideration had been paid to the Defendants. 24. The Plaintiffs state that the conduct and actions of the Defendants, SkyService, MyTravel, Signature, Ian Rampersaud and Maria Sousa, were high‑handed, callous and arrogant, warranting exemplary and/or punitive damages. The Plaintiffs state the utter disregard shown for their welfare and the Defendant’s attempts to profiteer from the Plaintiff’s thirst warrant increased damages. [10] The amended amended statement of defence of February 24, 2006, raises numerous defences including the following as plead: 10. In response to the entire Amended Statement of Claim and in response to all of the causes of action alleged against the various defendants, the defendants state that the three named plaintiffs, and all other passengers on Flight 361, were travelling on journey of international carriage by air, departing from Canada and returning to Canada, with an agreed stopping place in Punta Cana of the Dominican Republic. Accordingly, the rights and obligations of the parties are governed exclusively by the Convention for the Unification of Certain Rules for International Carriage by Air (the “Montreal Convention, 1999”), which is incorporated into the laws of Canada by the Carriage by Air Act, as amended, R.S.C. 1985, c. C‑26 (hereinafter referred to as the “Convention”). 11. The defendants state that the claims of the named plaintiffs and of any other passengers on Flight 361 are governed by the Convention, which provides the sole cause of action and only remedy for all claims arising in relation to Flight 361, including all claims for damages for bodily injury suffered by passengers. Article 17, paragraph and Article 29 of the Convention read as follows: “17.1 The carrier is liable for damage sustained in case of death or bodily injury of passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking. 29. In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non‑compensatory damages shall not be recoverable.” 12. The defendants state that the plaintiffs have no cause of action against any of the defendants by reason of the following: (a) none of the plaintiffs suffered bodily injury within the meaning of Article 17, paragraph of the Convention; and (b) if any of the plaintiffs did suffer bodily injury, which is not admitted but denied, the bodily injury was not caused by an accident within the meaning of Article 17, paragraph of the Convention. 13. In the alternative, the defendants deny any negligence, breach of contract or unlawful confinement on their part. The defendants further deny that the doctrine of res ipsa loquitor has any application to the facts of this case. C. The Class Actions Act and The Queen’s Bench Rules [11] The following provisions of the Act have application to the certification application before the Court: Interpretation nan In this Act: ... “class” means two or more persons with common issues respecting cause of action or potential cause of action; ... “common issues” means: (a) common but not necessarily identical issues of fact; or (b) common but not necessarily identical issues of law that arise from common but not necessarily identical facts; ... Class Certification nan The court shall certify an action as class action on an application pursuant to section or if the court is satisfied that: (a) the pleadings disclose cause of action; (b) there is an identifiable class; (c) the claims of the class members raise common issues, whether or not the common issues predominate over other issues affecting individual members; (d) class action would be the preferable procedure for the resolution of the common issues; and (e) there is person willing to be appointed as representative plaintiff who: (i) would fairly and adequately represent the interests of the class; (ii) has produced plan for the class action that sets out workable method of advancing the action on behalf of the class and of notifying class members of the action; and (iii) does not have, on the common issues, an interest that is in conflict with the interests of other class members. Certification application 7(1) The court may adjourn the application for certification to permit the parties to amend their materials or pleadings or to permit further evidence to be introduced. (2) An order certifying an action as class action is not determination of the merits of the action. ... Certain materials no bar to certification nan The court shall not refuse to certify an action as class action by reason only of one or more of the following: (a) the relief claimed includes claim for damages that would require individual assessment after determination of the common issues; (b) the relief claimed relates to separate contracts involving different class members; (c) different remedies are sought for different class members; (d) the number of class members or the identity of each class member is not ascertained or may not be ascertainable; (e) the class includes subclass whose members have claims that raise common issues not shared by all the class members. [12] In respect of The Queen’s Bench Rules applicable upon certification application, Rule 82 provides: Application for Certification 82(1) Notice of Motion for Certification pursuant to clause 4(2)(b) or section of the Act shall be in Form 5D. (2) An application for certification order pursuant to section of the Act must be supported by an affidavit of the proposed representative plaintiff: (a) deposing to the proposed representative plaintiff’s willingness to be appointed; (b) setting out the basis of the proposed representative plaintiff’s personal claim, where applicable, and the reason the proposed representative plaintiff believes that common issues exist for the rest of the members of the class; (c) setting out objective criteria for determining membership in the proposed class, and providing the proposed representative plaintiff’s best information on the number of members in the proposed class; (d) setting out sufficient information to establish that the proposed representative plaintiff would fairly and adequately represent the interests of the class and is aware of the responsibilities to be undertaken; (e) exhibiting plan for the class action that sets out workable method of: (i) advancing the action on behalf of the class; and (ii) notifying class members of the action; and (f) setting out sufficient information to establish that the proposed representative plaintiff does not have, on the common issues, an interest that is in conflict with the interests of other class members. [13] Although the applicant argued that if ever there was case that should be certified, this case was it as it involved defined group of passengers in confined space, being an airplane, over small period of time, the defendants opposed the certification application on the basis that none of the five criteria as set out in s. of the Act had been met by the applicant. [14] The Court agrees. Although the Court would have dismissed the certification application on the sole basis of not meeting the criteria as set out in s. 6(a) of the Act, for reasons that will be thoroughly canvassed in this judgment, it would have also dismissed the certification application on the basis of the other criteria as outlined in s. of the Act not being met for reasons which will be briefly outlined in this judgment. (1) Section 6(a) cause of action [15] The amended statement of claim alleges negligence on the part of all of the defendants, unlawful confinement on the part of the pilot, Rampersaud, and breach of contract as against the defendants MyTravel and Signature Vacations. [16] As stated by McLellan, J. in Daniels v. Canada (Attorney General), 2003 SKQB 58 (CanLII), 230 Sask R.120 at paras. [13] Suffice it for me to say that although the onus is on the plaintiffs, on certification application, to satisfy the Court that the pleadings disclose cause of action, it is not very high onus. [14] The test to be applied in certification applications is similar to those used in applications to strike statement of claim as disclosing no cause of action. Firstly, all allegations of fact pleaded are to be accepted as true and secondly, pleadings will only be struck if it is plain and obvious that the plaintiffs cannot succeed. In my view court should be reluctant to deny plaintiff his or her day in court. And at paragraph 18: [18] The generous approach to be adopted on this application is specifically spelled out in s. of the CAA which provides: “7(1) The court may adjourn the application for certification to permit the parties to amend their materials or pleadings or to permit further evidence to be introduced. “(2) An order certifying an action as class action is not determination of the merits of the action.” [17] Accordingly, this Court in determining this certification application has assumed that all of the specific allegations as contained in the amended statement of claim are true. [18] The question to be determined is whether or not it is plain and obvious that the applicant’s claim does not disclose cause of action. [19] The defendants argue that the statement of claim does not disclose cause of action as against any of the defendants as any potential claim that any of the passengers of Flight 361 might possibly have against any of the defendants is governed solely by the provisions of the Montreal Convention of 1999 and that the requirement of Article 17(1), that namely, bodily injury must be established by the applicant has not been met. The Court agrees. [20] Although the applicant pleaded in his amended statement of claim the provisions of the Warsaw Convention, the applicable convention for consideration of this Court with regard to the passengers aboard Flight 361, being an international flight, is the Montreal Convention of 1999. [21] The Montreal Convention of 1999 is incorporated into the laws of Canada by the Carriage by Air Act, as amended, R.S.C. 1985, c. C‑26, and is set out as Schedule VI of the Act. The Montreal Convention of 1999 modernized the Warsaw Convention and became effective on November 4, 2003. [22] The purpose of the Carriage by Air Act as outlined in the preamble of the Statute is as follows: An Act to give effect to certain conventions for the unification of certain rules relating to international carriage by air. [23] There is no question that Flight 361 from Punta Cana, Dominican Republic to Regina and Saskatoon, Saskatchewan, was an international flight and thus the provisions of the Carriage by Air Act are applicable. [24] Section 2(2.1) of the Carriage by Air Act states: (2.1) Subject to this section, the provisions of the Convention set out in Schedule VI, in so far as they relate to the rights and liabilities of carriers, carriers’ servants and agents, passengers, consignors, consignees and other persons, have the force of law in Canada in relation to any carriage by air to which the provisions apply, irrespective of the nationality of the aircraft performing that carriage. [25] The general relevant provisions of the Montreal Convention of 1999 as contained in Schedule VI of the Carriage by Air Act to this certification application include the following: Schedule VI Chapter General Provisions Article Scope of Application 1. This Convention applies to all international carriage of persons, baggage or cargo performed by aircraft for reward. 4. This Convention applies also to carriage as set out in Chapter [Carriage By Air Performed by Person Other Than Contracting Carrier], subject to the terms contained therein. [26] The specific governing sections of the Montreal Convention of 1999 with regard to the defendant, Skyservice, being the carrier, are Articles 17(1) and 29. Those provisions read as follows: Chapter III Liability of the Carrier and Extent of Compensation for Damage Article 17 Death and Injury of Passengers ... 1. The carrier is liable for damage sustained in case of death or bodily injury of passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking. [Emphasis of the Court.] ... Article 29 Basis of Claims In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non‑compensatory damages shall not be recoverable. [Emphasis of the Court.] [27] The specific governing provision of the Montreal Convention of 1999 with regard to the defendants, Ian Rampersaud and Maria Sousa, being the servants and/or agents of the carrier, Skyservice, is Article 30(1). It provides: Article 30 Servants, Agents Aggregation of Claims 1. If an action is brought against servant or agent of the carrier arising out of damage to which the Convention relates, such servant or agent, if they prove that they acted within the scope of their employment, shall be entitled to avail themselves of the conditions and limits of liability which the carrier itself is entitled to invoke under this Convention. [28] Chapter of the Montreal Convention of 1999 provides for situations in which the carriage of air was performed by person other than the contracting carrier. In this case those entities to which Chapter would be applicable include the defendants, MyTravel and Signature. These operators sold packages to passengers including airfare and then made arrangements with the carrier being Skyservice to include the international flight. Chapter thus has expanded the applicability of the Convention to entities previously not covered by the Warsaw Convention. [29] In particular, Article 39 provides: Chapter Carriage by Air Performed by Person Other Than the Contracting Carrier Article 39 Contracting Carrier Actual Carrier The provisions of this Chapter apply when person (hereinafter referred to as “the contracting carrier”) as principal makes contract of carriage governed by this Convention with passenger or consignor or with person acting on behalf of the passenger or consignor, and another person (hereinafter referred to as “the actual carrier”) performs, by virtue of authority from the contracting carrier, the whole or part of the carriage, but is not with respect to such part successive carrier within the meaning of this Convention. Such authority shall be presumed in the absence of proof to the contrary. [30] As well, Article 43, like Article 30, provides any servant or agent of carrier or of the contracting carrier shall, if they prove that they acted within the scope of their employment, be entitled to avail themselves of the conditions and limits of liability which are applicable under the Convention to the carrier whose servant or agent they are. [31] As previously stated, the Court accepts and agrees totally with the defendants’ argument that all of the defendants as named in the lawsuit are governed by the provisions of the Montreal Convention of 1999. That includes the defendant carrier, Skyservice, the contracting carriers, being MyTravel and Signature, and the agents and/or servants of the carrier, being Sousa and Rampersaud. The Montreal Convention of 1999 serves as the exclusive remedy for all passengers in Flight 361 as against all of the defendants. [32] The wording of Article 29 is clear and obvious. Any claim for damages of passenger of an international flight against carrier, contracting carrier or employee of either carrier can only be brought within the ambit of the Montreal Convention of 1999. [33] The applicant provided to the Court the case of Ruth Ann Reed, et al. v. Forwood Cloud Wiser, Jr., et al, 414 F.Supp. 863 (S.D. N.Y. 1976), wherein the issue before the United States District Court for the Southern District of New York was whether the Warsaw Convention’s limitation of liability provisions were applicable to employees of TWA. The legislation at the time being the Warsaw Convention had no definition of “carrier” and as such the court found that the Warsaw Convention did not limit the liability of employees or agents of carrier. [34] That loophole, so to speak, has been filled by the inclusion in the Montreal Convention of 1999 of the expanded limitation of liability provisions as contained in Article 30(1) to include the servants and/or agents of the carrier in this case being the defendants Sousa and Rampersaud and Article 39 with regard to the contracting carriers in this case being MyTravel and Signature. [35] The applicant also provided the Court with the decision of Akehurst and Others v. Thomson Holidays Ltd. and Britannia Airways Ltd., decision from Wales which involved claim against commercial passenger airline (Britannia) and package tour operator (Thomson) arising from crash landing. Although the court found that the claimants had no right of recovery against Britannia in relation to purely psychological injuries, in view of Article 17, liability was established against the tour operator for psychological injuries not because the tour operator was not covered by the Convention but because of the express terms of contract as between the tour operator and the plaintiff which allowed for the recovery of such damages. The court in that case was also dealing with the Warsaw Convention of 1929 as opposed to the provisions of the Montreal Convention of 1999, including Chapter V, which now recognizes the existence of both contracting carrier and actual carrier, and thus was of little assistance to the Court. [36] Although no specific case law was provided to the Court with regard to the Montreal Convention of 1999, there is ample case law with regard to its predecessor, the Warsaw Convention, as to its exclusive remedy for passengers. Those cases include Connaught Laboratories Ltd. v. British Airways (2002), 2002 CanLII 4642 (ON SC), 217 D.L.R. (4th) 717 (Ont. S.C.J.), aff’d (2005), 2005 CanLII 16576 (ON CA), 253 D.L.R. (4th) 601 (Ont. C.A.), at paragraph 26: 26 Further, as question of law, the Warsaw Convention would not be ousted in this situation. The goods were damaged in the course of transit between countries. There is remedy for that damage provided for in the Warsaw Convention. That being the case, the Warsaw Convention applies regardless of whether there might be other remedies available as matter of domestic law. ... The Warsaw Convention is meant to be an exhaustive source of remedies for damage sustained as result of international carriage by air. ... [37] As well, in McDonald v. Korean Air (2002), 26 C.C.L.T. (3d) 271 (Ont. S.C.J.), aff’d (2003), 26 C.C.L.T. (3d) 275 (Ont. C.A.), leave to appeal to S.C.C. refused, [2003] S.C.C.A. No. 160, Hermiston J. concluded Article 17 of the Warsaw Convention was “exclusive and exhaustive” in respect of what the plaintiff could argue in terms of liability allegations. [38] Another case of note is Gal v. Northern Mountain Helicopters Inc. (1998), 1998 CanLII 6810 (BC SC), 54 B.C.L.R. (3d) 87 (B.C.S.C.), aff’d 1999 BCCA 486 (CanLII), 177 D.L.R. (4th) 249, in which the Court accepted that any remedies sought for personal injury suffered on an international flight were confined to the Warsaw Convention. At paragraphs 31 and 32 the court stated: [31] As well, have concluded that the plaintiff has no cause of action in negligence in light of this international carriage by air which brings it within the jurisdiction of the Warsaw Convention. The Warsaw Convention remedy pursuant to Article 17 is exclusive, that is, it extends to all claims made by passenger against carrier arising out of international carriage by air. See Article 24(1) and (2). [32] If the flight is one to which the Warsaw Convention applies, and am satisfied that it is, the plaintiff has no claim except for that permitted under the Warsaw Convention. See Sidhu v. British Airways PLC, [1997] All E.R. 193 (H.L.). [39] Accordingly, since Flight 361 was an international flight to which the Montreal Convention of 1999 applied with respect to all of the defendants, it is clear and obvious to this Court that the sole and exclusive claims that can be advanced by the plaintiffs are claims that must be launched pursuant to Article 17, Paragraph 1, of the Montreal Convention of 1999. In light of that, the plaintiffs’ claims outside the ambit of the Montreal Convention of 1999 in negligence, breach of contract, unlawful confinement and the request for punitive damages as outlined in the statement of claim do not disclose a cause of action. [40] Nor has the applicant established that cause of action exists within the meaning of Article 17(1) of the Montreal Convention of 1999. [41] Article 17(1) of the Montreal Convention of 1999 provides remedy for passengers who have been injured on international flights. If passenger sustains “bodily injury” as result of an accident which took place on board the aircraft or in the course of embarking or disembarking, the carrier is liable without proof of fault on the part of the carrier. strict liability regime has been set up with cap of damages established within the Convention if the passenger fits the criteria as set out in Article 17(1). That would be the sole and exclusive remedy available to the passenger. [42] It must be established that passenger sustained “bodily injury.” In this case there is absolutely no evidence of “bodily injury” in any of the materials filed by the applicant, including the amended statement of claim and affidavit material. There is no evidence that any bodily injury was sustained by either the proposed representative plaintiff or any of the other passengers in the aircraft during the international flight. [43] It is settled law that for a passenger to have access to Article 17(1), the individual must have suffered a bodily injury as opposed to mere mental anguish. The case law, as established, interpreting Article 17 of the Warsaw Convention (almost identical to Article 17 of the Montreal Convention of 1999) is entirely consistent that an individual must have suffered from bodily injury being palpable, conspicuous or physical injury (Rosman v. Trans World Airlines, Inc., 34 N.Y.2d 385 (1974)) as opposed to mere anguish or psychological injury. [44] “Bodily injury” pursuant to Article 17 has been described as “direct, concrete bodily injury as opposed to mere manifestation of fear and anxiety in Carey v. United Airlines, 255 F.3d 1044 (9th Cir. 2001). [45] There is some limited acceptance for psychological injury causally connected to recognizable bodily injury in very specific circumstances as was determined in Ehrlich v. Am. Airlines, Inc., 360 F.3d 366 (2nd Cir. 2004), as stated by the United States Court of Appeals for the Second Circuit: ... Our exhaustive examination of these sources leads us to conclude that carrier may be held liable under Article 17 for mental injuries only if they are caused by bodily injuries. [46] Also Terrafranca v. Virgin Atlantic Airways, 151 F.3d 108 (3rd Cir. 1998), provided that the only situation in which psychological injury is compensatory is when the psychological injury flows directly from bodily injury. [47] As previously pointed out, the court recently in Wales in Akehurst and Others v. Thomson Holidays Ltd. held that the tour operator was not liable for psychological injuries suffered by the claimants as result of the application of the Warsaw Convention but liable contractually independent of the Warsaw Convention. [48] Having accepted the allegations as true as contained in the statement of claim, the only facts the Court has before it is that the environmental conditions on the aircraft threatened the health and lives of the passengers. As well, in addition to the prolonged physical pain and duress, the on‑going discomfort triggered psychological and/or emotional trauma which increased as the ordeal persisted. [49] Even if the Court were to consider in addition to the facts pleaded in the statement of claim the evidence as contained in the affidavits of Thomas Walton in determining whether it had “any evidence” of bodily injury, the most that Mr. Walton swore to was that the passengers he could see were sweat‑soaked, disrobing and red faced. Babies were crying and even shallow breaths had become difficult for him and his wife. [50] At best, what has been pleaded is physical discomfort as opposed to bodily injury as contemplated by Article 17(1). [51] The Court has carefully considered the deficient information as disclosed by the proposed representative plaintiff regarding any “bodily injury” as well as the affidavit material filed by the defendants and, in particular, the five flight attendants and Maria Xavia. All of the flight attendants have sworn that while it was somewhat uncomfortable on the plane before the air conditioning was able to be started, at no time were any medical forms completed by any flight attendant which would have been required if any medical treatment had been sought by any passenger and provided by the flight crew. [52] Having determined that it has not been established by the applicant that any bodily injury had been sustained by any of the passengers on Flight 361 or that any psychological injury had been sustained as a result of any bodily injury as required within the meaning of Article 17(1) of the Montreal Convention of 1999, as a matter of law it is plain and obvious that the claim does not raise a reasonable cause of action as within Article 17(1) of the Montreal Convention. [53] The applicant’s counsel argued that in the event that the Court was to determine that the Montreal Convention of 1999 was applicable and was to determine that the Applicants had not sustained “bodily injury”, that the Court should allow the applicant to amend its amended statement of claim to bring the claim within the ambit of the Montreal Convention of 1999. That, according to the applicant, was clearly available to the Court pursuant to Section 7(1) of the Act. [54] The Court is not prepared to grant the applicant leave to amend their claim as, under the circumstances of this case, it would not be appropriate. The Court accepts that the applicant has candidly put forth his best evidence as to what transpired to he and the other passengers before Flight 361 took off for Canada from Punta Cana, Dominican Republic. It would not be feasible to the Court that the applicant would now put forth affidavit material that the passengers all suffered from something other than discomfort or anxiety. On the chance that an individual passenger did sustain bodily injury, certainly he or she could pursue litigation against the appropriate defendants independent of this application for class action. But as class, to allow the applicant the opportunity of amending his materials would serve no useful purpose. If Mr. Walton or any of the passengers had sustained any bodily injury, the Court would have expected that fact to have been pleaded. The Court assumes that it was not pleaded because no passenger on that plane sustained anything more than short term discomfort. While certainly the Court acknowledges that the situation that arose was understandably irritating, at the end of the day, in the year 2004, is to be regrettably expected as part of today’s perils of air travel. [55] For all the reasons as outlined herein the applicant has failed to establish the first criteria as set out in s. 6(a) of the Act, and the application for certification shall be dismissed on that basis alone. [56] However, in the event the Court is in error in that regard, the Court wishes to briefly outline its reasons why it would have dismissed this application for certification on each of the other four criteria as outlined in s. of the Act. (2) Section 6(b) identifiable class [57] At first blush it would appear that “215 passengers of Flight 361” would certainly be an identifiable class; however, it is not quite that simple. [58] The applicant bears the onus of establishing that group of people have the same causes of action against the defendants about common issues. The Court has concern that very few, if any, of the other passengers on the flight other than Mr. Walton and his son‑in‑law, Mr. Slusar, wish to take action as against the defendants. At most, Mr. Walton in paragraph 19 of his affidavit sworn February 2, 2005, states: ... That have had contact with many of the individuals who were on board this aircraft and attached to this my Affidavit and marked as Exhibit “A” is list of those people together with their place of residence and phone numbers. [59] And at paragraph 20(d): 20 ... (d) have the support of at least 165 passengers, either individually or through group representative, out of the approximately 215 passengers. These individuals have contacted me and entrusted me to act on their behalf. believe would have nearly 100% support of the passengers if had way to contact all of them; [60] The Court has difficulty in accepting that all of these people Mr. Walton is referring to wish to commence an actual action as against the defendants as opposed to just standing behind Mr. Walton. Of significance to the Court is the material filed by the applicant, including statements from several other passengers whose concerns can be categorized as general venting against the airline as opposed to filing specific complaint, as well as the large amount of evidence as filed by the flight attendants who all consistently have sworn that while the cabin of the aircraft was somewhat uncomfortable for period of time, at no time was any airline personnel required to complete medical report for any passenger on Flight 361 which would have been required if any form of medical attention or treatment had been provided on the aircraft. In other words the suggested identifiable class is very overstated and over‑inclusive. [61] An identifiable group is not just group of people. As stated by our Court of Appeal in Jameson Livestock Ltd. v. Toms Grain Cattle Co. Ltd., 2006 SKCA 20 (CanLII), [2006] S.J. No. 93 (QL), at paragraph 28: 28 However, the mere fact that group of people is identifiable is not sufficient to render them class for the purpose of class action. In addition, there must be rational connection between the proposed class definition, the proposed causes of action and the proposed common issues. In effect, the class description must describe persons who in fact have claim asserted in the statement of claim. This has often been interpreted to mean that all members of the proposed class must have at least colourable claim and that the class definition should not be over‑inclusive or under‑inclusive, sweeping in those who do not have claim against the proposed defendants or arbitrarily excluding others who share the same cause of action. ... [62] The individual circumstances of each passenger would have to be analyzed in depth both as to how they booked his or her vacation, their reaction to the unfortunate situation as well as what transpired after the flight, e.g., whether or not they accepted the settlement and cashed in his or her settlement cheque. [63] In this case, assuming the passengers exclusive remedies are as contained in the Montreal Convention of 1999, it would have to be established they had sustained “bodily injury” or psychological injury resulting from bodily injury. At this time there is no evidence that the proposed representative or any of the other passengers suffered from any bodily injury as opposed to anxiety. There is no identifiable class of passengers who have cause of action against anyone and thus there is no identifiable class. [64] Even in the event any of the passengers were entitled to pursue claim, there is no properly identifiable class. As stated earlier, there are too many variables in the claims for negligence, unlawful confinement and breach of contract. [65] With regard to the unlawful confinement as against the pilot, there is only the evidence of Mr. Slusar that he was not allowed to leave the aircraft; no one else. One person, namely, Mr. Slusar, does not constitute class. [66] With regard to the claim in negligence, consideration in each case would have to be given to the defendants’ duty, particular breach of that duty, the cause of any damage and the particular damages to each passenger in light of the specific circumstances of each individual passenger. If individual circumstances have to be looked at, that is not an identifiable class. [67] Also the claims of breach of contract as against the defendants, MyTravel and Signature, would need individual analyses into the circumstances of each passenger. Extensive analysis would be needed. Some passengers booked packages through MyTravel, some passengers booked packages through Signature and some passengers booked their trip themselves through the internet or other means. There would be different terms and conditions attached to these different modes of contracts that would have to be analyzed. [68] As well, there is the matter of 149 of the passengers having signed releases and cashed in the settlement cheques sent to them. What would be required is the individual circumstances of each passenger being analyzed, precluding there being true identifiable class. (3) Section 6(c) common issues [69] For all the reasons that it would be impossible to identify an identifiable class, it would be unrealistic and almost impossible to find that there were common issues as between all of the passengers and all of the defendants. There are numerous scenarios that would arise depending upon the unique and specific circumstances of each passenger. [70] It is impossible at this stage to state with any certainty the different situations of the passengers other than to say that there are many different situations and thus there is less likelihood that there are any common issues that can be applied straight across the board. (4) Section 6(d) Preferability [71] The preferability analysis is based on and guided by the three principal advantages of class actions identified by the Supreme Court of Canada in the trilogy: judicial economy, access to justice and behaviour modification. [72] The number, complexity and significance of the individual issues and common issues are each key components in determining whether class proceeding is preferable. [73] While the five factors as outlined in s. of the Act individually are not basis to refuse certification, it is also quite clear that their presence can be looked at in examining the preferability of class proceeding. [74] It is extremely clear that court is not to simply assume that class action is preferable procedure because of its theoretical advantages. There are several U.S. decisions that have denied certification in aircraft accident cases, including Marchesi v. Eastern Airlines, 68 F.R.D. 500 (E. N.Y. 1975), and Sioux City v. United Airlines, Inc., 1990 U.S. Dist. LEXIS 181 (N.D. (E. Div.) Ill. 1990). [75] As stated in numerous cases, such as the case here, class action is not preferable procedure where the causes of action, the damages alleged and the issues proposed by the plaintiff as being common were dependent upon the class members individually establishing their claims against the defendant. [76] Considering the facts of this case, as whole, class action would be completely unmanageable, and certification would result in multitude of individual trials which would completely override any advantage that might be derived from trial of few potential common issues. [77] The prospect would be large in this case for third party claims in the breach of contract cause of action as against numerous travel agencies. That alone would be reason enough to render class proceedings unduly complicated and unmanageable as was found in Sutherland v. Canadian Red Cross (1994), 1994 CanLII 7243 (ON SC), 17 O.R. (3d) 645 (Ont. Ct. Gen. Div.). [78] In addition, the issue of the releases signed by some of the passengers also is of great concern to the Court and would be large factor in not proceeding by way of class action. [79] Although, as it turns out, not of great importance considering the decision of the Court in this certification application, the Court has grave concerns as to the deficiency of the proposed litigation plan. There is absolutely no detail in the applicant’s plan to allow the Court to assess the ability of the action to proceed in class context if it had decided otherwise and would have required substantial amendments. [80] Lastly, if any of the passengers were to pursue claim against the defendants, the individual claim would be straightforward pursuant to the provisions of the Montreal Convention of 1999. The Convention assumes strict liability against all of the defendants in this case. The only issue to be determined would be if the individual passenger sustained “bodily injury” and, if so, what the appropriate damage would be. There would be no need for complicated scientific expert evidence; simple calculation of damages. (5) Section 6(e) the representative plaintiff [81] In the event the Court had determined that there was an identifiable class, Thomas Walton would not have been the appropriate person to fairly and adequately represent the interests of the class for numerous reasons, including the fact he had booked his vacation through Signature as opposed to other passengers booking through MyTravel. He could not fairly and accurately represent those persons who booked their vacation through MyTravel or by themselves through the internet or other means. [82] As well, he was not one of the 149 persons who cashed in the settlement cheques and thus could not fairly or adequately represent those passengers who did. Again, there are just too many variables for any one passenger to fairly and adequately represent all of the interests of all of the passengers. That is not to say that his intentions were not sincere they were but impossible to accomplish in the circumstances of this case. [83] As stated before, his plan for the class action certainly lacked detail, and the Court, if it had granted the certification application, would have required much more detailed plan be put forward with regard to advancing the class action. [84] For all the reasons as outlined in this judgment, the certification application is dismissed. Most importantly, the pleadings do not disclose cause of action. The negligence, unlawful confinement and breach of contract claims cannot be made outside the provisions of the Montreal Convention of 1999 as the claims being made were by passengers on an international flight. The Montreal Convention of 1999 clearly applies to any claim being pursued by any of the passengers against the defendants in this case. [85] Nor is there any cause of action as against any of the defendants within the ambit of the Montreal Convention of 1999 on the evidence presently before the Court as there is no evidence that any of the passengers in Flight 361 suffered from anything other than mental distress or anxiety. It is necessary to establish that the passenger sustained bodily injury. That is fatal to any claim they may have had against any of the defendants pursuant to the Montreal Convention of 1999, resulting in no cause of action. [86] As well, none of the other criteria as outlined in s. of the Act have been met by the applicants. There is need for any potential claims of the passengers in Flight 361 to be individually assessed both as to liability and damages. Thus, the application for certification is denied. J. M.L. Dovell QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2006 SKQB 231 Date: 2006 05 16 Docket: Q.B.G. No. 1055/2004 Judicial Centre: Saskatoon BETWEEN: THOMAS WALTON, DR. VANCE CHOW and MEGAN ENGEDAHL, suing by her litigation guardian, WENDY ENGEDAHL, and MYTRAVEL CANADA HOLDINGS INC., SKYSERVICE AIRLINES INC., SIGNATURE VACATIONS LTD., IAN RAMPERSAUD and MARIA SOUSA, Counsel: Ronald P. Piché for the plaintiffs Bruce W. Wirth for the defendants CORRIGENDUM July 20, 2006 DOVELL J. to Judgment of May 16, 2006 (2006 SKQB 231) [87] On page 3, para. [7], line 5, “Holidays” should read “Holdings”. J. M.L. Dovell

The plaintiff applies for certification pursuant to The Class Actions Act on behalf of himself and the other passengers of an international flight from the Dominican Republic to Regina. The flight was delayed for about 1.5 hours at the Dominican Republic airport as result of several mechanical difficulties. The claim is with respect to alleged negligence, unlawful confinement and breach of contract. HELD: The applicant has failed to establish the first criteria as set out in s. 6(a) of the Act. The application for certification is dismissed on that basis. 1) The court accepts that all of the defendants are governed by the provisions of the Montreal Convention of 1999. The wording of Article 29 of that agreement is clear. Any claims for damages of passenger of an international flight can only be brought within the ambit of the Montreal Convention of 1999. The court reviewed the cases and found that the plaintiff's claims outside the ambit of the Montreal Convention of 1999 in negligence, breach of contract, unlawful confinement and punitive damages do not disclose a cause of action. 2) The sole exclusive remedy available to passengers is set out in Article 17(1) of the Montreal Convention of 1999. strict liability regime has been set up with cap of damages where passenger sustains 'bodily injury' as result of an injury that occurs in the course of embarking or disembarking. It is settled law that for a passenger to have access to Article 17(1), the individual must have suffered a bodily injury as opposed to mere mental anguish. It has not been established that any bodily injury has been sustained by any of the passengers on Flight 361. It is plain and obvious that the claim does not raise a reasonable cause of action. Corrigendum received dated July 20, 2006 and added to fulltext.

e_2006skqb231.txt

nan INFORMATION Y245194 2004 SKPC 82 IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT BETWEEN: HER MAJESTY THE QUEEN H. (A.R.) Inez Cardinal for the Crown Catherine Knox for the Youth September 14, 2004 P. S. KOLENICK PCJ JUDGMENT [1] The accused youth is charged that on April 27, 2002, near Dundurn Saskatchewan, he did operate a motor vehicle while his ability to do so was impaired by alcohol or a drug, contrary to Section 253(a) of the Criminal Code. [2] The issue which arose herein was whether the evidence was sufficient to prove impairment beyond a reasonable doubt. Review of Evidence for the Crown Sgt. Ian Mitchell [3] At about 6:00 p.m., Sgt. Mitchell of the RCMP received dispatch in regard to possible impaired driver. Therefore he patrolled south on Highway 11, hoping to intercept it. At approximately 6:53 p.m., he met vehicle which matched the description in the complaint, being operated by the accused. It appeared to be speeding. Therefore, he crossed the median on the four lane highway, followed behind, and observed. [4] He estimated the speed of the accused vehicle to have been at least 120 kilometres per hour, which was over the speed limit. As well, he noted the accused’s vehicle to make an abrupt lane change twice, without signalling. Further, it was wandering somewhat within the lane, but did not cross into the adjacent one. [5] At 6:55 p.m., after only about two minutes of observation, Sgt. Mitchell engaged the vehicle emergency flashers and shortly thereafter the accused pulled onto the shoulder and stopped. He suggested that there was some brief delay by the accused’s vehicle and that the braking was abrupt. On the evidence, the accused had passed another vehicle just prior to responding to the emergency lights and stopping, which presumably resulted in the lane changes which the officer had noted. [6] When Sgt. Mitchell first spoke to the accused behind the wheel, he was aware of strong smell of beverage alcohol in the vehicle. He asked him on two occasions if there was alcohol in the car, and the accused responded that there was not. However, the officer located part-full bottle of beer behind the front driver’s side seat, which, on the evidence belonged to Ashley Beaton. She was seated in the rear driver’s side seat, and testified for the defence. There were also two other male passengers. [7] Once the accused was out of the vehicle, Sgt. Mitchell was aware of very strong smell of beverage alcohol on his breath. He confirmed from him that he had one bottle of beer with his lunch, at approximately 2:30 p.m. In regard to other signs of impairment, he noted flushed face, eyes which were glazed and bloodshot and movements which were slow and deliberate, but no problems with balance. He described him as being “cocky” but cooperative. [8] At the scene, he also conducted field sobriety test known as the horizontal gaze nystagmus, which purports to note the degree of involuntary jerking of the eyes as they follow beam of light. According to the officer, he failed six out of six of the clues. Failing four of six indicates seventy-seven percent possibility of the presence of blood alcohol concentration of one hundred milligrams percent or more. The officer had learned this procedure at training course which he had attended in February 2002, and has only used it three times since then. He also administered heel and toe test to determine balance. The parameters of it require the presence of at least two out of eight of the indicators in order to fail. However, the accused had displayed only one, so it was regarded as inconclusive. At the detachment, Sgt. Mitchell also conducted Romberg test, in which the accused is required to tip his head back, while the officer observes for eyelid flutter. Again, the accused allegedly failed, which would indicate recent use of marijuana. [9] Sgt. Mitchell was not qualified as an expert in respect to the prior-mentioned field sobriety tests, nor was there any other expert testimony on the issues of the proper method, interpretation, and their relative reliability. [10] In any event, at the scene, at 7:00 p.m., he read the accused breath demand and rights to counsel, both of which he understood. They arrived at the Saskatoon detachment at approximately 7:45 p.m., after which the accused spoke to legal aid duty counsel for approximately ten minutes. Once that was concluded, he provided two breath samples of eighty milligrams percent each, at 7:54 p.m., and 8:15 p.m., respectively. [11] In cross-examination Sgt. Mitchell confirmed that there was no smell of marijuana use in the motor vehicle, nor were drugs located, despite his claim that the accused having failed the Romberg test was reliable indicator of marijuana consumption. [12] He indicated further that the policy of the RCMP in Saskatchewan is to charge “over .08" only when subject blows one hundred milligrams percent or higher, unless there is an injury in motor vehicle accident. However, it is discretionary matter, and in the past he has charged impaired driving with blood alcohol concentration as low as fifty milligrams percent. Evidence for the Defence The Accused [13] The accused is now twenty years old, and resides in Regina. He testified that the only alcohol which he had consumed on the day of the alleged offence was one bottle of beer, with his lunch, at approximately 2:30 p.m. The day before however, he had been partying with friends, and did not arrive home until 2:00 or 3:00 a.m. He was unsure how much he had consumed, but estimated that it was probably more than twenty bottles of beer, as well as having shared marijuana joint with four friends. [14] The next morning he awoke at roughly 11:00 a.m. or noon. As he was feeling somewhat hung over, he had one beer only, and no drugs. He decided with his friends that they would go to Saskatoon to skate, and they headed out for that purpose at 3:30 or 4:00 p.m. [15] He confirmed also that Ashley Beaton had brought 1.1 litre of Colt 45 beer. He had told her not to bring alcohol in the car, but she had insisted, so he relented. On route, the other three drank the beer with some small glasses, but the accused did not consume any of it. As well, the others had raised their glasses in toast to some of the other vehicles which they encountered on the trip. [16] The accused indicated that he was not feeling the effects of his prior consumption, and did not believe that his ability to operate motor vehicle was impaired by alcohol or drug. Further, there was nothing unusual in his manner of driving and the trip was in all respects normal, during which he was listening to music and talking with his friends. [17] He agreed that he may have been speeding, as observed by the officer, but that he was also in the process of passing another vehicle, and normally travels at approximately ten kilometres per hour over the speed limit on the highway. As well, he was unsure if he had signalled the lane changes, and may not have done so, because traffic was light, and he might not normally signal to pass the other vehicle on the divided highway with no other traffic being affected by the lane change. [18] He testified further that it was windy at the time, which may have caused him to weave somewhat in his lane, but on the evidence his vehicle did not cross into the other lane. Also, he pulled over as soon as he was aware of the police emergency lights, which he may not have immediately noticed because he was talking with his friends. As well, he did not feel that there was anything unusual in the manner in which he braked, and the process of stopping had to be delayed about thirty seconds for safety, because of the presence of the other vehicle which he had just passed. [19] He disputed that at the time he was displaying any worthwhile signs of impairment. In regard to the smell of alcohol on his breath, he suggested that perhaps it was from his substantial consumption of alcohol the day before, but he had only one beer that date, before they headed for Saskatoon. Specifically, he denied drinking any of Ashley Beaton’s beer in the car, although he allowed the others to do so. [20] He explained further that his bloodshot eyes may have been from his consumption the night before. As well, he is chain smoker and some were smoking in the vehicle, which could have caused the redness. Further, he suggested that his flushed face was perhaps the result of nervousness from his encounter with the police. Ashley Beaton [21] Ashley Beaton, age twenty, has been friend of the accused since they were children. She indicated that she in unable to recall all of the details of the event, presumably because of the passage of over two years from the date of the alleged occurrence. [22] However, she confirmed that she had brought the beer in the car, but that the accused did not drink from it, because he was driving. As well, she believed that he only had one beer at home that day before they departed. Further, during the trip, she was not aware of any nature of erratic driving by the accused which caused her any concern for her personal safety. [23] In cross-examination she indicated that she could not recall when she had first seen the accused that date, but believed it had been in the early afternoon. Apparently therefore she was not with him for the whole day. As well, she did not remember seeing him the previous day during the party, nor did she notice the smell of alcohol on the day of the alleged offence. Analysis Is the evidence sufficiently credible to prove beyond reasonable doubt the offence of impaired operation of motor vehicle, contrary to s. 253(a) of the Criminal Code? [24] In general, the burden is on the Crown to prove the constituent elements of the offence beyond reasonable doubt with credible evidence, and the accused is presumed to be innocent until proven guilty. In assessing credibility, am guided by the principles restated in R. v. McKenzie (P.N.) (1996) 1996 CanLII 4976 (SK CA), 141 Sask. R. 221 (Sask. C.A.) (from R. v. Rose (A.) (1992) 1992 CanLII 987 (BC CA), 20 B.C.A.C. (B.C.C.A.)), at paragraph 4: “First, if you believe the accused, obviously you must acquit; Secondly, if after careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit; Thirdly, if you do not believe the evidence of the accused but you are left in reasonable doubt by it, you must acquit; Fourthly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond reasonable doubt by that evidence of the guilt of the accused.” [25] The determination of credibility does not involve the court opting for one version of events or the other. Rather, the Crown must prove that its evidence is credible, and there is no onus on the accused whatsoever in that respect. Even if the court prefers the evidence of the Crown, it must still consider whether the evidence of the accused raises reasonable doubt. [26] In R. v. Huot (M.) (No. 3) (2001) 2001 CanLII 368 (SK PC), 209 Sask. R. 171, referred to the appropriate legal principles to be applied by the court in the assessment of evidence of alleged impairment, commencing at paragraph 26: “[26] In respect to this issue, in R. v. Arevalo (B.), [2001] S.J. No. 218; 2001 CanLII 394 (SK PC), 205 Sask. R. 315 (Prov. Ct.), noted the following commencing at paragraph 8: ‘[8] Therefore, the evidence of impairment which is alleged by the Crown must be considered in the context of the principles contained in R. v. Stellato (1994), 1994 CanLII 94 (SCC), 31 C.R. (4th) 60, in which the Supreme Court of Canada approved the following, from the Ontario Court of Appeal reasons, 18 C.R. (4th) 127, at paragraph 14: ‘In all criminal cases the trial judge must be satisfied as to the accused’s guilt beyond reasonable doubt before conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused’s ability to operate motor vehicle was impaired by alcohol or drug. If the evidence of impairment is so frail as to leave the trial judge with reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.’ [9] In the process of making this analysis, the Ontario Court of Appeal judgment made reference to the so-called “classic” signs of impairment, namely: erratic driving, strong odour of alcoholic beverage, glassy and bloodshot eyes, slurred speech and unsteadiness of one’s feet. Obviously this was not intended to be an all-encompassing list, and also, its application will very much depend on the circumstances in the case.” [27] Further, in R. v. Landes (T.) (1997), 1997 CanLII 11314 (SK QB), 161 Sask. R. 305 (Q.B., Klebuc, J.), the court referred to Stellato, supra, and made the following observations, commencing at paragraph 16: ‘[16] An opinion as to impairment, be it by the trial judge or nonexpert, must meet an objective standard of “an ordinary citizen” or “reasonable person” in order to avoid the uncertainties associated with subjective standards, particularly when based on inferences. To that end list of tests and observations has been developed for use by peace officers and courts in determining whether an accused’s mental faculties and physical motor skills were impaired by alcohol to the degree of impairing the accused’s ability to drive motor vehicle. Those observations and tests include: (1) evidence of improper or abnormal driving by the accused; (2) presence of bloodshot or watery eyes; (3) presence of flushed face; (4) odour of an alcohol beverage; (5) slurred speech; (6) lack of coordination and inability to perform physical tests; (7) lack of comprehension; and (8) inappropriate behaviour. [17] In my view, trial judge must carefully review all of the reported tests and observations which inferentially support or negate any impairment of the accused’s mental and physical capabilities, and then be satisfied beyond reasonable doubt that the reasonable inferences to be drawn therefrom establish that the accused’s ability was impaired to the degree prescribed by ss. 253 and 255 of the Criminal Code. piecemeal approach supporting or negating impairment is not permissible. See R. v. Hall, at p. 66 (R. v. Hall (S.J.) (1994), 1994 CanLII 4630 (SK CA), 125 Sask. R. 62).’” [27] Therefore, these principles must be considered on the basis of the evidence. Evidence of Improper Driving [28] In Landes, supra, the court made the following observations, in the context of the evidence therein, at paragraph 19: “[19] Manner of Driving It is well-established that erratic driving may evidence impairment of the driver’s mental faculties or physical capability, or both, to drive motor vehicle due to the effects of alcohol. However, before any driving may be classified as “erratic”, it must be referable, in the context of all of the evidence, to the impairment of the driver’s skills by alcohol and not to another cause, e.g., mere negligence. Cst. Briant testified people run stop signs when they are sober and when they do, accidents often occur. similar observation may be concerning the quick turn and loss of control. The reference to speed of at least 60 kilometres per hour has little probative value in the absence of evidence as to the posted speed limit for the thoroughfares in question.” [29] On the Crown evidence herein, the accused was operating his vehicle on divided highway, in light traffic. He was exceeding the speed limit and had failed to signal lane changes, which he made in an abrupt manner as he passed the only other vehicle in the immediate vicinity. As well, although the vehicle wandered somewhat within its lane, it did not stray into the other lane of traffic. The officer noted also that the accused’s response in stopping was somewhat delayed, and that when he did stop, he braked abruptly. The opportunity to make the observations was only during roughly two minutes. [30] However, the accused took issue with the suggestion that there had been anything of note either in the timing of the stop, or the manner of braking. At that time, he was visiting with his companions, and as soon as he was aware of the emergency lights, he began to slow and pull over to the shoulder, being required to do so safely because he had just previously passed the other vehicle in the immediate vicinity. He indicated also that it was not unusual for him to speed to some extent on the highway, which may have been more on this occasion, as he passed the said vehicle. He did not dispute that he may have not bothered to signal, because the traffic was light and he was on highway. He agreed as well that the weaving within the lane may have occurred, but that there was some wind, and on the evidence the vehicle had not entered into the other lane to any extent. [31] Having given careful consideration to the evidence of the alleged erratic driving, and the accused’s explanation for it, in my view, the aspects which were observed may well have been the result of driver inattention which could have occurred whether or not his ability to operate motor vehicle was impaired by alcohol or drug. Therefore, that evidence will not be given any weight herein. Evidence of bloodshot or watery eyes [32] The accused suggested that his bloodshot eyes may have been the result of his chain smoking, and that his companions and himself had been doing some smoking on route before they were stopped by Sgt. Mitchell. That description of possible cause has an air of reality to it. As such, the bloodshot eyes will not be considered as reliable indicator herein. Further, the evidence of glazed eyes is inconclusive, in the absence of reliable evidence of bloodshot eyes. As well, the officer did not observe at all watery eyes in the accused as an indicator of impairment. Evidence of flushed face [33] The accused suggested that he may have been blushing at the time from nervousness in his encounter with the police. However, he did not indicate that he tends to get flushed face when he is under stress, and it was not particularly evident when he testified herein that the stress of the trial was causing him to blush. Therefore, the flushed face will be considered as reliable sign of impairment. Odour of alcohol [34] There is no expert evidence in these proceedings as to the rates of absorption and elimination of alcohol, and in any event, the accused was uncertain as to his precise consumption the previous day except that it was probably in excess of twenty bottles of beer, as well as single bottle of beer he had during the day. In any event, the evidence of very strong odour of beverage alcohol is reliable indicium of impairment, due to the consumption of alcohol by the accused, and it will be considered herein. Lack of coordination or inability to perform physical tests [35] On the evidence, the accused did not have any problems with balance, but rather he was moving in slow and deliberate manner. In my view, if the accused was not displaying difficulty with balance and coordination, the suggestion that he was moving slowly is not a credible indicator of impairment and will not be given undue weight for that purpose. [36] In regard to the matter of physical tests, as noted previously, the Crown purported to rely on the results of standardized field sobriety tests, including horizontal gaze nystagmus, heel and toe, and the Romberg. Sgt. Mitchell had learned at least some of the methods at training course in February 2002. Although he had used them since, it was only on few occasions, and he did not suggest that he was an expert. He claimed that the accused had failed the nystagmus because he had failed six out of six indicia, and when there are at least four out of six, it indicates seventy-seven percent chance of blood alcohol concentration of one hundred milligrams percent or more. As well, the heel and toe test was regarded as inconclusive because the accused displayed only one of eight indicators and at least two of eight are required to indicate impairment. He also failed the Romberg test, which involved the officer observing the accused’s eyelids fluttering while tipping his head back, and failure indicated recent marijuana use. In any event, I have concluded that in the absence of expert evidence to explain the scientific basis for these tests, the proper method of application, and to comment on their relative reliability, it is not appropriate for the court to rely upon them on the issue of guilt or innocence, to the prejudice of the accused. [37] In regard to the other potential indicators of impairment, as per Stellato, supra, and Landes, supra, the accused did not display slurred speech. As well, he appeared to fully comprehend his legal rights and obligations in his communications with the peace officer, and legal aid duty counsel. He did not display any mental confusion, or noteworthy inappropriate behaviour. He was described as being “cocky” but cooperative. In general, he conducted himself in rational and reasonable manner. The effect of the Intoxilyzer readings [38] As noted, the accused blew eighty milligrams percent on two occasions. Of course, he was not charged with an offence of being over .08, contrary to s. 253(b) of the Criminal Code, and indeed the policy of the RCMP is to charge only on results of one hundred milligrams percent or higher, unless there is motor vehicle accident in which an injury occurs. Further, Sgt. Mitchell indicated that in the past he had charged an accused with impaired operation, contrary to s. 253(a) of the Criminal Code, with blood alcohol concentration as low as fifty milligrams percent. Every situation in that respect will depend on its own circumstances, and obviously the particular tolerance to the same amount of alcohol consumption will vary from one individual to the next. Further, the accused did not dispute the accuracy of the Intoxilyzer results, and as such, he must be presumed to have consumed sufficient alcohol at some point to have achieved same. [39] However, regardless of that alcohol consumption, and the accused’s blood alcohol concentration, the only reliable indicia of impairment were a very strong odour of alcohol and a flushed face. Beyond that, the indicators are either inconclusive, non-existent or the accused has offered a reasonable explanation for them. As a result, the evidence is so frail as to leave a reasonable doubt as to impairment, and the accused must be acquitted. Therefore, he is not guilty of impaired operation, contrary to s. 253(a) of the Criminal Code.

The accused youth is charged with driving a motor vehicle while his ability to do so was impaired by alcohol or drug contrary to s. 253(a) of the Criminal Code. The issue was whether the evidence was sufficient to prove impairment beyond a reasonable doubt. HELD: The only reliable indicia of impairment were a very strong odour of alcohol and a flushed face. Beyond that, the indicators are either inconclusive, non-existent or the accused offered a reasonable explanation for them. The evidence is so frail as to leave a reasonable doubt as to impairment and the accused was acquitted. 1) The accused was exceeding the speed limit and failed to signal lane changes. His vehicle wandered somewhat in the lane, but did not stray into the other lane. The observations of his driving were made over 2-minute period. The aspects of the driving that were observed may have been the result of driver inattention. 2) The bloodshot eyes may have been the result of chain smoking. Further, the evidence of glazed eyes is inconclusive in the absence of reliable evidence of bloodshot eyes. 3) The evidence of flushed face was reliable evidence of impairment. 4) The evidence of strong odour of alcohol is reliable indicia of impairment, due to the consumption of alcohol by the accused. 5) The accused did not have any problem with balance, but was moving in slow and deliberate manner. If the accused was not displaying difficulty with balance and coordination, then the suggestion that he was moving slowly is not a credible indicator of impairment. The accused did not display slurred speech and appeared to comprehend his legal rights and obligations. He did not display any mental confusion or inappropriate behaviour. In the absence of expert evidence to explain the scientific basis for the physical tests administered, the proper method of application and their reliability the Court could not rely on them. 6) The accused blew 80 milligrams on two occasions. However, regardless of the alcohol consumption and the accused blood alcohol concentration, the only reliable indicia of impairment were a strong odour of alcohol and a flushed face.

e_2004skpc82.txt

J. IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: v. Murphy, 2004 NSPC 30 Date: 2004-05-12 Docket: 1347575 Registry: Bridgewater v. Ausman William Murphy Defendant Judge: The Honourable Judge Crawford Heard: March 29, 2004, in Lunenburg, Nova Scotia Written Decision: May 12, 2004, in Bridgewater, Nova Scotia Counsel: Lloyd Tancock, for the Crown Joel Pink, Q.C., for the Defence By the Court: [1] Ausman William Murphy faces a charge under s. 13(1)(a) of the Nova Scotia Occupational Health and Safety Act that, as an employer, he failed to take reasonable precautions to ensure the health and safety of persons at a workplace. [2] The charge arises out of tragic incident aboard the fishing vessel “Big Guy M.S.K.K.F.” on August 19, 2003, in which fisher, Chadwick Zinck, lost his life. [3] The parties submitted joint statement of facts as follows: On Tuesday, August 19, 2003 Ausman Murphy along with Chadwick Zinck, Richard Heisler and Barry Cook set out to check tuna pen in the waters of the Atlantic Ocean off Horse Island near Northwest Cove, Lunenburg County, Nova Scotia. The defendant Murphy was operating the Motor Vessel “Big Guy MSKKF” which was owned by and registered to Larry Harnish. Zinck and Heisler were crew members for this trip and Cook was an invited guest. [N.B.: Richard Heisler testified in contradiction to this that it was he who operated the vessel that day, not the defendant.] In the belief that there were dead tuna fish in the tuna pen it was decided that somebody should go into the tuna pen to conduct search. Chadwick Zinck, despite having never done so before and having no experience diving with scuba diving equipment, was anxious to perform this task. He did so using diving equipment borrowed from Cook and another individual who was not present. Zinck ultimately did not return to the surface and was subsequently located near the bottom of the tuna pen by diver who was summonsed for that purpose. It was determined by medical autopsy that Zinck died of “drowning (salt water) due to inexperienced scuba diving.” [4] In addition, based on the evidence before me, make the following findings of fact: Zinck and Heisler had been recruited by Harnish to fish with him and the defendant in the 2003 tuna fishery. · All four thought of themselves as self-employed fishermen. Harnish owned the boat and one tuna pen. The defendant owned another tuna pen. Tuna could only be killed when Brian Coolen was aboard, as he owned the tuna licence under which all four were fishing. · Harnish, Murphy, Heisler and Zinck had a profit-sharing agreement, pursuant to which 10% of the gross was paid to Brian Coolen for the use of his tuna licence, 10% to Larry Harnish as boat share, 26% to Murphy or Harnish, depending on whose nets the fish in question came from, and after expenses were deducted, the net profits would be divided equally among the four. Larry Harnish, the owner of the boat, gave the orders when he was aboard; when he was not, no orders were given, as each of the three knew his duties and was able to work without direction. Zinck was dependent, in varying degrees, on Harnish, Murphy and Coolen, as he had no gear, boat or licence of his own; in particular, Harnish, as owner of the boat, could deny any of the other three the right to use his boat. All four were paid directly by the fish buyer, L.R. McCrae Fisheries Ltd., which did the accounting in accordance with their profit-sharing agreement and issued cheques and T4F certificates for each fisherman accordingly. Zinck was insistent on making the dive; he “tortured” Barry Cook and would not take no for an answer until Cook reluctantly lent him his equipment. Cook, licenced diver, was on board, advised Zinck in the use of the equipment and told him to stay within 10 to 12 feet below the surface. [5] The defendant conceded at the outset of the trial that the issue to be determined was whether or not he was an “employer” within the meaning of the Occupational Health and Safety Act. And the Crown agreed that it was the Crown’s burden to establish this beyond reasonable doubt. In other words, if find that the defendant was an employer, there is no doubt that, as such, he failed to take reasonable precautions for Mr. Zinck’s safety. Legislation [6] The relevant portions of the Occupational Health and Safety Act include the following: In this Act, (j) "dependent contractor" means person, whether or not employed under contract of employment and whether or not furnishing the person's own tools, vehicles, equipment, machinery, material or any other thing, who performs work or services for another on such terms and conditions that the person is (i) in position of economic dependence upon the other, (ii) under an obligation to perform duties mainly for the other, and (iii) in relationship with the other more closely resembling that of an employee than an independent contractor; (o) "employee" means person who is employed to do work and includes dependent contractor; (p) "employer" means person who employs one or more employees or contracts for the services of one or more employees, and includes constructor, contractor or subcontractor; (ae) "self‑employed person" means person who is engaged in an occupation on that person's own behalf but does not include dependent contractor; 13 (1) Every employer shall take every precaution that is reasonable in the circumstances to (a) ensure the health and safety of persons at or near the workplace; Was the defendant Chad Zinck’s “employer” for the purposes of the Occupational Health and Safety Act? [7] In order to decide this question, it will be necessary to look at the obverse question: was Chad Zinck an employee of the defendant? If so, it follows that the defendant was his employer and, as such, owed him the duty set out in s. 13(1)(a) above. [8] The fact that fishermen have traditionally seen themselves as being self-employed is an important factor in deciding this issue, but is not, in and of itself, conclusive. However, it does make it clear that fishers are not simply “employees” in the normal use of that term. [9] The argument of the Crown is that fishers should be classified for the purposes of this Act as “dependent contractors” under s. 3(j) above. [10] The Crown took the position that both the defendant and Larry Harnish were employers for the purposes of the Act, but as Harnish was not present on the day of the accident, only the defendant was charged. [11] This might have been an easier argument for the Crown to make if it was apparent that the defendant was acting as skipper or captain in Harnish’s absence. But the evidence simply did not establish that the defendant was in any sense acting as Mr. Harnish’s lieutenant or second in command. It was Richard Heisler who was operating the vessel, not the defendant; and neither Heisler nor Harnish testified that the defendant had any kind of authority over the other fishers. [12] If the Crown is to make its case under s. 3(j) it will have to establish beyond reasonable doubt that Chad Zinck was economically dependent on the defendant, was required to perform duties mainly for him and was in relationship with him that more closely resembled an employee relationship than that of independent contractor. [13] As fisherman without boat, gear or licence, Chad Zinck would obviously be economically dependent on someone else for his livelihood. In this case, he was dependent on Harnish for the boat and part of the gear, on Coolen for the licence and on the defendant for the balance of the gear. The Crown’s argument that he was dependent on Harnish and Murphy jointly does not accord with the profit-sharing agreement. Apart from the differing percentages allotted to Harnish and Murphy for the boat and gear (out of which they had to pay expenses for what they owned), they were entitled only to an equal share with Zinck and Heisler. It is noteworthy that there was no differential due them as captain or mate. Nor does the Crown argue that Coolen should be considered an employer although all four fishers were dependent on him for the licence. [14] Although Chad Zinck was required to work “mainly for” Harnish and the defendant in the sense that this was full-time or nearly full-time work during the season and that if he did not show up or provide replacement he would not share in the profit, this cannot be determinative; the same would be the case whether he was “dependent” or “independent” contractor. [15] In analyzing this relationship it appears to me to be closer to that of independent contractor than that of employer-employee. [16] To sum up, do not believe that the Crown has established on the facts of this case that Chad Zinck was “dependent contractor” within s. 3(j). [17] am fortified in this conclusion by comparison to the definition of “dependent contractor” in the Canada Labour Code, R.S.C. 1985, c. L-2 which found it necessary to provide specific reference to fishers to bring them within the definition, as well as by the Trade Union Act, R.S.N.S. 1989, c. 475, s. 2(1)(k), which also specifically refers to fishers in order to bring them within the definition of “employee”. [18] also note that relevant case law has concluded as Laskin, C.J.C. stated in B.C. Packers v. Canada (Labour Relations Board) 1977 CanLII 205 (SCC), [1978] S.C.R. 97 at para 13, in regard to the decision in Re Lunenburg Sea Products Ltd.; Re Zwicker, 1947 CanLII 319 (NS CA), [1947] D.L.R. 195: The court then concluded that in the absence of particular definition of “employee” and “employer,” the “general law” applied, and under that law it must be held that the fishermen were engaged in joint venture with the owners of the vessels, species of partnership, and that there was no employer-employee relationship. [19] By contrast, the cases to which the Crown referred me by way of analogy were all decided in the context of labour relations, not worker health and safety, and none of them involved fishers. do not find them persuasive. [20] As anyone who has lived in Nova Scotia for any period of time is aware, fishers are unique type of worker. Traditionally they have been fiercely independent, jealously guarding their freedom from government interference in their workplace. They have their own code of conduct and regard themselves as the best and final guarantors of their own safety. [21] Chad Zinck was obviously an example of that type of rugged individualism. No one ordered him to make that dive; he wanted to do it; and he insisted on doing it against the advice of others more knowledgeable and experienced. [22] This was classic case of someone being the author of his own misfortune, and to hold the defendant or any other of his co-fishers responsible for his health and safety would be to arrogate to them degree of control they simply did not possess. [23] If the legislature means to include fishers as employers or employees under this Act, it should do so specifically and inform the industry in advance of that change in policy. Conclusion [24] I find the defendant not guilty of the offence charged.

The defendant was charged, as an employer, with failing to take reasonable precautions to ensure the health and safety of persons at a workplace. The defendant and three others had set out to check a tuna pen. The boat was owned by a fourth individual, who was not present at the time. One of the men, despite having no experience diving with scuba equipment and being advised against it by the others, insisted on diving to check the pen. He died of drowning due to inexperienced scuba diving. Defendant not guilty of the offence charged; the defendant was not the deceased's employer. All four individuals thought of themselves as self-employed fishermen and had a profit-sharing agreement; the evidence did not establish that the defendant was acting as skipper or captain in the owner's absence; the defendant was not operating the vessel and the evidence did not show that the defendant had any kind of authority over the other fishers. The deceased was dependant on the boat's owner for the boat and part of the gear, for another individual for the licence and on the defendant for the balance of the gear; the relationship was closer to that of independent contractor than that of employer-employee.

6_2004nspc30.txt

nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2012 SKQB 399 Date: 2012 09 27 Docket: Q.B.G. No. 1597/2011 Judicial Centre: Saskatoon BETWEEN: BILL LAIDLAW, and MNP LLP (formerly operating as MEYERS NORRIS PENNY CO. CHARTERED ACCOUNTANTS LLP and MEYERS NORRIS PENNY LLP) Counsel: Grant J. Scharfstein, Q.C. for the plaintiff Brian G. Kapusianyk, Q.C. for the defendants FIAT MILLS J. September 27, 2012 [1] The defendant, MNP LLP (“MNP”), seeks a stay of the action pursuant to s. 8 of The Arbitration Act, 1992, S.S. 1992, c. A‑24.1. The plaintiff, Bill Laidlaw, is chartered accountant. By way of merger/purchase agreement dated September 14, 2000, he joined the partnership of MNP and became subject to the partnership agreement dated June 1, 1999. The merger agreement provided the courts of Saskatchewan would have exclusive jurisdiction to determine all disputes and claims arising between the parties. The merger agreement provided in part at clause 2.11 that: This Agreement shall prevail if and whenever there is any conflict or any inconsistency between the provisions of this Agreement and the MNP Partnership Agreement (as may be amended hereafter). [2] Subsequent to signing the merger agreement, new partnership agreement signed by the parties contained the following relevant clauses: 2.01 Effect This Agreement shall be deemed to amend and restate the existing Partnership Agreement and replace all prior Agreements entered into between the Parties hereto. 4.11 Existing Agreements The Partners acknowledge that the Partnership has entered into and is bound by the terms of the agreements which are listed on Appendix D, which is attached to and forms part of this Agreement. Appendix lists number of agreements, including merger agreements, that remain in force but did not include the merger agreement of the plaintiff. 17.01 Arbitration At any time while this Agreement and any of its provisions are in force, should any dispute or question arise between Partner and either another Partner or the Partnership concerning the interpretation of this Agreement or any part thereof which cannot be resolved by agreement among those Parties, then such dispute or question will be submitted to arbitration as herein provided by one Partner giving notice to the other Partner in dispute or if to the Partnership, to the C.E.O. ... [3] MNP gave notice to the plaintiff that his partnership arrangement would be terminated effective September 30, 2009. On May 10, 2011, the plaintiff’s solicitor sent letter to the C.E.O. of MNP, the relevant portions of which read: dispute has arisen between Mr. Laidlaw and Meyers Norris Penny LLP concerning his termination from the partnership and his entitlement to his capital account and buy‑out. Pursuant to Article 17.01 of the November 7, 2000 Partnership Agreement, this letter shall serve as formal notice that Mr. Laidlaw requires his dispute with Meyers Norris Penny LLP to be referred to arbitration. [4] On November 9, 2011, the plaintiff’s solicitor commenced claim against MNP. Relevant portions of the claim are: 6. Effective September 1, 2000, Laidlaw was admitted as principal partner of MNP, subject to the terms and conditions of the MNP Partnership Agreement dated November 7, 2000 (the “Partnership Agreement”). 16. MNP breached the terms and conditions of the Partnership Agreement by: (i) Failing to pay to Laidlaw the income owed to September 30, 2009; (ii) Failing to pay to Laidlaw his capital account; (iii) Failing to pay to Laidlaw the withdrawal proceeds. There is nothing in the claim that alleges the breach of the merger agreement or purports to rely on the merger agreement for the purpose of establishing cause of action. There is no material that discloses what happened to the arbitration request put forward by the plaintiff in May 2011, although, clearly, the commencement of the claim by the plaintiff and his opposition to this application for stay pending arbitration shows he does not wish to proceed with arbitration. On January 19, 2012, the Chief Executive Officer of MNP provided notice to arbitrate pursuant to the partnership agreement to the plaintiff. [5] Relevant sections of The Arbitration Act, 1992, supra, are: 8(1) Subject to subsection (2), if party to an arbitration agreement commences proceeding with respect to matter to be submitted to arbitration under the agreement, the court in which the proceeding is commenced shall, on the motion of another party to the arbitration agreement, stay the proceeding. (2) The court may refuse to stay the proceeding in any of the following cases: (a) party entered into the arbitration agreement while under legal incapacity; (b) the arbitration agreement is invalid; (c) the subject-matter of the dispute is not capable of being the subject of arbitration pursuant to Saskatchewan law; (d) the motion was brought with undue delay; (e) the matter is proper one for default or summary judgment. [6] MNP argues that pursuant to s. 8(1), the Court shall stay the action unless s. 8(2) applies, and it argues that nothing in that section is relevant to the case. [7] The plaintiff argues number of issues. The first relates to whether the arbitration agreement is invalid as it applies to the relationship of the parties. The plaintiff submits that there are two agreements in play the merger agreement and the partnership agreement and that by virtue of clause 2.11 of the merger agreement, that agreement would prevail if there is conflict between the partnership agreement and the merger agreement. The plaintiff points out the conflict exists in clause 1.5 where it gives Saskatchewan and its courts exclusive jurisdiction to determine “all disputes and claims arising between the parties. The plaintiff submits that that clause is in direct conflict with the arbitration clause, which purports to give an arbitrator the authority to resolve disputes and interpret law according to the Province of Alberta. [8] The choice of law and method of resolution contained in the merger agreement relates to that agreement and the rights arising to the parties out of it. The problem with the plaintiff’s argument is that the statement of claim does not rely on the merger agreement other than for the choice of law. The claim is solely based on the new partnership agreement, alleging breach thereof. It seeks damages under the new partnership agreement. No relief is sought under the merger agreement. Yes, there may be potential conflict between the partnership agreement and the merger agreement, but that conflict is of no consequence when no action is being taken and no damages sought under the merger agreement. [9] Secondly, the plaintiff submits that any question of law must be determined by the court and, as here, the determination of the validity of the arbitration agreement requires an interpretation of the agreement. The issue must be decided by the courts, and not the arbitrator. He argued that the interpretation and interrelationship of the two agreements is question of law and must be determined by the Court. simple answer to that argument is that the merger agreement is irrelevant to the purpose of the statement of claim as framed. [10] The defendant also argues that clause 2.01 referred to above replaces all prior agreements that are entered into between the parties, including, of course, the merger agreement. That is possible interpretation, but do not have to deal with the issue given my analysis of the applicability of the merger agreement on the question of relevance. [11] In the case of Barber v. Meyers Norris Penny LLP, 2010 SKQB 175 (CanLII), 357 Sask.R. 77, similar application was made by MNP before Malone J. Ms. Barber, member of the partnership, commenced claim seeking monies pursuant to the provisions of the partnership agreement. Malone J. considered the same arbitration clause. He determined that the onus was on the plaintiff to show why stay should not be granted, relying on Dunwoody Co. v. Thiessen (1988), 1988 CanLII 5026 (SK QB), 70 Sask.R. 189, [1988] S.J. No. 485 (QL). The arguments advanced were not the same as those put forward by the plaintiff in this action. It appears the argument pressed strongly was that the partnership agreement could no longer apply as the plaintiff was no longer member of the partnership. Malone J. dismissed that argument, stating that the claim was based solely on the validity of the partnership agreement. That claim was not reproduced. However, the plaintiff here seems to have based his claim totally on the partnership agreement. There are no other provisions in s. 8(2) that apply to this situation that may result in refusal to stay the proceedings. Therefore, the action is stayed pursuant to s. 8(1) of The Arbitration Act, 1992, supra, with costs to the applicant. The draft order filed by the applicant may issue. “R.C. Mills” J.

The defendant seeks a stay of the action pursuant to s. 8 of The Arbitration Act. The plaintiff is chartered accountant who was partner with the defendant. 2000 merger agreement signed by the plaintiff indicated that the Courts of Saskatchewan would have exclusive jurisdiction to determine all disputes between the parties. After the merger, the plaintiff signed new partnership agreement that said arbitration would apply to any disputes between partner and the partnership. HELD: The action was stayed pending arbitration. The plaintiff's statement of claim does not rely on the 2000 merger agreement, the claim is based solely on the new partnership agreement and alleges breaches of the partnership agreement. The partnership agreement clearly states that disputes are to be resolved through arbitration.

e_2012skqb399.txt

D.I.V. of A.D. 1996 321 J.C. R. IN THE QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF REGINA BETWEEN: DAVID ANTHONY SOUCY and MEENA KUMARI VARMA RESPONDENT D.N. ARMSTRONG for the petitioner R.J.F. LEPAGE for the respondent FIAT MCINTYRE, J. AUGUST 2, 1996 The petitioner seeks interim custody of his sonStefan. The respondent takes the position:1. The petition for divorce is a nullity and Saskatchewan courts donot have jurisdiction to hear and determine the divorceproceedings;2. The court lacks, or ought to decline to exercise jurisdictionunder The Children\'s Law Act, R.S.S. 1990, c.C-8.1; 3. If the court accepts and exercises jurisdiction under The Children's Law Act interim custody should be granted to the respondent. THE DIVORCE ACT The petition was filed May 31, 1996. In it the petitioner said he had only been resident in Saskatchewan since April 30, 1996. Section of the Divorce Act requires either spouse to have been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding. find that the court does not have jurisdiction under the Divorce Act. CHILDREN'S LAW ACT To determine jurisdiction under The Children's Law Act reference is made to sections 15 and 1. For the purpose of section 15(1)(a) one must look to section (2). The petitioner argued that the respondent had consented to or acquiesced in Stefan residing in Saskatchewan with the petitioner. The petitioner moved from Alberta to Saskatchewan in April 1996 bringing Stefan with him. In Re G.E.P., [1965] Ch. 568, [1964] All E.R. 977 (C.A.), Lord Denning said: When father and mother are at variance and living separate and apart and by arrangement the child resides in the house of one of them then that home is his ordinary residence, even though the other parent has access and the child goes to see him from time to time. do not see that child's ordinary residence, so found, can be changed by kidnapping him and taking him from his home, even if one of his parents is the kidnapper. Quite generally, do not think child's ordinary residence can be changed by one parent without the consent of the other. It will not be changed until the parent who is left at home, childless, acquiesces in the change or delays it so long in bringing proceedings that he or she must be taken to acquiesce. Six months' delay would, should have thought, go far to show acquiescence. Even three months might in some circumstances. But not less. (The italics are Maxwell's.) do not wish to be taken as adopting rigid formula so far as how much time must pass before parent may have been said to have acquiesced in child's change of residence. On the affidavit evidence before me it is clear thatby June 1996 the parties were at odds with respect to Stefan\'sresidence and I find that the respondent did not acquiesce toStefan\'s residing in Saskatchewan such that it may be said he washabitually resident in Saskatchewan for the purposes of TheChildren\'s Law Act. It was also argued on the basis of section 15(4) that the court had jurisdiction as result of the respondent's acquiescence. For the reasons stated find the respondent did not acquiesce such as to found jurisdiction. With respect to section 15(1)(b) agree with the respondent that the seven factors listed are conjunctive and the petitioner must satisfy all seven in order for the court to exercise jurisdiction on the basis of this provision. The respondent argues that the factors (iii), (vi) and (vii) have not been satisfied. With respect to (iii) the respondent says there is an application pending in Alberta. Indeed the respondent commenced petition for divorce in Alberta July 17, 1996. For this court to be deprived of jurisdiction on the basis of 15(1)(b)(iii) an application for custody or access in another jurisdiction must have been pending at the time proceedings were commenced in Saskatchewan. Obregon v. Obregon (1984), 39 R.F.L. (2nd) 14 at 170 (Ont. U.F.C.); Gilbert v. Gilbert (1985) 47 R.F.L. (2nd) 199 at 208 (Ont. U.F.C.). With respect to (vi) and (vii) Stefan was born in Kelowna, British Columbia in July 1993 where the parties were residing at the time. He resided there with his parents until the end of April 1995 when they moved to Calgary and put their belongings in storage, coming on to Regina. The only connection with Calgary is that the parties moved there in the fall of 1995. However the respondent was back working in Regina from November 1995 until February 1996 and had Stefan with her. She returned to Calgary with Stefan in February 1996. By February 15 the parties had separated. By April 1996 Stefan was living in Regina with his father. Both sets of grandparents reside in Regina and itappears they will have a role to play in the disposition of theseproceedings. There are also other family members on both sideswho reside in Saskatchewan. The child has no connection ofconsequence to the Province of Alberta. I find that the childhas a real and substantial connection with Saskatchewan and it isappropriate for jurisdiction to be exercised in Saskatchewan. As aresult the court has jurisdiction pursuant to section 15(1)(b). Inthe event the court did not have jurisdiction under 15(1)(b) I wouldfind jurisdiction to exist pursuant to 15(3) as the childclearly has a closer connection to Saskatchewan than to Alberta. INTERIM CUSTODY Having found jurisdiction the issue is interim custody. Both parties make serious allegations against theother. There is substantial conflict in the affidavit evidence. In so far as the affidavit evidence is concerned note that it would appear one of the parties attempted to mislead the court. Both parents claimed that Stefan resided with them after the parties separated in February 1996. have difficulty understanding how one could be mistaken about this fact. prefer not to comment in detail on the affidavit evidence as cannot find, on the basis of the material before me, which parent is better able to meet Stefan's needs in the interim and there will be no interim custody order. However provision does have to be made for Stefan's residence and care on an interim basis. There will be an order that Stefan shallreside with the petitioner on an interim basis and the petitionershall have care and control of Stefan. It is a condition of thisorder that Stefan and the petitioner shall continue to residewith the petitioner\'s parents in the city of Regina. In the event that there is to be any change in the petitioner or Stefan's residence the matter is to be brought back before the court for review. It is a condition of this order that Stefanshall not be removed from the city of Regina without furtherorder of this court. In my view it is necessary that this matter move promptly to pre-trial. The Local Registrar is directed to set an early pre-trial conference date.

FIAT. The petitioner sought interim custody of his son. The respondent contested that the petition for divorce was a nullity and Saskatchewan courts did not have jurisdiction to hear the divorce proceedings and lacked jurisdiction or ought to decline to exercise jurisdiction under the Children's Law Act. Both parties made serious allegations against the other and there was substantial conflict in the affidavit evidence. HELD: An order for interim custody was granted on the condition the petitioner continued to reside with his parents in Regina and that the child not be removed from Regina without further court order. 1)The respondent did not acquiesce to the child's residing in Saskatchewan such that it may be said he was habitually resident here for the purposes of the Children's Law Act. 2)The seven factors listed in s15(1)(b) are conjunctive and the petitioner must satisfy them all. With respect to (iii) a petition for divorce was commenced in July 1996. 3)The child had a real and substantial connection with Saskatchewan and it was appropriate to exercise jurisdiction pursuant to s15(1)(b). Jurisdiction existed pursuant to s15(3) as the child had a closer connection to Saskatchewan then to Alberta. Both sets of grandparents and other family members on both sides reside in Saskatchewan. The child had no connection of consequence to the Province of Alberta.

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THE COURT OF APPEAL FOR SASKATCHEWAN HER MAJESTY THE QUEEN and KEVIN EUGENE McGUIGAN CORAM: The Honourable Chief Justice Bayda The Honourable Mr. Justice Wakeling The Honourable Mr. Justice Sherstobitoff COUNSEL: G. JOSEPHSON for the Appellant C.A. SNELL Q.C., for the Respondent DISPOSITION: Appeal Heard: May 4, 1995 Appeal Allowed: May 10, 1995 On Appeal From: QBCNJ 103/94 J.C. Regina Appeal File: 6597 Reasons by: The Honourable Mr. Justice Wakeling In concurrence: The Honourable Chief Justice Bayda and The Honourable Mr. Justice Sherstobitoff WAKELING J.A. The appellant pleaded guilty to the following charge:That Kevin Eugene McGuigan of Regina between 1 October 1991 and 31 October 1993 at or near Regina did commit numerous assaults on Ashley Bjornson by slapping and striking her with miscellaneous objects, contrary to s. 266 of the Criminal Codeand was sentenced to one year imprisonment and one year's probation. The evidence indicated that the assault consisted of cuffing the eight year stepdaughter rather frequently as a disciplinary measure. There was also an incident where a small paddle was employed and she had been struck with a cookie box. No injury had ever resulted from these assaults. The more grievous conduct was the belittling and sarcastic verbal abuse the appellant directed frequently at the child over her eating habits and consequent weight. At trial, the Crown and defence agreed that it was probably an instance where fine and probation order would create the necessary special deterrence and parental guidance the situation called for. The trial judge was however of the view that the conduct of the accused warranted more severe penalty. We have concluded that the trial judge must have been influenced to substantial degree by the lack of parenting skills displayed by the appellant in the way he mistreated and verbally abused the young girl in manner which was demeaning and destructive of her self image. As offensive as that conduct may be, a lack of parental skill does not constitute a criminal offence and the only thing that the appellant pleaded to was an assault which was not severe and produced no injury. The sentence of one year under these circumstances, even with the record of the appellant, is excessive. In addition, it will no doubt mean the appellant would lose his current employment upon which the family is reliant. We are mindful of the fact the Crown and defence counsel recommended fine and probation, but we must also be aware of the view the trial judge took of the appellant's conduct and accept that some degree of incarceration is appropriate given the position of authority he enjoyed and the existence of his past criminal record even though it does not include similar instances of violence. We therefore conclude the appeal should be allowed and a sentence of 60 days intermittent be substituted for the sentence of one year. The sentence to commence at 5:00 p.m. on Friday May 12th with release each Monday morning after the weekend. The probation order is to remain unchanged except to substitute the word `approved' for `supervised' in the first condition. DATED at the City of Regina, in the Province of Saskatchewan, this 10th day of May, A.D. 1995. WAKELING J.A. concur BAYDA C.J.S. concur SHERSTOBITOFF J.A.

The accused pleaded guilty to a charge of assaulting his 8 year old stepdaughter by slapping her and striking her with a small paddle. The Crown and counsel for the accused agreed that a fine and probation would be appropriate. The trial judge sentenced him to 1 year in prison and 1 year's probation. He appealed his sentence. HELD: Appeal allowed. 1)The force applied was minimal and the child was not injured physically. 2)The sentence imposed would result in the accused losing his employment which would harm his dependents. 3)The Court reduced his sentence to 60 days intermittent.

d_1995canlii3966.txt

IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Nova Scotia (Minister of Community Services) v. B.L.C., 379 Date: 20061215 Docket: SFH CFSA 46794 Registry: Halifax Between: Minister of Community Services Respondent Restriction on publication: Publishers of this case please take note that s. 94(1) of the Children and Family Services Act applies and may require editing of this judgment or its heading before publication. Section 94(1) provides: "No person shall publish or make public information that has the effect of identifying child who is witness at or participant in hearing or the subject of proceeding pursuant to this Act, or parent or guardian, foster parent or relative of the child." Judge: The Honourable Justice Beryl MacDonald Heard: October 25, 2006 and November 22, 2006, in Halifax, Nova Scotia Written Decision: December 15, 2006 Counsel: May Knox, counsel for Minister of Community Services Lola Gilmer, counsel for C. B. L.) By the Court: [1] This is an application by the Minister in protection proceeding pursuant to the Children and Family Services Act S.N.S. 1990, c.5. The Minister is requesting 13 Orders of Production for records prepared by and in the possession of persons and organizations who have provided services to the Respondent. The authority to make this order is found in section 69 of the Civil Procedure Rules: 69.08(5) Where document is in the possession, custody or control of person who is not party, and the production of the document might be compelled at hearing, the Court may, on notice to the parties, make and order.....for the production of true copy that may be used in lieu of the original. 69.09(6) An order for the production of any document for inspection by party or the court shall not be made unless the court is of the opinion that the order is necessary for the disposing fairly of the proceeding or for saving costs and is not injurious to the public interest. [2] The application of this Rule first requires the court to determine whether the document “might be compelled at hearing”. document that is relevant to proceeding and not subject to exclusion is compellable. After determining whether document is relevant the court must determine whether the document is to be excluded, which, in the context of this proceeding requires an examination of the Respondent’s right to claim privilege in respect to the documents requested. Finally, even if document is compellable, the court must determine whether the production of the document is necessary, whether it will save costs, and whether its production will be injurious to the public interest. [3] The Respondent has consented to the grant of Orders of Production for the child’s complete medical records and files in possession of her pediatrician, her family physician, the IWK Health Care Centre, and the Early Intervention Clinic. She has consented to the grant of an Order of Production for the file and records of her treatment with E.F. her former counsellor with Capital Health Addiction Prevention and Treatment Services. She objects to the grant of Orders of Production for the following records: a) The complete record and file of the Capital Health Addiction Prevention Treatment Services; b) The complete medical record, file and chart of the Nova Scotia Hospital, including but not limited to Dr. C’s assessment and psychiatric consult and the Respondent’s subsequent referral to Mental Health Services; c) The complete medical records and files of Dr. and Dr. D, the Respondent’s family physician’s; d) The complete medical record, file and chart of the QEII Health Sciences Centre including but not limited to the complete record, file and chart of the Abbey Lane and Mental Health Clinic; e) The complete record and file of Adsum Centre; [4] The Respondent considers these records irrelevant to these proceedings. For some she claims privilege. She also suggests the records are unnecessary for the fair disposition of these proceedings, that their production will not save costs and will be injurious to the public interest. [5] document to be relevant must contain material that will prove or support fact or proposition put forward by the party seeking the document. This provides the document’s connection to the proceeding. It is not enough to say that document about party exists and therefore it must be provided. The information in the document must relate to fact or proposition at issue. If there is no such relationship, the document is excluded as irrelevant. Facts or propositions that are admitted need no proof rendering any evidence on those issues irrelevant.” The Law of Evidence in Canada, Sopinka, Letterman and Bryant, (Butterworths Canada Ltd. 1992) at pg. 23. [6] It is not always clear whether particular document will indeed prove or support particular fact or proposition. In respect to Civil Procedure Rule 20, (identical to Rule 69, except for the notice provisions) those who have considered this question suggest the rule must be given broad liberal interpretation and it requires only that on the pleadings and the evidence, documents have semblance of relevance”. Eastern Coal v. Cape Breton Dev. (1995),1994 CanLII 4193 (NS SC), 137 N.S.R. (2d) 123 as affirmed in Cdn.Coal v.Cape Breton Dev. (1995), 1995 CanLII 4188 (NS CA), 141 N.S.R. (2d) 180. This is very low threshold. [7] The Respondent argues that this threshold is inappropriate for proceedings commenced pursuant to the Children and Family Services Act. This threshold was established for civil proceedings in which the records sought are often well-defined and generally narrow in scope. The records sought in the cases cited by the Minister pursuant to Rule 20 were documents pertaining to the flooding of mine, list of surgical patients and corporate records relating to staff layoffs. These records are quite dissimilar from those sought by the Minister in this proceeding. In this proceeding the Minister requests access to historic and current files detailing every contact made by the Respondent with her family physicians, and other service providers. Much of the information in these files may have nothing to do with the issues of concern to the Minister, yet the Minister is seeking everything. Its request is not limited to the issues of concern. [8] D.A.Rollie Thompson in his article “Are There Any Rules of Evidence in Family Law?” (2003) 21 C.F.L.Q. 245 suggests child protection proceedings have “unique amalgam of elements criminal, civil, family, administrative. This comment was quoted by Lamer C.J.C. in the Supreme Court of Canada in New Brunswick (Minister of Health& Community Services) b. G.(J.) 1999 CanLII 653 (SCC), 1999 CarswellNB 305 at para 78: There is some debate between the parties as to whether child custody proceedings under the Family Services Act are more properly classified as adversarial or administrative in nature. In my view, formalistic classification of the nature of the proceedings is not helpful in resolving the issue at hand. Child protection proceedings do not admit of easy classification. As Professor Thompson argues, the "unique amalgam of elements criminal, civil, family, administrative makes child protection proceedings so hard to characterize": D. A. Rollie Thompson, "Taking Children and Facts Seriously: Evidence Law in Child Protection Proceedings Part I" (1988), Can. J. Fam. L. 11, at p. 12. [9] While the Supreme Court refused to make characterization, this “unique amalgam” impacts on the question whether there should be different “threshold” when determining relevance in child protection proceeding. Is higher standard needed to appropriately balance the competing interests the Minister’s interest in receiving all information that may determine whether child is in need of protection and what is in child’s best interest and the parent’s interest in retaining some semblance of privacy in his or her life notwithstanding the involvement of the Minister. In G.(J.) Lamer C.J.C. said at para 61: have little doubt that state removal of child from parental custody pursuant to the state's parens patriae jurisdiction constitutes serious interference with the psychological integrity of the parent. The parental interest in raising and caring for child is, as La Forest J. held in B.(R.) supra at para. 83, "an individual interest of fundamental importance in our society". Besides the obvious distress arising from the loss of companionship of the child, direct state interference with the parent-child relationship, through procedure in which the relationship is subject to state inspection and review, is gross intrusion into private and intimate sphere. Further, the parent is often stigmatized as "unfit" when relieved of custody. As an individual's status as parent is often fundamental to personal identity, the stigma and distress resulting from loss of parental status is particularly serious consequence of the state's conduct. [11] and at paragraph 76: The interests at stake in the custody hearing are unquestionably of the highest order. Few state actions can have more profound effect on the lives of both parent and child. Not only is the parent's right to security of the person at stake, the child's is as well. Since the best interests of the child are presumed to lie with the parent, the child's psychological integrity and well-being may be seriously affected by the interference with the parent-child relationship. [12] The Minister has argued against higher threshold citing for support the case of Children’s Aid Society of Algoma v. D.P. and H.L. [2006]O.J. N. 1878 In this case the Children’s Aid Society was seeking records of all police investigations, probation, and correctional services records involving the parents in situation where domestic abuse was an outstanding issue. The Attorney General for Ontario intervened on behalf of itself, the various police services, probation and parole services and correctional services in order to prevent the disclosure of these records to the agency. The parents took no position in respect to the request for those records. This is an important distinction because the court was not asked to balance right claimed by parent but was adjudicating claim put forward by the State. The position of the Attorney General was that it had an obligation, because of the decision in D. P. v. Wagg (2004), 2004 CanLII 39048 (ON CA), 71 O.R. (3d) 229 (Ont.C.A.), to protect the privacy of the witnesses and others whose names appeared in the records sought by the agency. [13] In Children’s Aid Society of Algoma v. D.P. and H.L. Justice Keast at paragraph 22 stated: In any consideration of the application of section 74, there is two test approach. First, the court must determine the issue of relevancy in the context of subsection 74 (3). The court must be satisfied that the record in question contains information that may be relevant. Assuming that this threshold is met, the court then embarks upon weighing process of the public and privacy interests, based on the principles enunciated in D. P. v. Wagg. In the appropriate circumstances, even if record may be relevant, the court can prevent disclosure of that record on grounds of privacy rights. [14] It is important to note that the Ontario legislation in subsection 74(3) specifically provides the threshold for the determination of relevancy. The threshold is that document may be relevant. This is low threshold similar to that applied in Nova Scotia in decisions interpreting Rule 20. Justice Keast makes reference to this low threshold in paragraph 30 of his decision: “...... The legislature deliberately set the threshold low so the widest possible net could be cast to obtain possibly relevant information in the protection of children. Prior to 1984, the threshold was higher, in that actual relevancy had to be demonstrated.” Rule 69, governs proceedings under the Children and Family Services Act. The words used in this rule are quite different from those appearing in section 74(3) of the Ontario legislation. As result Justice Keast’s interpretation of section 74(3) does not assist me in the interpretation of Rule 69. [15] The Respondent argues the higher standard used in criminal proceedings to determine relevancy should apply to child protection proceedings. agree. The nature of these proceedings have very serious consequences for parents and for their children and therefore demand “...a heightened concern for accuracy in fact finding...” (D.A.Rollie Thompson in his article “Are There Any Rules of Evidence in Family Law?” (2003) 21 C.F.L.Q. 245) [16] In R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] S.C.R. 411 at paragraph 22, the Supreme Court required judge to “be satisfied that there is reasonable possibility that the information is logically probative to an issue at trial or the competence of witness to testify.” consider this to be the appropriate standard to use when evaluating the question of relevance in child protection proceeding. [17] accept the proposition put forth in Children’s Aid Society of Algoma v. D.P. and H.L. that there are three purposes for which an agency may seek the production of records: 1. The documents are required as evidence to prove the grounds in the proceeding itself. 2. The documents are required to monitor compliance with existing orders. 3. The documents are required to develop and evaluate the plan of care. Relevance to Prove the Protection Finding [18] Information that merely provides or supports fact or proposition already admitted is not relevant. The Respondent has admitted to the protection finding pursuant to section 22 (2) (k): the child has been abandoned, the childs only parent or guardian has died or is unavailable to exercise custodial rights over the child and has not made adequate provisions for the childs care and custody, or the child is in the care of an agency or another person and the parent or guardian of the child refuses or is unable or unwilling to resume the childs care and custody. [19] The affidavit filed with the Protection Application contained the factual material from which to conclude that the Respondent is unable to resume care and custody of her child because she suffers from alcohol and possibly pharmaceutical or other drug addiction that may be aggravated by depression, post traumatic stress disorder and other conditions of mental illness. Treatment and programs the Respondent has accessed in an attempt to eliminate or control these addictions and regain mental health have, for whatever reason, been unsuccessful. Since this is the information the Respondent had before her when she decided to admit to the protection finding it would appear she agrees with the Minister’s analysis. In addition, section 40 (3) of the Act states: parent or guardian may admit that the child is in need of protective services as alleged by the agency.(my emphasis) [20] The Respondent did not deny the factual information provided in the Minister’s supporting affidavit. If there were factual allegations with which she disagreed, in respect to this protection finding, she should have provided this information at the protection hearing, otherwise she must accept all of the allegations as proof of the protection finding pursuant to section 22(2) (k). This admission renders further proof of the allegations irrelevant. No further evidence to prove the protection finding is required. [21] The Minister has raised the suggestion in its submissions that it requires the information requested to determine whether there are other circumstances in the Respondent’s life that would place the child in need of protection, other than those already disclosed. While the Minister does have duty to “investigate” it must have some basis upon which to request information that may confirm or deny its suspicions. In this case the Minister cannot describe any other fact or condition that places this child at risk other than those to which have already referred. Receiving the Respondent’s “records” for this purpose would amount to fishing expedition. The records are not relevant for this purpose. Relevance to Compliance with Existing Orders [22] The Respondent was required by an Interim Order issued July 31, 2006 and by Protection Order issued August 25, 2006 to comply with the following terms and conditions: 1. She was to be referred to Capital Health Addiction Prevention and Treatment Services for therapy, counseling and treatment. She was to attend as and when directed and was to cooperate and comply with all reasonable requests, inquiries and recommendations of the clinician, or therapist. report with respect to the substance-abuse therapy, counseling and treatment was to be filed by Capital Health Addiction Prevention and Treatment Services with the court. 2. She was to submit to random urine analysis testing in accordance with the collection protocol for forensic urine drug testing and she was to absolutely refrain from the use of non-medically prescribed drugs and from the abuse of alcohol. [23] The Minister has requested the complete record and file of the Capital Health Addiction Prevention and Treatment Services. This file is not relevant for the purpose of monitoring compliance with the Order. This service is already required to prepare report concerning the Respondent that will be filed with this court. It will provide the information requested. [24] The Minister has requested the complete medical record, file and chart of the Nova Scotia Hospital, including but not limited to Dr. C’s assessment and psychiatric consult and the Respondent’s subsequent referral to Mental Health Services. have no information before me to suggest that the Respondent is presently receiving services from any of these sources. As result these records will tell us nothing about her present compliance with the court orders. [25] The Minister has requested the complete medical records and files of Dr. S. and Dr. D., the Respondent’s family physician’s. Dr. S. would have nothing of relevance because he has not been her physician since the commencement of these proceedings. Dr. D., her current physician may have records that have reasonable possibility to confirm or deny the Respondent’s compliance with the court orders. [26] The Minister is seeking the complete medical record, file and chart of the QEII Health Sciences Centre including but not limited to the complete record, file and chart of the Abbey Lane and Mental Health Clinic. understand the QEII Health Sciences Centre is the umbrella organization that includes, among other health services, services for those experiencing mental health illness and these more specialized services are offered through the facilities known as the Abbey Lane and the Mental Health Clinic. Records from the QEII and the other facilities since the commencement date of these proceedings that show the Respondent has been admitted to that facility or attended at the emergency department as result of the abuse of alcohol or drugs or as result of mental illness or disorder would be relevant to the question of compliance. Past records of attendances and treatment for other reasons would not. [27] The Minister is seeking the complete record and file of Adsum Centre. The Respondent has not been involved with the Adsum Centre since the commencement of these proceedings. Their records are of no assistance in respect to the compliance issue. Development of Plan of Care [28] The Minister suggests the information it requests is relevant to the plan of care to be developed for this child and to properly evaluate any plan of care the Respondent may present. The Minister has put forward three propositions in its submissions under this heading. will deal with them in order. 1.. “It is apparent that (the Respondent) is unable to address the child protection concerns. It is questionable which services (the Respondent) has actually participated in and benefitted from and to what degree. The documents sought are relevant to provide information on these questions and are necessary for the fair disposition of the permanent care and custody trial.” [29] The Minister knows the majority if not all of the services the Respondent has accessed. It also knows these have not resolved the problems in her life. This is obvious because the Minister has instituted this proceeding. What the Minister doesn’t know is whether the services accessed by the Respondent failed because she did not regularly attend and/or follow recommendations or for other reasons. This information is relevant to the preparation of plan of care. 2. “They are also relevant because the minister must review its case plan on regular basis. Information from third parties may give the minister an opportunity to reconsider its position and alter its expectations and plan.” [30] consider this to be restatement of the proposition put forth in the first submission. 3. “Even though the parental capacity assessors may have access to some of the information requested by the Minister, the Minister still has an obligation to investigate any and all information regarding child protection concerns. The Minister’s investigation may uncover information that was not parent or on the surface or otherwise in the assessors investigation. Further information relevant to the assessment and may never reach the assessors if (the Respondent) denies or downplays issues or concerns. The assessment will only be as good as the accuracy and the quality of the information upon which it is based. This information will assist in the preparation of the parental capacity assessment.” [31] The assessors in this case will have an abundance of material from which to understand the Respondent’s challenges. The affidavits filed in this proceeding give these details. In addition, all of the affidavit and other information filed in the previous protection proceeding involving this child are, by the Respondent’s consent, part of this proceeding. The assessors will have available to them information from E. F., the Respondent’s former counsellor with Capital Health Addiction Prevention and Treatment Services, they will have the report that Service is required to produce by court order, they will be able to make inquiries, because the Respondent has given her consent, from those presently involved with the Respondent at the Abbey Lane. [32] The assessors are to prepare an independent parental capacity assessment with psychological component. Of what assistance is the provision of previous psychiatric consultations or records of previous treatment and services provided for mental health or addiction related disorders? These may be useful in determining whether past addiction and mental health issues are or are not present in the Respondent’s life. They may provide information identifying what appeared to be barriers to her recovery which may include her failure to comply with recommendations. This information is relevant. The fact that this information may be provided by means other than Orders of Production relates to the question of necessity, not relevance. am satisfied that information about the Respondent’s past treatment and services utilized to address addictions and mental health illness or disorders is relevant both for the work to be accomplished by the assessors and for the development and analysis of plans of care. Exclusion because of Privilege [33] The Respondent has claimed that many of the records sought by the Minister should be excluded because they are confidential. The governing case for the claim of confidentiality in civil cases is A.M. v. Ryan, 1997 CanLII 403 (SCC), [1997] S.C.R. 157 (S.C.C.). In this case the Defendant sought production of the notes and reports of psychiatrist who had treated the Plaintiff. The Supreme Court confirmed that the degree of protection given by this privilege may be absolute or partial, “depending on what is required to strike the proper balance between the interest in protecting the communication from disclosure and the interest in proper disposition of the litigation. Partial privilege may signify that only some of the documents in given class must be produced. Documents should be considered individually or by sub‑groups on "case‑by‑case" basis.” [34] The criteria for the claim of privilege based on confidentiality are those: ......set forth in Wigmore on Evidence, vol. (McNaughton rev. 1961), §2285. First, the communication must originate in confidence. Second, the confidence must be essential to the relationship in which the communication arises. Third, the relationship must be one which should be "sedulously fostered" in the public good. Finally, if all these requirements are met, the court must consider whether the interests served by protecting the communications from disclosure outweigh the interest in getting at the truth and disposing correctly of the litigation. (para.20) [35] Chief Justice McLachlin stated at paragraph 37: Once the first three requirements are met and compelling prima facie case for protection is established, the focus will be on the balancing under the fourth head. document relevant to defence or claim may be required to be disclosed, notwithstanding the high interest of the plaintiff in keeping it confidential. On the other hand, documents of questionable relevance or which contain information available from other sources may be declared privileged. The result depends on the balance of the competing interests of disclosure and privacy in each case. [36] Many of the records sought by the Minister were created as result of the Respondent’s involvement in previous child protection proceeding. When an individual is directed by court or agrees under voluntary arrangement with the Minister to access services, he or she cannot do so with an understanding that communication with those service providers will be confidential. The Court, the Minister, or the agency involved will request reports from those service providers which will be based on communications and records of those communications. These records cannot attract privilege. [37] Records created by individuals and service providers sought out by the Respondent on her own initiative may attract privilege but consider the interest of the Minister to develop and evaluate an appropriate plan of care for this child takes precedence over the interest of the Respondent to keep relevant records, otherwise confidential, out of view. [38] The Minister suggests Orders of Production provide the most effective and cost efficient means by which to obtain the relevant information. The Respondent’s submission is that the requests for Orders of Production in this case would provide documents that would include significant irrelevant information, such as her physician’s treatment for illness and conditions not associated with addictions and mental illness and the admittance and treatment at the QEII for illness and conditions also not associated with addictions and mental illness. Substantial time is required by both the Minister and Respondent’s counsel to review all of this material. The Respondent suggests the Minister can obtain the information it requires by using interrogatories, and by requesting medical reports specific to the identified concerns. The production of everything is not necessary for fair disposition of the proceeding. agree. While it may be easier for the Minister to request everything and short through the material later, this is not efficient for the overall process. Hundreds of pages of information, having no relevance to the issues in proceeding are photocopied, delivered and stored. Many hours must be spent sifting through this information much of which is hard to read and may require experts to understand and interpret. The Minister has other means available to obtain the relevant information. The Minister may seek Orders of Production for records containing information about identified issues. Interrogatories may be used or medical report containing specific relevant information may be requested. Cost Savings [39] For reasons already given, and to follow, am not satisfied that the production of all of the Orders of Production requested will save costs. While this term has not been defined in Rule 69 consider it reference to the parties or to the “process”. The purpose of our Civil Procedure Rules is to “secure the just, speedy and inexpensive determination of every proceeding.” (Rule 1.03) Providing information to the parties and to the court that is not relevant does not achieve this purpose. To achieve this purpose relevant information must be clearly identified by providing the linkage between the information sought and the issues in dispute and it must be collected by selecting means specifically tailored to produce the relevant information. [40] There will be cost to service providers who are asked to produce only relevant records or to prepare report or answer interrogatories. This may place greater cost burden on the service provider than does merely copying all of its files. do not consider this to be the type of cost consideration contemplated by Rule 69 but if it is included consider the imposition of such cost to be required for the “just” determination of these proceedings. Will the Production of the Records be Injurious to the Public Interest [41] Discussions under this topic generally explore the relationship between, in this case Respondent, and the person or institution from which records are requested. There may also be an examination of the content of the information itself but this would likely arise in the context of cases involving national security. In this case the Respondent argues that the public has an interest in ensuring persons such as herself seek out services. If her service providers must disclose their records, she has no privacy and this invasion will undermine therapeutic intervention. This argument is similar to that put forward by the Respondent in respect to her contention that her records were confidential. However, the right of citizens to be protected from invasions of privacy is enshrined in the Canadian Charter of Rights and Freedoms. These privacy interests may require the exclusion of relevant evidence. balance must be achieved between the individual’s right to privacy and societies need to protect children. In this case consider the protection of children to be the predominant value. Nevertheless, the Respondent’s right to privacy may be invaded only for the purpose of providing relevant information to the Minister. Efforts must be made to prevent other information about the Respondent from being caught in the net. [42] Having reviewed the principles to be applied to evaluate the Minister’s request find the following: 1. The complete record and files of the Capital Health Addiction Prevention Treatment Services are relevant to the plan of care and assessment. They are necessary and their production will not be injurious to the public interest. 2.. The complete medical record, file and chart of the Nova Scotia Hospital, including Dr.C’s assessment and psychiatric consult and the Respondent’s referral to Mental Health Services are relevant to the plan of care and assessment. They are necessary and their production will not be injurious to the public interest. 3. The medical records and files of Dr. and Dr. are only relevant in respect to consultations, and treatment involving the Respondent’s alcohol and possible pharmaceutical or other drug addiction, her depression, post traumatic stress disorder and other conditions of mental illness. This information may be obtained by other means, by way of interrogatories or medical reports and therefore the Orders of Production in respect to these physicians are not granted. 4. The complete record and files of the Abby Lane and Mental Health Clinic are relevant to the plan of care and assessment. They are necessary and their production will not be injurious to the public interest. 5. The complete medical record, files and charts of the QEII, to the extent it has this information separate or in addition to the information held by the Abby Lane and the Mental Health Clinic, are relevant only in respect to admissions, consultations, and treatment involving the Respondent’s alcohol and possible pharmaceutical or other drug addiction, her depression, post traumatic stress disorder and other conditions of mental illness. The Minister’s request for an Order of Production from this institution captures information that is irrelevant and as result is denied. request restricted to the collection of relevant information would be considered but this request is not before me. 6. The Minister seeks the complete record and file of Adsum Centre. am not informed by either party about what these records may contain. From its description on the web site, it is funded by the Department of Community Services and it “provides support and programming, in residential setting, to 16 women and their children who are trying to address barriers, which have led them to experience homelessness. Residents are asked to make commitment of at least six months and stay maximum of 12. As part of their exit strategy, women will develop long-term plan that will encourage reflection and include tools to assist them to maintain safe, stable housing and the changes they’ve realized in their lives.” If this organization has kept records of every conversation the Respondent has had with staff, the records may contain significant irrelevant information. On the other hand if the Respondent’s alcohol and possible pharmaceutical or other drug addiction, her depression, post traumatic stress disorder and other conditions of mental illness were identified “barriers” the recommendations made to her, her compliance, and her resulting plan are relevant to the plan of care and assessment. do consider it important to consider the Respondent’s right to privacy in respect to the production of irrelevant information. The relevant information must be produced notwithstanding the Respondent’s wish to keep it private. However, it is not necessary to produce all the records. This organization may be requested to prepare report, or interrogatories may be used in respect to the identified barriers, the recommendations made, the Respondents follow through and the plan she prepared prior to her leaving the Centre. Since the Minister is requesting all records in its Order of Production deny the request. Beryl MacDonald, J.

The Minister sought numerous orders for production of medical and various other files (including the mother's complete medical files from her family physician, the Nova Scotia Hospital and another hospital, and her files from a woman's shelter and an addiction treatment and prevention service) in an ongoing child protection proceeding. The mother argued that the records sought were irrelevant and that if there was any relevance, they were privileged, were unnecessary to the fair disposition of the proceeding, and their production would not save costs and would be injurious to the public interest. The addiction prevention and treatment service, Nova Scotia Hospital and mental health clinic records and files are ordered to be produced; the medical records of the family physician, the hospital and the woman's shelter are not ordered to be produced as these files would contain some irrelevant information and the relevant information could be obtained by other means. In a child protection proceeding, documents may be relevant to prove a protection finding, to monitor compliance with existing orders, or to develop and evaluate a plan of care. Records held by individuals or organizations to whom an individual has been referred as a result of a child protection proceeding are not privileged as no confidentiality could be expected in those circumstances. Records held by individuals or organizations whose services were accessed independent of a court order or the Minister's involvement that would ordinarily attract privilege may be ordered to be produced in child protection proceedings. However, if the information contained in the records can be obtained by a means targeted specifically to produce the relevant information, then orders for production for all of the records will not be necessary to the fair disposition of the proceeding. Also, since such records contain irrelevant, as well as relevant material, such an order would violate the privacy protections found in the Charter and be injurious to the public interest.

9_2006nssc379.txt

J. Q.B. A.D. 1996 148 J.C.E. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF ESTEVAN IN THE MATTER OF AN APPLICATION FOR AN ORDER FOR THE APPOINTMENT OF GUARDIAN FOR SELWYN ROY HAND PURSUANT TO THE DEPENDENT ADULTS ACT Beaty Beaubier for the Applicant, Ronald Cathcart Tim McGeough for Selwyn Roy Hand JUDGMENT ALLBRIGHT J. April 18, 1997 By virtue of a petition dated August 14, 1996, theapplicant herein seeks the appointment of the said RonaldMervin Cathcart as property guardian for Selwyn Hand, pursuantto section 19 of The Dependent Adults Act (Saskatchewan). The proposed dependent adult, Selwyn Roy Hand resists that application. The following judgment is my resolution of the application and related matters. BACKGROUND The proposed dependent adult, Selwyn Roy Hand, was born on the 4th day of August, 1920 and at this time is seventy-six years of age. Mr. Hand lived for many years in the Biggar area of Saskatchewan and in 1994 moved to Estevan, where he has established relationship with Mrs. Annie Minto Essex. Mr. Cathcart is the nephew of Mr. Hand and while the application is brought in his name, it is in broader sense an application on behalf of Selwyn Roy Hand's extended family. Mr. Hand has never been married and has no children. Mr. Cathcart and other family members, including Mr. Hand's brother, assert that Selwyn Hand has throughout his entire life been mentally challenged. Their suggestion is that he has never been able to prudently handle money or property and that without their intervention he would not be able to effectively manage his assets and property in his own best interests and that some management or third party regulation of those assets is required in his best interest. Mr. Cathcart further suggests that, "Mr. Hand is gullible and is quite easy to talk into practically anything and could well be easily deprived of his assets". During his active working life, Mr. Hand worked as labourer for the Canadian National Railway and as well worked from time to time as farmhand. He apparently stopped working at approximately fifty-five years of age. In the mid-1940's, Mr. Hand's father died and left him 400 acres of farmland, legally described as follows: the West Half of the North East Quarter of section and the South East and South West Quarters of Section 17, Township 34, Range 11, West of the Third Meridian, Saskatchewan 80 acres as to the West Half of the North East Quarter and 10 acres as to each of the South East and South West Quarters. MINES AND MINERALS ACCEPTED by 4120 as to the South East and South West Quarters of Section 17 and CD 3814 as to the West Half of the North East Quarter of Section 8. Initially, in 1949, this land was registered directly in the name of Selwyn Roy Hand. Because of concerns over the ability of Mr. Hand to deal with his property, in 1959, Mr. Hand was persuaded by family members to transfer title to the land to his brothers, Robert Emerson Hand and Garnet C. Hand. It is acknowledged by all interested persons that Robert Emerson Hand and Garnet C. Hand held the land in trust solely for the benefit of Selwyn Hand. Garnet C. Hand died in 1972. Shortly before the death of Garnet C. Hand, trust agreement appears to have been signed by Garnet C. Hand, Emerson Hand and Selwyn Hand. Searches have made for copies of that agreement and supporting affidavits, but no copies have been found. statement of account dated September 16, 1971 from Saskatoon law firm references such an agreement however. In 1988, title to the relevant property was transferred into the names of the applicant, Ronald Mervin Cathcart and his cousin, Charles Robert Hand, both being nephews of Selwyn Hand. The purpose of that transfer was to put in place trustees of the title who were younger than Mr. Hand. In July, 1994, Charles Robert Hand passed away and as of July 5, 1995 the applicant, Ronald Mervin Cathcart, became the sole remaining registered owner of the land and remains so to this time. Over the years, as part of the "trust arrangement", Mr. Hand received rental income from the land, the amount of that income varying from time to time. At the present time there are some significant rental arrears for the farmland owing to Mr. Hand from another one of his nephews who has been the long-term tenant. As noted, in 1994 Mr. Hand became acquainted with Annie Minto Essex and formed relationship with her. At that time he began requesting that he be able to manage his own affairs and deal with his own assets. Up until approximately March of 1995, Mr. Hand was receiving $500.00 per month out of bank account which dispersed rental payments from the land. In addition, he would receive his pension cheques from the Canada Pension Plan and Old Age Security. In approximately March, 1995, all of the accrued cash assets in the bank account and other investments which had been accumulated over number of years from additional land rentals were transferred to Mr. Hand in Estevan for his own purposes. These funds approximated $36,000.00. In December, 1994 Mr. Hand and Mrs. Essex purchased home in Estevan as joint tenants, securing mortgage against the property in the approximate amount of $34,000.00. The funds received by Mr. Hand, as noted above, were used to retire the mortgage on that property in February, 1996. In February, 1996, in an attempt to obtain title and control to his land, Mr. Hand brought an application by way of Notice of Motion, to have the land registered in his name. On July 11, 1996, Madam Justice Dawson ruled as follows: Selwyn Hand (the applicant) brings an application for an [sic] Vesting Order pursuant to section 87 of The Land Titles Act vesting title to the land described in Certificate of Title No. 95S24264 in his name, or in the alternative for an order pursuant to Section 34 of The Trustees Act vesting the property in his name. should note that the application was originally returnable on March 12, 1996 and was adjourned several times at the request of the respondent. The applicant received the land in question in the 1940's as beneficiary under his father's estate. In 1951, the applicant transferred the farmland to some family members. The land was transferred to these family members to be held in trust for the applicant. The purpose of the arrangement was to preserve the farm and its income for the benefit of the applicant who was apparently careless with his property and affairs. If there was trust agreement in writing at the time of this transfer, no copy of it has been located. In 1971 it appears as if Trust Agreement was prepared, but again no copy of the agreement can be located. Over the years, the land was transferred from the original trustees to various other family members. At present the land is registered in the name of Ronald Mervin Cathcart, the respondent, who is the nephew of the applicant. The respondent acknowledges that he holds the land in trust for the applicant. The respondent objects to the application because he is of the opinion that the applicant is incapable of prudently handling money or property, is functionally illiterate and is gullible. The respondent is concerned that if the land is transferred to the applicant he will lose the benefit of the land in very short time. The applicant indicates that he previously had difficulty managing his affairs, but attributes those difficulties to severe drinking problem. He indicates that he quit drinking six years ago and has not drank since that time. The applicant has never been declared incompetent to manage his affairs. He voluntarily transferred the land and voluntarily continued to allow the arrangement to continue. There is no dispute amongst the parties that he is the beneficial owner. In the circumstances, although the respondent appears to be acting out of concern for the applicant, the applicant is entitled to manage his property, unless he is not competent to do so. As there are no facts in dispute in the matter before me, and there is no other reasonably convenient remedy, and as there are no other parties affected by this application and by reason of the exceptional circumstances of the application, am prepared to grant vesting order pursuant to section 87 of The Land Titles Act directing the Registrar for the Saskatoon Land Registration Distrcit [sic] to cancel Certificat [sic] of Title No 95S24264 in the name of Ronald Mervin Cathcart and issue new title for this land in the name of Selwyn Hand. However, as the respondent is concerned that the applicant is not competent to manage his affairs, the vesting order will be postponed for 45 days to allow the respondent to bring an application returnable within the 45 days, should he so desire, for the appointment of property guardian pursuant to The Dependant's [sic] Adult Act. In the event that such an application for the appointment of property guardian is commenced and returnable within the 45 days, the vesting Order shall be stayed until the resolution of that application. Further in the event that such an application is commenced, this file must be brought to the attention of the judge hearing the matter. In the event that no such application for the appointment of property guardian for the applicant is brought, the vesting order shall issue on the 46th day after the date of this decision. The within application by Mr. Cathcart followed from the contingency reflected in the order of Madam Justice Dawson. As part of the relief originally sought through the petition, in addition to requesting the appointment of property guardian, the applicant also sought an order requiring Selwyn Hand to attend before and be evaluated by medical practitioner for the purposes of the application. At an earlier date, declined to make the requested order for an independent medical examination. In response to this application, Mr. Hand indicates that for number of years he had personal drinking problem that did cause him difficulty in handling his affairs and he recognizes the prudence of the family having assisted him by controlling the land and providing him with regular income. He ceased drinking approximately six years ago and believes that he is in position to adequately manage his own affairs. He wishes to have the property sold with the sale proceeds being available to him. He believes that he is in position to prudently deal with his assets although he recognizes that some independent assistance in the handling of his affairs and the management of his assets would be in his best interest. Mr. Hand was assessed by Dr. Donald MacRae, psychiatrist practising at Carlyle, Saskatchewan, on October 28, 1996. His assessment of Mr. Hand reflects the relevant medical condition of Mr. Hand from his perspective. His observations are succinctly embodied in the medical report of October 28, 1996. Those observations were in essence re- iterated during his oral testimony before me, and are as follows: Many thanks for referring Mr. Hand whom saw October 28, at which time diagnosed him as substance induced persisting amnestic disorder. Many thanks for your letter dated September 20, it was very helpful. Mr. Hand is 76 year old gentleman, presently living common-law (4 years) with Annie Essex. He is of irish [sic]origin, Anglican religion, non-active and retired former CNCP worker who used to live at Biggar. He presently resides at 13- 26th[sic] St. Estevan with Annie. Mr. Hand states that he has never had any previous psychiatric attention but stated that the reason he was here was because "my brother and sister think need to see one". He stated that he is trying to get his land back and they think that I'm nuts and crazy. He said have lawyer and he could only remember his first name which is Tim but on interview with Mrs. Essex and her daughter, who accompanied him, the name of the lawyer is Tim McGeough out of Estevan. Mr. Hand maintained that he had no trouble with his memory and that he has felt very good both physically and mentally lately. On mental status examination he presented as rather short heavy set white haired man who was wearing cap, he is 5'5" tall and wearing glasses. He verbalized quite well. His mood and affect seem appropriate. He said his sleeping he sometimes has problems with and says he is nervous as his right hand shakes and he says goes to sleep on him. He says he sleeps very well until or in the morning and then seems to be awake. His appetite is good, weight 150 pounds, he felt that was the most he had weighed and the lowest was 140. When questioned about suicidal ideation he said he gets very down and was until he met his present common-law relationship Annie. Before he never thought about taking his own life. On testing his memory and during mini mental status he scored 25 out of 30 which suggested some problems with his long-term memory but his immediate recall is good. He knew the date, time, season, he was orientated to place, and could recall the name of three objects five minutes after asked him to do so. He had difficulty with serial 7's or spelling "world" backwards. He had some difficulty with reproducing an intersecting pentagon. He was aware of his financial matters and was aware that he was getting money from his farm until 1994 and that he owns 400 acres which he said was left to him by his father. He was aware that his eldest brother who died or years ago, Percy, son Harold, was farming. He stated that when he was drinking he got his family to take over the land so he wouldn't lose it due to his drinking. He maintains that he has not been drinking for over four years. He said there was alcoholism in he [sic] family with brother Percy and Emerson drinking. There was no evidence of any hallucinations or delusions. His insight and judgment felt were moderately good. In his past history which he gave me himself he was born in Lenny South of Perdue, attended country school there until grade 6, quit school he said, he was not good in arithmetic, stayed at home on the farm and then worked in the CN until he became sick he said in 1955, had heart trouble and he said he got pension then. He tried to do some farming South of Linnie on the 400 acres. felt there was some "blanks" in his long-term memory and this is why have made diagnosis likely substance induced persisting amnestic disorder from his original overuse of alcohol. He has never married but since 1994 he has lived common-law with Annie Essex. He did have another long-term relationship in which he lived with another lady until she died. He could not remember her name but she was First Nations lady. He has been living with Annie since 1994. Past physical health reveals that he has had an T&A, appendectomy he thinks. He has had heart problems and he presently takes Ditropacs b.i.d., Novasen 3-25 mgs. tablets once day, Vasotec (Analopril) 20 mgs. o.d., Lenedril 10 mgs. (Felodipine) b.i.d. and Vasertic o.d.. He said he has been in hospital for his heart but he didn't think it was this year. He thought he was in hospital in Saskatoon and Biggar. He describes an operation on his neck which may have been an endarterectomy. He said his left hand used to get quite numb but it is better since he had the surgery. He did not think there was any psychiatric disorder in his family. In his own family he said his father, James, died in 1940 at the age of 70. He said his relationship was good and that he was good father. His mother he said he did not know her maiden name, he thought she died in 1921. He would just be baby then. He said his older sister cared for him. Siblings include Percy, married to Irene, they had three children, he died or years ago, lives on the farm south of Lennie: Ruggles, who died four years ago, lived at Birkdale; Ken who died three to four years ago, lived at Star City; Bert, dead, lived in Manitoba; Emerson is married to Edith, they had one boy who died in 1994, they are living in Purdue; Margery, married to Leonard Castgar, apparently is widow, she has three children, Wayne in Alberta, Ronald married to Mary in Saskatoon and Lloyd, married in Saskatoon. It is Mr. Hand's nephew, Ronald and his mother that seems to be pushing the question of Mr. Hand's competency. He also has sister, Harriette, who died, lived at Feudal, and Garnet who is apparently live and living in Purdue. Psychosexual development reveals normal milestones. He stated that he did live with another lady for while. He is not sexually active at the moment. He says he does not drink, he said he used to drink quite lot, he said he did get picked up for drinking and driving and lost his driver's license so he quit driving in 1994. He said there is alcoholism in the family, Percy, and Emerson had problems. He said he went to A.A. and still goes on Monday nights. He does not smoke, he used to about or years ago. He said at the present time his finances are alright but he simply gets pension of $724.72, part of which is the old age pension and part is the CPP. He said he was getting money from the farm until 1994. He says he has been fighting for his farm since that time but states that his nephew, Ron Cathgart [sic] says it is in his name and in Ron's name and not in Selwyn's and that is the problem he is having now. He would apparently like to sell the farm and perhaps travel with his present common-law relationships.[sic] The diagnosis is substance induced persisting amnestic disorder. felt that there was some problems with his long-term memory which are probably related to his long-term use of alcohol. However, his present mental status in my opinion is sound, his immediate and recent memory are intact, and his orientation is correct and his judgment and reasoning are in order. He would seem to be quite competent to manage his own affairs and is aware of the nature of the bounty. Many thanks for this most interesting referral. It is the extended position of the applicant, as expressed to me at the hearing of this application, that while Mr. Cathcart believes that the appointment of property guardian is in the best interest of Mr. Hand, Mr. Cathcart and other family members would be prepared to see the Public Trustee of Saskatchewan designated as the property guardian rather than family member. RELEVANT LAW As Wright, J. noted in Kemp (1991), 1991 CanLII 7843 (SK QB), 89 Sask. R. 249, at p. 252: "The deprivation of person's liberty, independence and control of his or her affairs, is such serious matter, that the proof of dependency must be clear." This is most appropriate observation. Section 18 of The Dependent Adults Act S.S.1989-90, c.D-25.1 provides: 18(1) Where an application is made for an order pursuant to this Part, the court shall inquire into: (a) the extent to which the person with respect to whom the application is made is in need of property guardian, and for that purpose: (i) may consider the physical, psychological, emotional, social, health, residential, vocational and other needs of that person; and (ii) shall consider the extent, nature and complexity of that person's estate, that person's economic needs, and the existence of any alternative means of managing the estate; and (b) the wishes of the person to the extent that the court considers appropriate having regard to the capacity of that person. (4) The court may make an order pursuant to this Part if the court is satisfied based on the evidence submitted to it that the person with respect to whom the application is made is: (a) an adult, whose ability to: (i) receive and evaluate information effectively; or (ii) communicate decisions; is impaired to such an extent that the person lacks the capacity to make reasonable judgments with respect to matters relating to all or any of his or her estate; and (b) in need of property guardian. (5) The court shall not make an order pursuant to this Part unless it is satisfied that it is in the best interests of the person with respect to whom the application is made to grant the order. Section 41(6) is also relevant to this matter. It provides as 41(6) If, in the opinion of the court: (a) the dependent adult is still in need of property guardian; and (b) no application for another property guardianship order will be made; the court may appoint the public trustee as the property guardian for the dependent adult. The Public Trustee Act S.S. 1983, c.P-43.1 is also relevent to my determination. Section 29 under the heading "PROPERTY OF DEPENDENT ADULTS" provides as follows: 29(1) The public trustee shall act as the property guardian of dependent adult when: (a) certificate of incompetence has been issued under The Mentally Disordered Persons Act; and (b) an acknowledgement to act in the form prescribed in the regulations has been signed under seal by the public trustee; with respect to that person. (2) Where no person applies or appears to be interested in making an application pursuant to The Dependent Adults Act to be appointed property guardian of person in respect of whom clause (1)(a) applies, the public trustee: (a) in the case of an estate worth less than $1,000 that requires administering, may sign and seal an acknowledgment to act; or (b) in the case of an estate worth $1,000 or more that requires administering, shall sign and seal an acknowledgment to act. Where: (a) person has applied pursuant to The Dependent Adults Act for an order appointing him as property guardian of dependent adult and it appears to the court that it would not be in the best interests of the dependent adult to appoint the applicant as property guardian; or (b) property guardian of dependent adult appointed pursuant to The Dependent Adults Act resigns or is removed; the court may, with the consent of the public trustee, make an order appointing the public trustee as property guardian. (4) Repealed. 1989-90, c.18,s.10. (5) An order appointing the public trustee as property guardian, or an acknowledgment to act mentioned in this section signed under seal by the public trustee, shall not preclude any other person from applying to the court pursuant to The Dependent Adults Act to be substituted as property guardian in place of the public trustee. (6) Where the public trustee is appointed as property guardian on an application: (a) mentioned in subsection (3); or (b) pursuant to The Dependent Adults Act; the public trustee's powers and duties as property guardian are the powers and duties given to the public trustee by this Act. Following upon the appointment of the Public Trustee in this context, sections 30 and 31 provide specific powers to the public trustee in his capacity as property guardian of dependent adult. CONCLUSION am appreciative of the efforts of both Mr. McGeough and Mr. Beaubier in responding to the Court's inclination in dealing with this matter. Their inquiries as to the potential involvement of the Public Trustee have been most helpful and their agreement on the principle of resolving this matter is also appreciated. am of the opinion that Mr. Hand is capable of managing significant portion of his business affairs and matters that relate to his estate and property. I believe, however, that he does require somesignificant independent assistance in the management of anestate in the nature of that which is represented by the landwhich is currently held for his benefit. He has expressed to me desire to have the land sold and the proceeds made available to him for various purposes. find his suggestions and proposals to be reasonable ones and at this stage financially modest. Again, believe that he is capable of managing in fundamental fashion his property, however it is acknowledged by him through Mr. McGeough that some assistance would be required. In applying the spirit embodied in section 18 of The Dependent Adults Act, have concluded that he requires some assistance to augment his own judgment with respect to his estate and that overall he is in need of property guardian to provide measure of assistance to him. am also of the view that the appropriate property guardian is the Public Trustee for the Province of Saskatchewan. Accordingly, I determine that Mr. Hand meets the criteria setforth in section 18 for the appointment of a property guardianand I hereby designate the Public Trustee to be that propertyguardian. However, as I have indicated earlier, I believe thatMr. Hand is capable of managing some of his affairs and I amfurther of the view that at this stage in his life, the planswhich he proposes are reasonable and I believe that some ofthe proceeds from the land sale should be placed directly intohis control to pursue his financial commitments and hisdreams, with the balance being placed in the hands of thePublic Trustee as his property guardian to appropriatelyadminister in his longer term best interests. Therefore, am of the view that the land should firstly be vested directly in the name of Selwyn Roy Hand. return to the fiat of Madam Justice Dawson of July 11, 1996 and lift the conditional stay which she had put in place pending the resolution of the within application. Accordingly, pursuant to her order, there shall be Vesting Order pursuant to section 87 of The Land Titles Act, directing the Registrar for the Saskatoon Land Registration District to cancel Certificate of Title No. 95S24264 in the name of Ronald Mervin Cathcart and issue new Title for this land in the name of Selwyn Roy Hand. Mr. Hand may then choose to deal with the land either by way of leasing the property out or as he had indicated to the Court, sell the land to obtain the proceeds from the sale. In the event that Mr. Hand chooses to sell the land so vested in his name, now propose to deal with the proceeds from that sale. The applicant, Mr. Cathcart, on his own behalf and on behalf of the family members, indicates that they have expended significant amount of monies in dealing with this matter which they assert has been for the benefit of Mr. Hand. They request payment of those costs from the proceeds of the sale. Mr. McGeough on behalf of Mr. Hand, indicates that he understands portion of the cost being covered, but only portion in light of the resistance which he ascribes to Mr. Cathcart and the family in reaching resolution initially, such as is embodied in this judgment. am of the view that some of the costs of Mr. Cathcart should be reimbursed in recognition of the interests of the family in maintaining and preserving the asset for Mr. Hand. am not however persuaded that the entire amount of the costs should be reimbursed. Accordingly, fix the sum of $7,000.00 to be paid to the applicant herein as portion of the costs of these proceedings. This amount is to be paid in the event that Mr. Hand selects the option of selling his land and the land is subsequently sold. further direct that, for the purposes of ensuring that an adequate return is received for the sale of the land, direct that any proposed sale is subject to the approval of this Court upon the application of Mr. Hand. Such application may be made either to me or to another judge of this Court. Upon approval of proposed sale, and upon such approved sale coming to fruition, direct that from the proceeds there be deducted the sum of $7,000.00 which have allotted to Mr. Cathcart, and all other reasonable expenses associated with such sale. Thereafter, one half of the proceeds are to be provided directly to Mr. Hand to be dealt with by him as he chooses, with the remaining half of the proceeds being placed in the hands of Mr. Hand's property guardian, The Public Trustee of Saskatchewan. The Public Trustee will then administer such funds in accordance with the normal powers and procedures of his office, acting in the best interests of Mr. Hand. The parties have leave to apply to me for further and other incidental direction in pursuance of this judgment. ALLBRIGHT J.

The applicant sought to be appointed as property guardian for his uncle pursuant to s19 of the Dependent Adults Act. The proposed dependent adult resisted the application and attributed his previous difficulty managing his affairs to a severe drinking problem but indicated that he had not been drinking for six years. The uncle had never been declared incompetent to manage his affairs. He voluntarily transferred the land left to him by his father and had allowed the trust arrangement to continue since 1951. Over the years, the land was transferred from the original trustees to various other family members and was presently registered in the name of the applicant nephew. There was no dispute that the uncle was the beneficial owner.HELD: The land was vested directly in the name of Selwyn Hand. The conditional stay in place pending the resolution of this application for the appointment of a property guardian was lifted. 1)The proposed dependent adult was capable of managing a significant portion of his business affairs and matters relating to his estate and property. However he required significant independent assistance in the management of the land held for his benefit. His suggestions and proposal to sell the land and travel were reasonable and financially modest. 2)The criteria set forth in s18 for the appointment of a property guardian was met and the Public Trustee was appointed to administer the balance of the proceeds from the land sale remaining after the uncle pursued his financial commitments and his dreams. 3)Costs in the amount of $7,000 were to be paid to the applicant in the event the uncle chose to sell his land. 4)Any proposed sale would be subject to the approval of the Court upon application of Hand. One half of the proceeds were to be provided directly to Hand to be dealt with as he chooses and the remaining half were to be administered by the Public Trustee in his longer term best interests according to the normal powers and procedures of that office.

1997canlii11078.txt

Q.B. 1994 NO. 01107 J.C. R. IN THE COURT OF QUEEN'S BENCH AT THE JUDICIAL CENTRE OF REGINA BETWEEN: BRENDA HILDAHL-TRAUTER, and CALVIN TRAUTER, RESPONDENT J. G. BRICK for the petitioner M. S. SCOTT for the respondent JUDGMENT MacLEAN, J. February 12, 1996 The petitioner, Brenda Hildahl-Trauter ("Brenda"),petitions the Court for a divorce, custody of the children,spousal and child support and an unequal division ofmatrimonial property. The respondent, Calvin Trauter("Calvin") counter-petitions for similar relief, including adivorce, joint custody of their children and an equal divisionof matrimonial property. I. The parties married on September 24, 1983, after having cohabited for about one year. They separated on October 18, 1994. They have two children, Dillon, 10, and Levi, 6. When they married, Brenda was employed in an office at Weyburn, Saskatchewan, and on her father's farm. She owned fully furnished home in Weyburn, new car, and had $17,000.00 in R.R.S.P.s. When they met, Calvin was employed in Weyburn by the Provincial Government. He owned few pieces of furniture, some tools and yard equipment, motorcycle and truck encumbered by chattel mortgage. Soon after they married, Calvin was transferred to Saskatoon. Brenda sold her home and applied the proceeds of $49,381.93 toward the purchase of their home there. They had only lived in Saskatoon for about one year when Calvin was transferred again, this time, to Regina. The home in Saskatoon was sold and the proceeds, along with Brenda's R.R.S.P.s and further $3,250.00 which she had, were used to help purchase their home in Regina. They borrowed $32,000.00 on mortgage which was later paid with funds received from Calvin's parents. The title to the matrimonial home is now debt free. The parties lived in this home until they separated. They disagree on its value. On the evidence, find it is worth $121,000.00. Soon after the separation, Brenda was granted exclusive possession of the matrimonial home and interim custody of the children. Calvin was ordered to pay monthly spousal and child support of $1,400.00. In general terms, the order provided Calvin with access on alternate weekends and one evening visit every two weeks. Disagreement arose over access, resulting in another order specifying the terms of access with precision. In May, 1995, Calvin applied for an order listing the home for sale and for pre-trial conference. The application for sale was dismissed. On July 7, 1995, further order for access was made so that Calvin could have the children with him for two weeks during summer holidays. Finally, on November 22, 1995, Calvin obtained an order varying the interim order for spousal and child support from $1,400.00 per month to $400.00 to be paid prior to the trial, which was then scheduled to proceed late in January, 1996. The basis for this application was that on September 1, 1995, Calvin took leave of absence from his employment with the Provincial Government and his income is much reduced. II. There are several issues which must be resolved. The first two involve custody of and support for the children. Brenda contends she should have sole custody, while Calvin believes it would be best for them if there is an order for joint custody and, for the present, that they reside with their mother. The boys each has problem which makes parenting more difficult. Brenda believes Dillon suffers from dyslexia, Calvin does not agree. In any event, Dillon does have problem with his vision with the result he has had difficulty in school. He has been placed temporarily in special program at another school where he seems to be progressing. It is hoped he will soon be reintegrated into his regular school. Both parents expressed willingness to help him at home. Levi is doing well in school. He may have minor problem articulating sounds, but there is little cause for concern. What is of concern is that he is asthmatic. Brenda has seen to it that his babysitter and his teacher are aware of the problem and of the need to be alert. He is allergic to tobacco smoke. Calvin smokes, but says there is ventilated room in his home where he will smoke so as not to bother the boy. The matrimonial home is located near the school which Levi attends and reasonably close to Dillon's. When the remedial program is completed, Dillon and Levi will again attend the same school. Brenda pointed out the boys know no other home. Their friends live in the neighborhood, and the babysitter lives few doors away. At this time, the only non-school activity they have entered is Beavers and Cubs. With her present means, Brenda cannot afford to enroll the boys in other activities. The parties had traditional marriage. Brenda did not work outside the home. Her life centered around her home and family. Calvin was the breadwinner. His salary as civil servant enabled the family to maintain comfortable standard of living. Brenda impressed me as thoughtful, caring parent, who has consistently put the children's welfare ahead of her own. Calvin is intelligent and articulate and, am certain, loves his sons; however, he has not made their welfare his first priority. It was very obvious when they testified that there is good deal of hostility between them. Their relationship was particularly acrimonious during the first months following separation. Brenda was out of the workforce from the time she and Calvin married. Only recently has she obtained full-time employment which pays modest monthly salary of $1,302.00. The order for interim support required payments to begin September 1, 1994. At that time, Brenda's monthly salary from part-time employment was $600.00. Thereafter, for six months, she worked full-time when she replaced an employee on maternity leave. The maternity leave ended in September, 1995, when Brenda again reverted to part-time employment. At the same time that Brenda's temporary full-time employment ceased, Calvin took one-year leave of absence from his employment. He is now employed as sign painter by friend in Saskatoon. His monthly income has dropped from over $4,200.00 to under $1,000.00, and he says he cannot support his wife and children. He stated there were several factors for him taking leave of absence, but in his evidence, he mentioned only one. Since he is the Assistant Director for his Unit, it falls to him when cutbacks occur to inform employees their employment is terminated. This caused him, as he says, lot of strife. Calvin's own employment is not in jeopardy. It is assured if he returns following his leave of absence. Likely, Calvin would not have applied for leave of absence without giving the matter considerable thought. It is instructive of his attitude that at about the time he applied for an order to sell the matrimonial home, he was contemplating applying for the leave of absence. Indeed, lessthan three weeks after his application for sale of the homewas rejected, he applied for the leave of absence. am not persuaded these are the actions of father intent upon doing what is best for his children. It is not unreasonable toinfer that he made up his mind to avoid complying with theorder for interim support. Apart from funds set aside for the children's education, there are no savings to tide them over, nor is there any property which could be liquidated for this purpose. Calvin seems oblivious to the needs of his children. reject his suggestion that Brenda has been improvident. Apart from one or two small items, her living expenses disclosed in her financial statement appear reasonable. Calvin, rather glibly, suggested the boys do not have the amenities they used to have, but that they have the essentials. Two factors militate against making an order forjoint custody. The first is the obvious acrimony whichexists. As my brother, Dickson, J., stated in Rilkoff v. Rilkoff (an unreported decision rendered in 1991) and quoted with approval by Carter, J. in Kreuger v. Kreuger (1993) 104 Sask. R. 95, at p. 101: For such orders to succeed, the parents must have one another's respect; they must share child rearing philosophy; each must be convinced that the other is beneficial presence in the child's life; they must trust one another to do what they would have done and they must cooperate to achieve common goals. Sadly, none of these prerequisites exist in this case. Indeed, few divorced parents have this sort of relationship. Without it, joint custody relationship is doomed, as it is in this case. The children are confused and upset by the pushing and pulling of their parents and by their inability to make their joint custody agreement work. The best interest of the children can only be served by replacing the uncertainty of the agreement with certainty of custody order. The second factor is Calvin's reluctance to supporthis children. Brenda was out of the workforce for many years and no reasonable person could expect her to fill the void left by Calvin's wilful failure to maintain his income at reasonable level. It appears he is attempting to punish Brenda by putting himself in position of being unable to contribute to the children's support in meaningful way. I am satisfied that the children's interests arebest served by awarding sole custody to their mother, withaccess to their father on the same terms as contained in theinterim order. do this keeping in mind Calvin's assurance that he will allow the boys some freedom to choose whether they must travel to Saskatoon every other weekend to be with III. Spousal and child support are issues. Temporarily, at least, Calvin has put himself in position of being unable to contribute to the support of his family. Brenda has re-entered the workforce after many years' absence. Clearly, she has suffered an economicdisadvantage from the marriage and its breakdown. She has employment which she believes will within few years enable her to become financially self-sufficient. It is Calvin's responsibility to assist her in achieving this goal. He also, of course, has responsibility to adequately support his children. somewhat analogous situation occurred in Delleman v. Delleman (1994), 1993 CanLII 6727 (SK QB), 118 Sask. R. 79, where the husband quit his job and enrolled in university and sought to have his support obligations reduced. At p. 80, Dickson, J. had this to say: The father voluntarily quit job that enabled him to pay an extremely modest support obligation. He quit his job so he could enrol in training course that he thought would advance him in the workplace. He is entitled to do that but he is not entitled to pass on to his former wife and children (or to the public purse as it happens in this case) the economic consequence of his decision. If he is going to make such career move he must first organize his situation in such manner that he can keep up his obligation to his children. Calvin's deliberate act of taking leave of absence cannot relieve him of his responsibilities. He cannot claim he does not have the means to adequately contribute to the support of his wife and children. have concluded that spousal support is required for period of three years to enable Brenda to become economically independent. order that beginning March 1, 1996, and continuing until February 28, 1999, Calvin pay monthly spousal support of $500.00. further order Calvin to pay child support of $1,000.00 per month commencing March 1, 1996. Such payments are to continue so long as the children are children within the meaning of The Divorce Act. IV. There are several issues involving matrimonial property. Title to the matrimonial home is not encumbered. The parties have bank loan of approximately $13,000.00. Brenda has been paying the loan installments of $240.00 month since September, 1995, when Calvin began his leave of absence. It is conceded that the car which Brenda owned whenshe married is exempt property. Prior to marriage, Calvin owned a motorcycle. Brenda submits it has appreciated in value, Calvin says it has not. There is considerable divergence in their appraisals. On the evidence, I cannot find there has been a significantincrease in its value during the marriage; and I will,therefore, disregard it. Sergio Coppola was asked to appraise the motor vehicles which the parties own. He stated that he valued them on the assumption they were mechanically sound. find it hard to believe that prospective purchaser would buy vehicle without knowing its mechanical condition. Mr. Coppola is of the opinion that Calvin's 1988 Ford half-ton truck is worth $9,500.00 even though he was unable to enter the cab to check the odometer. Calvin says he paid $9,500.00 for the truck in 1992. He suggests, and find, that it is worth in the neighborhood of $8,000.00. Mr. Coppola valued Brenda's vehicle at $3,800.00, and this value was not questioned. No evidence was presented to enable me to determinethe fair market value of the household goods, tools andequipment. Calvin prepared a list of items he wishes toreceive from the matrimonial home (Ex. D-4). He will accept these items in full as his share of the contents of the matrimonial home. This seems reasonable. I order he receivethese items. Apart from their home and contents, Calvin's pension and the children's education funds, the matrimonial property consists of: Calvin's truck: $8,000.00 Canada Savings Bond (which Calvin cashed): 1,000.00 Brenda's vehicle: 3,800.00 Total: $12,800.00 Brenda's one-half share: $6,400.00 LESS: Her vehicle: 3,800.00 Balance: $2,600.00 Brenda will have judgment for $2,600.00. I furtherorder that Calvin must assume and pay one-half of the bankloan. Calvin has pension funds with the ProvincialGovernment. They consist of his contributions and interest and have value of $51,993.78. It is agreed these funds areto be shared equally and I so order. leave it with Counsel to arrange for the actual division with leave to apply to me for directions if required. Brenda submits that her financial contributions to the matrimonial home are exempt from distribution pursuant to Section 23 of the Act since they were assets brought into the marriage. Alternatively, she claims there are extraordinary circumstances within the meaning of Section 22 which would make an equal division of the matrimonial home unfair or inequitable. In the further alternative, she claims that as the custodial parent, an equal division of the home would be unfair or inequitable to her. The opening words of Section 23 specifically exclude the matrimonial home and household goods from the operation of the Section. I, therefore, must reject Brenda's first submission that she is entitled to pre-marital exemption. Section 22(1) of the Act reads as follows: Where matrimonial home is subject of an application for an order under subsection 21(1), the court shall, having regard to any tax liability, encumbrance or other debt or liability pertaining to the matrimonial home, distribute the matrimonial home or its value equally between the spouses except where the court is satisfied that it would be: (a)unfair and inequitable to do so, having regard only to any extraordinary circumstance; or (b)unfair and inequitable to the spouse who has custody of the children; and in that case the court may: (c)refuse to order any distribution; (d)order that the entire matrimonial home or its value be vested in one spouse; or (e)order any distribution that it considers fair and equitable. What constitutes an extraordinary circumstance has been considered in number of decisions. As Halvorson, J. stated in Sheridan v. Sheridan (1981), 1981 CanLII 2212 (SK QB), 10 Sask. R. 255, each case must be decided on its own particular facts. Counsel referred me to several cases in which extraordinary circumstances were found to exist. In Harasymuk v. Harasymuk (1992), 1991 CanLII 7715 (SK QB), 98 Sask. R. 252, Carter, J. considered number of these decisions and concluded that the circumstances in the case before her were extraordinary. common thread running through the Harasymuk decision and others is that marriage of short duration has frequently been considered an extraordinary circumstance mandating an unequal division of the matrimonial home. Unlike these cases, the present case involves an eleven-year marriage. In my view, it is not extraordinary for one spouse to bring substantial assets to the marriage which are used to purchase family home. The single unusual circumstance in this case is the extent of Brenda's assets, considering that she was only 24 years old when she married. This does not constitute an extraordinary circumstance within the meaning of Section 22(1)(a). In my opinion, in the circumstances, it would beunfair and inequitable to Brenda as custodial parent to orderan equal division of the matrimonial home. see no reason why Calvin's share of the home should not be charged with spousal and child support. As I have said, Calvin cannotavoid his responsibility of providing an adequate level ofsupport by turning his back on well-paid employment. Upon theassumption that he will resume his employment with theProvincial Government when his leave of absence expires, Iorder that spousal and child support be deducted from hisshare of the matrimonial home. also charge his share of the matrimonial home with the arrears of spousal and child support of $4,471.48 and $2,600.00 due Brenda as her share of matrimonial property. Similarly, if Brenda is required to pay more than $6,500.00 upon the bank loan, all amounts paid by her in excess of $6,500.00 will be debt due her and payable from Calvin's share of the matrimonial home. Calvin's leave of absence will expire August 31, 1996. The several deductions from his share of the matrimonial home effective that date will be as follows: 1. Spousal and child support (March to August 31) $1,500.00: $9,000.00 2. Arrears of support: 4,471.48 3. Brenda's share of matrimonial property: 2,600.00 Total: $1,071.48 The foregoing will leave Calvin an equity in the matrimonial home of $44,428.52 on September 1, 1996. If he does not return to his employment with the Provincial Government on that date, his equity in the matrimonial home will vest in Brenda as lump sum award for the support of herself and the children. make this order having in mind the decision of Halvorson, J. in R.W. v. J.M. (1994), 1993 CanLII 9018 (SK QB), 111 Sask. R. 303, where at p. 306, he said: There are situations, however, where lump sum support is appropriate. Several immediately come to mind: (1) where there is money available, say from property division, and risk future support payments will not be made; (2) where the failure to pay past support has resulted directly in debt accumulation by the custodial parent; and (3) where the noncustodial parent has deliberately avoided attempts to enforce payments resulting in an accumulated support obligation. An illustration of this last example is found in the case of Ambrose v. Ambrose (1990), 24 R.F.L. (3d) (Man. C.A.). All three of these factors would appear applicable in the circumstances of this case. After February 28, 1999,Brenda is given leave to return to this Court so that childsupport may again be considered. The Matrimonial Property Act provides that the welfare of children should displace the other considerations enumerated in the Act. It is apparent that the children will benefit by living in the matrimonial home for the foreseeable future. I order that Brenda may maintain possession of thehome until Levi's eighteenth birthday, or until she shallvacate the property. During her occupancy, she shall adequately maintain the home and promptly pay taxes. When her possession ceases, failing an agreement, the home shall be sold and the proceeds divided in accordance with the foregoing reasons. decline to order costs with respect to Brenda's pre-trial motion which heard by telephone few days before the trial. do so because, from my perusal of the file, it appears no costs were ordered with respect to other motions such as Calvin's attempt to secure an order selling the matrimonial home. There will be judgment for divorce in accordance with the form provided in the Rules of Court. make no order with respect to the costs of these proceedings.

The petitioner sought a divorce, custody, spousal and child support and an unequal division of matrimonial property. The respondent counter-petitioned for similar relief, including divorce, joint custody and an equal division of the property. HELD: 1)Sole custody was awarded to the mother with access on the same terms as contained in the interim order. Two reasons for not awarding joint custody were the obvious acrimony between the parties and the respondent's reluctance to support his children. Three weeks after his application for sale of the home was rejected, he applied for a leave of absence from his job. It was inferred that he was trying to avoid complying with the order for interim support. 2)The mother re-entered the workforce after many years' absence. She suffered an economic disadvantage from the marriage and its breakdown. 3)The car owned by the petitioner when she married was exempt property. The motorcycle was disregarded as there had not been a significant increase in value. The list prepared by the respondent was used to divide household goods, tools and equipment. 4)The respondent was to assume one-half of the bank loan and it was agreed that the pension funds should be shared equally. 5)It would be unfair and inequitable to the custodial parent to order an equal division of the matrimonial property. The petitioner was granted possession of the matrimonial home until the younger child's 18th birthday or until she vacated the property. 6)The respondent cannot avoid his responsibility of providing an adequate level of support by turning his back on well-paid employment. Spousal and child support were deducted from his share of the matrimonial home. The petitioner was given leave to return to Court after February 28, 1999 for reconsideration of child support.

e_1996canlii6831.txt

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2004 SKCA 75 Date: 20040518 Between: Docket: 906 Coram: Bayda C.J.S., Sherstobitoff Lane JJ.A. Counsel: Tiffany M. Paulsen for the Appellant E.F.A. Merchant, Q.C. for the Respondent Appeal: From: 2003 SKQB 517 (CanLII) Heard: May 3, 2004 Disposition: Dismissed Written Reasons: May 18, 2004 By: The Court THE COURT [1] This appeal from an order respecting custody and access to children cannot succeed. The trial judge made no error of principle, and there was evidence to support his findings of fact. He took all relevant matters into account and relied on no irrelevant matters. Above all, upon a careful consideration of all of the evidence, we have not been persuaded that the interests of the children would be better served by the parenting regime proposed by the appellant. [2] The appeal is accordingly dismissed without costs to either party. DATED at the City of Regina, in the Province of Saskatchewan, this 18th day of May, A.D. 2004. BAYDA C.J.S. FOR THE COURT

Fulltext of judgment follows: [1] This appeal from an order respecting custody and access to children cannot succeed. The trial judge made no error of principle, and there was evidence to support his findings of fact. He took all relevant matters into account and relied on no irrelevant matters. Above all, upon a careful consideration of all of the evidence, we have not been persuaded that the interests of the children would be better served by the parenting regime proposed by the appellant. [2] The appeal is accordingly dismissed without costs to either party.

7_2004skca75.txt

M. Gordon, Court of Appeal for Saskatchewan Docket: CACR2618 Citation: Chu, 2016 SKCA 156 Date: 2016-12-02 Between: Christopher Pang Chu And Her Majesty the Queen Before: Lane, Jackson and Ottenbreit JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Madam Justice Jackson In concurrence: The Honourable Mr. Justice Lane The Honourable Mr. Justice Ottenbreit On Appeal From: 2014 SKQB 414 (CanLII), Saskatoon Appeal Heard: May 9, 2016 Counsel: Patrick C. Fagan, Q.C., for the Appellant Wade McBride and Kirsten Janis for the Respondent Jackson J.A. I. Introduction [1] Christopher Pang Chu was found guilty of conspiring with others to traffic in cocaine contrary to s. 465(1) of the Criminal Code, RSC 1985, C-46, and trafficking in cocaine contrary to s. 5(1) of the Controlled Drugs and Substances Act, SC 1996, 19. He was sentenced to term of 7.5 years in custody and prohibited from applying for parole before the expiry of three years: see Pang Chu, 2014 SKQB 414 (CanLII) [Conviction Decision]. He was granted judicial interim release pending his appeal (see Chu, 2015 SKCA 60 (CanLII), 460 Sask 157). He appeals his conviction only. [2] Mr. Chu’s first ground of appeal is based on the learned trial judge’s refusal to grant an adjournment of the trial to allow review of recently disclosed and discovered documents: see Chu, 2014 SKQB 288 (CanLII), 455 Sask 168 [Adjournment Decision]. In the two days immediately preceding the trial, Crown counsel disclosed the existence of approximately 1,900 documents. Mr. Chu submits that the trial judge should have granted an adjournment to permit proper assessment of the late-disclosed documents. As part of this argument, Mr. Chu submits that neither Crown counsel nor the trial judge could have accurately assessed the relevance of the documents as the judge was not provided with sufficient information to permit such an assessment. [3] Mr. Chu submits that to allow the conviction to stand in the face of all relevant circumstances would amount to miscarriage of justice. He asks that the verdict be set aside and new trial ordered. agree with Mr. Chu’s submissions. To this day, the documents remain undisclosed. This Court is in the same position as the trial judge, which means that we are not in position to assess the undisclosed documents to determine whether the undisclosed information could have affected the verdict. new trial is the only remedy available to the Court. [4] Mr. Chu has other grounds of appeal. He argues the following: (i) the verdict is unreasonable or unsupported by the evidence; (ii) the trial judge erred by refusing to grant stay of proceedings when it was discovered that the police had destroyed number of email messages; and (iii) the trial judge erred by admitting the certificates of an analyst attesting to the fact that substance found in the possession of third party was cocaine and admitting certificate of conviction with respect to that individual. Mr. Chu submits that these grounds of appeal also merit new trial. [5] Since have concluded that the appropriate remedy to address the late and non-disclosure issue is new trial, do not need to address Mr. Chu’s other grounds of appeal. II. Trial Context and the Conviction Decision [6] In light of my decision to order new trial, will review the circumstances of the case as briefly as possible. [7] The Saskatoon Combined Forces Special Enforcement Unit [Special Enforcement Unit] initiated an investigation into cocaine trafficking in Saskatoon in April of 2011. The investigation involved the surveillance of Mr. Chu and number of his associates, the interception of their private communications, and the execution of search warrants in relation to their homes, vehicles, places of association and financial institutions. The surveillance continued until November 9, 2011, when Mr. Chu was arrested. [8] The Crown’s case against Mr. Chu is based on the activities of his associates, telephone intercepts revealing coded language consistent with drug trafficking and the link between blue bag that had been seen in Mr. Chu’s possession on one occasion, and was later found in the possession of known associate. The bag at that time was shown to contain cocaine. [9] As it turns out, when he testified, Mr. Chu’s defence was that he was not trafficking in cocaine, but he was trafficking in OxyContin and steroids and that all of the Crown’s surveillance was directed to the wrong drug in relation to him. He admitted that he had been trafficking in drugs and conspiring to do so, but that the drugs in question were OxyContin and steroids not cocaine. Indeed, four of the officers testified they believed that Mr. Chu was trafficking in steroids (as well as cocaine). [10] In the arguments made to the trial judge on his behalf, it was submitted that there was no direct evidence linking Mr. Chu to trafficking in cocaine or conspiring to traffic in cocaine. For example, the seizure of garbage over an extended period of time and the search of his home and possessions did not reveal any cocaine or cocaine residue. In search incident to arrest, the police discovered steroid kits and cell phones only. [11] The trial judge did not believe Mr. Chu that he trafficked in OxyContin and steroids only. On the basis of the circumstantial evidence, the trial judge drew the conclusion that Mr. Chu was guilty of the charges against him. III. Background to the Adjournment Request and Decision [12] As have indicated, the broad issue on this appeal is whether the trial judge’s refusal to adjourn the trial, or to take other steps to address Mr. Chu’s allegations of s. breach of the Charter, requires new trial. will now provide the background to this issue and analyze the trial judge’s reasons to explain my conclusion. A. What transpired over the weekend prior to the trial [13] The Special Enforcement Unit was not the only group of police officers investigating Mr. Chu and his associates. Another team of officers from the Integrated Proceeds of Crime Unit [Proceeds of Crime Unit] was also conducting an investigation into proceeds or assets that might be derived from Mr. Chu’s and his associates’ activities. Unfortunately, the Crown counsel responsible for prosecuting the within case were not informed that the Proceeds of Crime Unit was working on the same file or, more importantly, that it had amassed large quantity of data referring to Mr. Chu. [14] With the trial fixed for Monday, September 8, 2014, Crown counsel learned about the existence of the work of the Proceeds of Crime Unit, and the existence of second database, in the afternoon of Friday September 5, 2014, only. This revelation took the two Crown counsel to document entitled “Global Document Report” [Index], which is 176 pages long and contains approximately 1,900 entries. [15] The Index is an alphabetically listed document with such headings as “Account Information”, “Affidavits”, “Analysis”, “Application”, “Asset Description”, “Assets”, and continuing through to “Witness Statements”. The first page of the Index indicates its format: ABM DEPOSITS EXHIBIT 2011-0032 ITEM 713 Document #: 375 Task 96 ABM Deposits with backing documents from President’s Choice Financial for Christopher CHU, Account# 48616676 EXHIBIT 2011-00321TEM 715 Document #: 379 Task 96- ABM Deposits with backing documents from President’s Choice Financial for Christopher CHU, Account# 48616700 ACCCOUNT SUMMARY OF HOLDINGS INVESCO DUONG, MICHELLE Document #: 1923 2013/03/18 Task 232- Account Summary of Holdings from lnvesco Canada Ltd, account 15442748 for Michelle DUONG, and Affidavit for Solape ILORI. ACCOUNT TRANSACTION HISTORY CHU, CHRISTOPHER PANG Document #: 1941 2011/09/07 Task 121 Account activity for 764480054682 from 2011-09-01 to 2011-09-07 for Christopher Pang CHU. Document #: 1942 2011/09/16 Task 121 Account activity for 764480054682 from 2011-09-08 to 2011-09-14 for Christopher Pang CHU. Document #: 1943 2011/09/22 Task 121 Account activity for 764480054682 from 2011-09-15 to 2011-09-21 for Christopher Pang CHU. Document #: 1944 2011/10/03 Task 121 Account activity for 764480054682 from 2011-09-22 to 2011-09-30 for Christopher Pang CHU Document #: 1945 2011/10/11 Task 121 Account activity for 764480054682 from 2011-10-01 to 2011-10-05 for Christopher Pang CHU Document #: 1946 2011/10/17 Task 121 Account activity for 764480054682 from 2011-10-06 to 2011-10-13 for Christopher Pang CHU Document #: 1947 2011/10/31 Task 121 Account activity for 764480054682 from 2011-10-14 to 2011-10-31 for Christopher Pang CHU Document #: 1955 2011/11/09 Task 187 Account activity for 764480054682 from 2011-11-01 to 2011-11-09 for Christopher Pang CHU Document #: 1956 2011/11/29 Task 187 Account activity for 764480054682 from 2011-11-10 to 2011-11-29 for Christopher Pang CHU [16] It is common ground that an unknown quantity of the documents listed in the Index had not been previously disclosed, including, for example, the information pertaining to Mr. Chu shown above. [17] Crown counsel discovered the existence of the Proceeds of Crime Unit investigation and the Index when they were preparing Cst. Shurkin (one of their next week’s witnesses) to testify. The specific discovery was that Cst. Shurkin had notes in both the Special Enforcement Unit’s database and the newly-discovered database. Indeed, Crown counsel’s initial discovery revealed 120 pages of evidence relevant to the cross-examination of two upcoming witnesses. Crown counsel immediately provided these 120 pages to defence counsel on Friday afternoon at about 2:00 p.m. [18] After this initial release, Crown counsel began review of the Index. Based on that review, at 5:45 p.m. on Saturday, September 6, 2014, Crown counsel released 27 documents (plus the Index) in electronic form but, because the other documents individually listed in the Index had not been vetted, the Crown was not prepared to allow access to the balance of the 1,900 documents. One of the late-disclosed 27 documents was not actually reviewable by defence counsel until Monday morning because it could not be downloaded due to its file size. B. What transpired in court on Monday morning, the first day of the trial [19] After preliminary matters were dealt with, defence counsel made these remarks requesting an adjournment: [MS. FAGAN] But in any event, I’m in the awkward position, sir, of needing an adjournment this morning, and, frankly and I’ve discussed this with my friend it’s the sheer volume of the disclosure is such that I’m entitled to make the application to adjourn the entire month-long proceedings. Now, don’t know if I’m going to need to do that yet, but what am asking this Honourable Court to do is to allow me until Wednesday, possibly Thursday morning this Court will have my best efforts to review upon receipt of the disclosure from my friend, to review all of it and to and to proceed as scheduled at that point. That being said, sir, know that my friend has two witnesses here today who have travel plans. One is an RCMP officer, the other is civilian. Apparently both have flights booked. My friend has represented to me that what has been disclosed should have no impact on their testimony, should have no impact on what I’m doing. Now, [this is a] difficult representation for me to accept; however, have obtained instructions from my client to allow these two witnesses to testify this morning to accommodate their travel schedules, notwithstanding the fact that I’m certainly entitled to ask that they’re that they be called on different date after I’ve had chance to review full disclosure, but it’s they’re instructions that do have, sir, to accommodate in this regard. (Emphasis added, trial transcript at T6) [20] Crown counsel then explained to the Court what had transpired over the course of the weekend. He explained why they had provided the Index and the documents in these terms: My colleague, Ms. Kirsten and I, upon receipt of that index, then conducted our own review of that index to assess what, if any, further disclosure obligation was triggered as result of reviewing that index. We determined that there were 27 additional documents not previously disclosed in the combined forces database that would trigger our disclosure obligation. And, again, without describing each one in particular, for the most part, they they’re not central to the investigation, but nonetheless, on the question of could we say they’re clearly not relevant? No, we can’t stand up and say that. And so 26 of those documents were disclosed on Saturday. (Emphasis added, at T8) [21] When the trial judge questioned Crown counsel further, the following exchange occurred: THE COURT: And based upon your review of the index, you’ve identified some 27 of those documents as potentially relevant. MR. NEELY [Crown Counsel]: Correct. THE COURT: Although you don’t assess them (INDISCERNIBLE). MR. NEELY: Correct. So to go that’s an overview of where we’re at, think, in terms of the disclosure. was defence counsel one time in my life, and so understand the importance of looking, not just at what the Crown’s putting in, but what the Crown did not put in. THE COURT: M-hm. MR. NEELY: And for that reason, my friend’s request to be able to review that index, think, is submission with some justification. And haven’t told her I’m going to give her 1,900 documents. have told her that if she wants to come over to our conference room, I’m prepared to link up any document that she wants so that she can then assess whether or not I’m correct in saying it’s not relevant. THE COURT: In other words, follow-up on the hyperlinks. MR. NEELY: So some measured response to my friend’s request, think, is appropriate. I’ve indicated to her that have two witnesses with flight plans; civilian, Mark Florence, who is resident of Calgary, who has flight that leaves at the end of the afternoon to go back to Calgary because told him he would likely be the second witness in this trial and should be free to fly back tonight. (Emphasis added, at T9–T10) [22] As to the length of the adjournment, Mr. Neely was prepared to agree to short period of time only: As to whether we come back on Wednesday or Thursday, my preference would be that we come back on Wednesday. That will give my friend two full days to review an index that Ms. Kirsten and conducted our review on, basically in the course of one afternoon, namely, Friday, so that would submit practically speaking, that should give her plenty of opportunity to assess that index to assess whether or not she wishes to take issue with our conclusions about what is or isn’t disclosable. [23] The trial judge then granted the adjournment in these terms: and given Mr. Neely’s indication of willingness to accommodate to certain extent, am, after we hear the two witnesses, going to adjourn the matter. The difficulty is knowing precisely where we’ll be at Wednesday morning, but having said that, would like and I’m going to say we’re just adjourning to 9:45 Wednesday morning. If something particular arises, of course, Ms. Fagan, have absolute confidence that you will be raising that with me then. But I’m also alert to the fact that there may still be some time needed, but there’s also Friday afternoon coming up, and I’m extremely reluctant, given the time that has been scheduled for this trial the difficulty of some 54 witnesses and maintaining that schedule, noting as well as your representation as to the situation of your calendar in the future, I’m extremely reluctant to do other than to provide only such time as per to be necessary to deal with this matter. [24] The trial continued for several hours so that certain out-of-town witnesses could testify. It was then adjourned to Wednesday, September 10, 2014. C. What transpired after court recessed on Monday, September 8, 2014, and in court the following day [25] After court adjourned on Monday, September 8, 2014, Crown counsel invited defence counsel to the Crown offices where she was allowed access to computer, but she was required to show Crown counsel what she wished to review and they reviewed the document with her to see if it contained privileged information. After 20 minutes, defence counsel left the Crown’s office and immediately sent note to the trial judge objecting to the surveillance of her work and asking to see him at his earliest convenience. [26] On Tuesday, September 9, 2014, the Court reconvened at defence counsel’s request to make further submissions on the disclosure issue. She advised the court as follows: To bring the Court up to speed, you’ll recall that yesterday was invited to attend at my friend’s office to review the content of hyper-linked document. It’s 176-page document. In acceding to that offer, was under the impression that would be given privacy in reviewing said materials. When attended at my friend’s office yesterday afternoon to review these materials, it was in the company of both of my learned friends here. They would scroll the documents. would indicate which ones to stop on, which ones wanted to look at. And the Crown was essentially privy to every second that was looking at or otherwise assessing the importance of these documents. lasted about 20 minutes. Sir, in my respectful submission, with my adversary proverbially and literally looking over my shoulder as review disclosure, does not, in my respectful submission, permit for meaningful review within the confines of Section of the Charter. (Emphasis added, at T28) [27] Notwithstanding Crown counsel’s statement on Monday morning that he could not say the documents were “clearly not relevant”, Crown counsel filed brief of law on Tuesday morning asserting the following: (i) number of the documents in the Index compiled by the Proceeds of Crime Unit overlapped with documents in the Special Enforcement Unit database and had already been disclosed; and (ii) the balance of the Index dealt with “money laundering”. [28] Referring to Crown counsel’s submissions, the trial judge called upon defence counsel to provide some basis to say how what appeared to him to be financial records might assist her in her defence of Mr. Chu. Defence counsel’s response was that she could not give an answer without seeing the documents. She assured the court that she was not embarking on “fishing expedition”. The bottom line of her argument, however, was that relevance may be inferred by virtue of the fact that the Crown disclosed the existence of the documents and she would be boxing at shadows to provide any meaningful response. [29] In open court, the trial judge then conducted brief review of the documents, identifying number of them that he believed would have already been disclosed and number of other documents that were financial documents. He asked defence counsel how financial transactions of the accused could be relevant to his defence, particularly when the Crown had given its undertaking that it would not be relying upon any of the documents listed in the Index that had not already been disclosed. The trial judge said the following: And with respect to the financial documents relating to Mr. Chu, if the Crown’s not using them and then say to myself, how could financial transactions of Mr. Chu be relevant? And as the Crown’s brief says in paragraph 31: (As read) To establish breach of disclosure, the applicant must establish reasonable possibility that the undisclosed information could have been used in leading the Crown advancing defence or otherwise decision which could affect the conduct of the defence. That seems to be the cusp, and I’m and know I’ve asked you already, but wanted to come back to it to give you my, shall say, preliminary sense of this global document, to give you an opportunity to address it at focusing on you establishing reasonable possibility that could assist you because that’s what I’m having difficulty with, Ms. Fagan. (Emphasis added, at T43) [30] Defence counsel indicated that she was not going to “reveal the direction” in which the defence was headed by speculating on documents that she had not seen, saying she was “between rock and hard place”. She continued: But would be in dereliction of my duties as defence counsel when document is disclosed to me clearly, my friend’s not in the business of disclosing irrelevant documents. When document is disclosed to me with potentially thousands of pages of information and don’t request it and this this Honourable Court in v. Walker in 2012 indicated: (As read) Merely being insignificant evidence or significant in the Crown’s opinion or not destined to be evidence is insufficient for withholding disclosure. So for me to not bring this application on behalf of my client THE COURT: Well, understand that. MS. FAGAN: highly problematic in my respectful submission, sir. have nothing to add. She reminded the Court that at the last pretrial conference on May 7, 2014, the Crown had assured the case management judge that “disclosure was complete”. She advised the Court that she had been prepared to run the trial on the basis of that assurance. [31] The trial judge then indicated that he would adjourn to consider the matter further, strongly indicating that counsel should be prepared to recommence hearing witnesses the following day. [32] Following the hearing, defence counsel filed letter of objection, stating that, having not seen the documents, she should not be called upon to establish relevance, and asking that the trial be adjourned outright. That letter was filed on Tuesday, September 9, 2014. Ms. Fagan wrote as follows: In accordance with my client’s right to make full answer and defence and his right to fair trial as guaranteed by sections and 11(d) of the Charter would respectfully request that this Honourable Court review the impugned materials and render an informed judicial ruling in this regard. Further compounding the unfairness occasioned by my client is that of the late disclosure of 27 documents provided by the Crown (26 of which were provided on Saturday, September 6, 2014 at approximately 5:45 pm and the last of which was provided at approximately 10:00 pm on Sunday, September 7, 2014). The length of the adjournment granted by this Honourable Court has been insufficient to allow counsel for the Accused to properly review and synthesize this late disclosure (i.e. hundreds of pages). As consequence of the foregoing and for the reasons stated on the record if this matter proceeds to trial tomorrow my client will be unable to make full answer and defence. Further to my application for an adjournment made on September 8, 2014 please take notice that am seeking an adjournment of these proceedings in their entirety. (Bold emphasis in original) [33] Later that afternoon, the trial judge released written decision refusing to adjourn the trial. He said the trial would commence on Wednesday morning, but that he would adjourn at noon on Friday to permit defence counsel to continue to review the documents Friday afternoon and during the weekend. He then offered to hear an application on Monday to seek leave to recall any of the witnesses who had testified if she wished to further cross-examine any of them in light of what she might discover by any continuing review of the documents that she might undertake. [34] The balance of the Adjournment Decision is best reviewed as part of my analysis explaining why find the trial judge erred and why find new trial is warranted. IV. Whether the Judge Errored by Refusing to Adjourn the Trial A. Position of the parties [35] Before asserting they were not relevant, Mr. Chu argues that the Crown “did not conduct any meaningful review of the 1,900 documents” (AF at para 55) and merely relied on the description of each document contained in the Index. Mr. Chu argues that the trial judge’s failure to grant an adjournment denied him fair trial contrary to s. of the Charter and the ability to make full answer and defence contrary to s. 11(d) of the Charter. According to Mr. Chu, when the s. concerns were raised about his inability to review the documents privately, the Crown “reversed” its position and filed written materials indicating the documents were not relevant. He asserts that the trial judge erred by not finding breach of s. of the Charter and, as result, erred by not granting him an appropriate remedy to address the breach. [36] He also argues, apart from any consideration of s. 7, that the trial judge erred by failing to grant an adjournment in light of the fact that defence counsel was taken completely by surprise. In that regard, Mr. Chu also relies on Barrette The Queen, 1976 CanLII 180 (SCC), [1977] SCR 121 [Barrette], and Davis (1998), 1998 CanLII 18030 (NL CA), 159 Nfld PEIR 273 (NLCA) [Davis],[1] for the proposition that even where late disclosure does not result in Charter breach, declaring mistrial, excluding evidence or granting adjournments may all be appropriate remedies. [37] The Crown argues it always maintained that the withheld materials had already been disclosed previously or were irrelevant, noting that Stinchcombe, 1991 CanLII 45 (SCC), [1991] SCR 326 [Stinchcombe], imposes an obligation on the Crown to withhold such materials. According to the Crown, Mr. Chu failed to establish that the material was relevant, and even if it were relevant Mr. Chu cannot demonstrate that late and non-disclosure affected his right to make full answer and defence. [38] The Crown suggests that Mr. Chu’s position is similar to the position taken by trial counsel in Anderson, 2013 SKCA 92 (CanLII), 300 CCC (3d) 296 [Anderson]. In addition, because Mr. Chu did not take up the Crown’s offer to continue to review the documents over the course of the week following the Adjournment Decision, and make further application to the judge, he should be taken to have “abandoned” his application to continue to review the documentation, and he should be precluded from raising the issue before this Court. [39] Finally, the Crown argues, based on Dixon, 1998 CanLII 805 (SCC), [1998] SCR 244 [Dixon], and Taillefer, 2003 SCC 70 (CanLII), [2003] SCR 307 [Taillefer], that if this Court finds that the trial judge erred by not granting an adjournment, we can nonetheless consider whether the verdict can be sustained, and, according to the Crown, the proper application of those decisions should preclude intervention by this Court. B. Analysis [40] The right to disclosure is an element of the constitutional right to make full answer and defence encompassed within s. of the Charter. This right imposes duty upon the police and the Crown to disclose all relevant material pertaining to the investigation of the accused (see McNeil, 2009 SCC (CanLII), [2009] SCR 66). Since this right is grounded in the Charter, the request to adjourn the proceedings is request for remedy under s. 24(1) of the Charter for breaching the obligation to disclose. As such, the trial judge’s decision to refuse to adjourn the trial or grant any other remedy is an order made under s. 24(1). The standard of review to apply to decision under s. 24(1) of the Charter is deferential one (see Bellusci, 2012 SCC 44 (CanLII) at para 17, [2012] [41] Notwithstanding the deferential standard of review, find the trial judge misdirected himself in two ways. First, he erred in his statement of the obligation on the Crown when defence counsel asked for a review of the Crown’s refusal to disclose known documents. Second, he erred by classifying the Index as a Laporte inventory (see R v Laporte (1993), 1993 CanLII 9145 (SK CA), 84 CCC (3d) 343 (Sask CA) [Laporte]) and relying upon it alone to determine whether the Crown had met the burden on it to show the documents were clearly irrelevant. If the judge had not made these errors, he would have found that the Crown’s late disclosure (and non-disclosure) amounted to breach of s. for which remedy had to be granted. 1. The Crown’s obligation on review of disclosure [42] The trial judge provided an overview of the law that he was applying, beginning first with what he believed to be the relevant authorities: [14] The law is clear that once the Crown has justified non relevance in the first instance, it then falls to the defence to articulate basis on why the documents sought should be characterized as relevant and thus subject to disclosure. In R. v. Chaplin, 1995 CanLII 126 (SCC), [1995] S.C.R. 727, 96 C.C.C. (3d) 225, at paragraph 32, the Supreme Court of Canada said: [32] Apart from its practical necessity in advancing the debate to which refer above, the requirement that the defence provide basis for its demand for further production serves to preclude speculative, fanciful, disruptive, unmeritorious, obstructive and time-consuming disclosure requests. [15] While, as defence counsel puts it, the threshold for relevance is low, demonstration of relevance is nonetheless central. In R. v. Mah, 2001 ABQB 322 (CanLII), 288 A.R. 249, Sulyma J. said: [4] The requirement that the Defence provide basis for its demand for further production is, from reading of R. v. Chaplin (supra) applicable to any request and, by R. v. Starr (1998) 1998 CanLII 6760 (MB CA), 123 C.C.C. (3d) 145 (Man. C.A.); [1998] S.C.C.A. No. 141 (S.C.C.) applies where the Crown has declined to produce material on the basis of lack of relevance or privilege. This is not matter of onus, but rather an overriding principle that the Defence must provide basis for its demand for further production. As will be seen in consideration of the specific requests in this case, the Crown only contests that basis has not been provided in few of the matters raised. (Emphasis added, Adjournment Decision) [43] He reviewed Anderson and Laporte, concluding as follows: [23] am satisfied by my review of the Global Document Report [the Index], which classify as equivalent to Laporte Inventory, the submissions of Crown counsel with respect to the efforts they have undertaken to disclose the relevant documents therefrom and the failure of defence counsel to demonstrate reasonable possibility that the undisclosed documents could be used to meet the case for the Crown, advance defence or otherwise assist in making decision would affect the conduct of the defence that it is appropriate for me to exercise my discretion and to find that the Crown has met its disclosure obligations. The nature of the undisclosed documents are not, in my opinion, relevant to the issues in this trial. (Emphasis added) [44] In my respectful view, the trial judge erred by placing a burden on defence counsel to demonstrate the relevance of existing documents that the Crown refused to disclose. Chaplin, 1995 CanLII 126 (SCC), [1995] SCR 727 at para 32 [Chaplin], draws clear distinction between the “Procedure Where Existence of Information is Established” (paragraphs 25 to 29) and “Procedure Where Existence of Material is Disputed” (paragraphs 30 to 33). The trial judge referred to that part of Chaplin that addresses the Crown’s obligation when the defence alleges that other documents exist without knowing whether they actually are in existence. If Mah, 2001 ABQB 322 (CanLII), 288 AR 249, can be taken to speak to the issue of disclosure of existing documents, would not follow it. [45] In series of decisions leading up to Chaplin, the Supreme Court of Canada heard appeals intended to address the proper procedure where the existence of document or information is not in doubt but the Crown resists disclosure: Duarte, 1990 CanLII 150 (SCC), [1990] SCR 30; Dersch Canada (Attorney General), 1990 CanLII 3820 (SCC), [1990] SCR 1505; and Durette, 1994 CanLII 123 (SCC), [1994] SCR 469. These are wiretap cases, but in Chaplin, Sopinka J. relied upon these decisions to comment upon the “Catch 22” position of the defence when the Crown refuses to disclose information known to exist, but does not provide sufficient information to assess relevance: [27] In Dersch, supra, for example, the accuseds had been given notice that the Crown intended to adduce evidence obtained as result of Criminal Code wiretap authorizations made as part of the investigations into the charges being tried. The accuseds applied for an order for access to the contents of the sealed packets containing the affidavits in support of the authorizations, claiming that they were needed for them to make full answer and defence. In restoring the order of the trial judge to grant the application, this Court noted that the accuseds could not gain access to the affidavit unless they could prove the grounds for such access, and could not prove such grounds unless they had access. (Emphasis added) [46] In Chaplin, this Catch 22 prompted Sopinka J. to write the following: [25] In situations in which the existence of certain information has been identified, then the Crown must justify non-disclosure by demonstrating either that the information sought is beyond its control, or that it is clearly irrelevant or privileged. The trial judge must afford the Crown an opportunity to call evidence to justify such allegation of non-disclosure. As noted in R. v. Stinchcombe, supra, at p. 341: This may require not only submissions but the inspection of statements and other documents and indeed, in some cases, viva voce evidence. voir dire will frequently be the appropriate procedure in which to deal with these matters. (Emphasis added) [47] Shortly after the Supreme Court of Canada released Stinchcombe, and before Chaplin, this Court established procedure to review the Crown’s refusal to disclose in Laporte. According to Laporte, the Crown is required to produce “a written, itemized inventory of the information in its possession, identifying those items which it intends to disclose and those which it does not, and containing, in respect of the latter items, statement in each case of the basis upon which the Crown proposes to withhold disclosure” (at para 18). The Crown should describe each item “with sufficient detail that counsel will be enabled to make reasoned decision as to whether to seek disclosure or not”. [48] As Ottenbreit J.A. indicated in Anderson, the courts in Saskatchewan have continued to follow the procedure set out in Laporte. Although it is not mandatory and it is not inconsistent with Chaplin, it is tool to help determine whether the Crown has met its disclosure obligations (see paragraph 97 of Anderson). Ottenbreit J.A. confirmed, however, that the Crown “has to justify non-disclosure” (at para 96) in circumstances where the Crown refuses to disclose documents known to exist. [49] When the trial judge relied upon the failure of defence counsel to demonstrate reasonable possibility that the undisclosed documents were relevant, he erred. He was required to call upon the Crown to demonstrate that the documents were clearly irrelevant. The Crown’s solution at trial, which was to allow defence counsel to review the documents in their presence during the first weekend of the trial, does not affect this analysis. 2. Misdirection as to the status of the Index [50] As Chaplin holds, where the existence of document is not in doubt, the burden is on the Crown to bring itself within an exception to its obligation to disclose. In this case, that meant the Crown had to demonstrate that the documents were “clearly irrelevant”. There were several ways in which the Crown could have discharged that burden. Given that the Index was discovered two days before trial, Crown counsel chose to meet its obligation by producing the Index on the first day of trial, calling it Laporte inventory and providing little else. [51] Notwithstanding the Crown’s submissions, this is not case like Anderson where the trial judge concluded Crown counsel was “unable to satisfy the defence’s demands because [they] were such that they were incapable of being met” (trial transcript at T1006). Nonetheless, the analysis in Anderson is highly relevant to this appeal. Speaking for the Court in Anderson, Ottenbreit J.A. demonstrated that when counsel take divergent views of the Crown’s obligations it is necessary to return to first principles beginning with Stinchcombe. [52] In Stinchcombe, Sopinka J., writing for the Court, wrote at length regarding the Crown’s obligation to disclose all information (subject to certain named exceptions). The Crown “must err on the side of inclusion” but “it need not produce what is clearly irrelevant” (at 339). Sopinka J. made it clear that “The initial obligation to separate ‘the wheat from the chaff’ must therefore rest with Crown counsel”. [53] In Egger, 1993 CanLII 98 (SCC), [1993] SCR 451, Sopinka J. again made it clear that the burden is on the Crown to justify non-disclosure: The Crown’s disclosure obligation is subject to discretion, the burden of justifying the exercise of which lies on the Crown, to withhold information which is clearly irrelevant or the non-disclosure of which is required by the rules of privilege, or to delay the disclosure of information out of the necessity to protect witnesses or complete an investigation: Stinchcombe, supra, at pp. 335–36, 339–40. As was said in Stinchcombe, supra, at p. 340, “[i]nasmuch as disclosure of all relevant information is the general rule, the Crown must bring itself within an exception to that rule”. (Emphasis added, at 466) [54] As have indicated, this Court in Anderson held that Laporte inventory is not the only means by which the review process may begin, but in the case at bar, the Crown put forward the Index, asserting that it was Laporte inventory and urged the Court to accept it as such. [55] In my respectful view, the Index is not a Laporte inventory. Quite simply, the Index was prepared for a different purpose. Calling the Index a Laporte inventory was a means to try to salvage the trial dates, but the Index does not provide “sufficient detail that counsel will be enabled to make a reasoned decision as to whether to seek disclosure”. It does not indicate the basis upon which disclosure is resisted. This is not what the Supreme Court of Canada had in mind when it imposed an obligation on the Crown to disclose all information, excluding that which is “clearly irrelevant”. [56] The trial judge considered the Index in some detail, but in my view, he erred in describing the Index: [19] Crown counsel advises and defence counsel does not dispute that many of the approximate 1,900 documents in this database are also found in the CFSEU [Special Enforcement Unit] database and thus are among the documents that have been previously disclosed in these proceedings. Examples of such documents include police investigation and surveillance reports, affidavits and exhibits on various applications for court orders, search warrants, production orders, restraint and management orders, CPIC documents with respect to various individuals and the like. [20] Defence counsel confirms she does not seek duplicate disclosure. Crown counsel has specifically represented to the Court and to defence counsel that they will not be seeking to use in these proceedings any document listed in the IPOC Global Document Report [the Index] except to the extent that such documents have already been disclosed. [21] The balance of the IPOC database contains documents that are records of financial transactions, banking transaction, income tax records, information relating to assets owned, acquired or disposed of, tracing of funds and assets, ISC records, SGI customer profiles, corporate registry searches, and correspondence relating to financial matters or investigations involving significant number of individuals including the accused. (Emphasis added, Adjournment Decision) [57] While it was common ground that there were documents in common between the two databases, the difficulty was in knowing the numbers and in knowing where the overlap lay. The trial judge made the assumption that all that was left was the financial information. Even assuming for the moment that financial records of known associates in conspiracy trial are automatically “clearly irrelevant” without examination, the fact is, as Mr. Chu’s counsel on appeal demonstrated, there are other documents not disclosed and not common to both investigations, and which were not financial documents. [58] Comparing the list of documents that Crown counsel disclosed during the weekend prior to the trial with some of the listed items on the Index is one way to illustrate this point. The 27 documents that were released on Saturday, September 6, 2014, are listed in an appendix to the Crown’s factum on appeal. That list is as follows (pages 219 to 220): Description of Late Disclosure Documents 1. Doc 1810 (6 pgs) financial analysis of banking records by Cory Oliver. 2. Doc 1277 (19 pgs) emails between Cst Hunter and Cpl Black re: getting copies of wallet content of Youlong Thai’s wallet seized on Drumheller, AB stop. 3. Doc 1745 (3 pgs) email between Cst Hunter to Cst Frisk. 4. Doc 1746 (2 pgs) email between Cst Frisk to Cst Hunter 5. Doc 1811 (2 pgs) emails between Cst Hunter to Cst Ireland 6. Doc 1812 (3 pgs) emails between Cst Hunter to Cst Ireland 7. Doc 1813 (2 pgs) emails between Cst Hunter to Cst Ireland 8. Doc 1814 (3 pgs) emails between Cst Hunter to Cst Ireland 9. Doc 1816 (2 pgs) emails between Cst Hunter to Cst Ireland 10. Doc 1771 (2 pgs) email Cpl Kerr to Cst Hunter describing his involvement Oct events 11. Doc 1731 (2 pgs) email Cpl Kerr to Cst Hunter giving Bennet Tse’s Vancouver address. 12. Doc 1283 (5 pgs) Exhibit Ledger for 122 Galbraith Crescent 13. Doc 1415 (2 pgs) Exhibit Ledger for 45th Street warehouse. 14. Doc 1161 (53 pgs) ITO for 122 Galbraith Crescent 15. Doc 1167 (53 pgs) ITO for 45th Street warehouse 16. Doc 1164 (53 pgs) ITO for 805 Circle Drive 17. Doc 1679 (6 pgs) SIU concluding investigation report as file turned over to CFSEU. Authored by Jan Lucier. 18. Doc 1671 (10 pgs) Offline Information Services Corporation (ISC) check 19. Doc 1587 (510 pgs) Cst. Amy Hunter’s handwritten notes 20. Doc 673 (2 pgs) PROS Reports List re: Thai (Drumheller) 21. Doc 1282 (14 pgs) Report to Justice for 122 Galbraith Crescent 22. Doc 1144 (10 pgs) Report to Justice for 122 Galbraith Crescent 23. Doc 1347 (4 pgs) Report to Justice for 45th Street warehouse 24. Doc 1518 (4 pgs) Report to Justice for 805 Circle Drive 25. Doc 1162 (3 pgs) Search Warrant for 122 Galbraith Crescent 26. Doc 1168 (3 pgs) Search Warrant for 45th Street warehouse 27. Doc 1165 (3 pgs) Search Warrant for 805 Circle Drive (Box emphasis added, compare below) [59] Each of the documents in the list above can be found as an entry in the Index but, in the Index, the number of pages is not shown. For example, the following appears in the Index under the heading “Member Notes” and can be found on pages 165–166 of the Crown factum: MEMBER NOTES HICKS, KYLA CST Document #: 1826 2011/08/18 Task Member Notes of Cst Kyla HICKS HUNTER, AMY CST Document #: 1587 2011/05/30 Task 171 Member Notes of Cst Amy HUNTER Document #: 1755 2011/11/08 Task 211 Member Notes of Cst Amy HUNTER regarding suspicious banking transaction made by Joanne HO and Blane MCDONALD at the Credit Union in Watrous, SK KERR, JASON CPL Document #: 1754 Task 210 Member Notes of Cpl Jason KERR regarding inquires made to construction companies involved in work at 1014 Ledingham LN, Saskatoon, SK Document #: 1346 2012/01/09 Task 171 Member Notes of Cpl Jason KERR LERAT, MIKE CPL Document #: 1694 2011/08/03 Task Member Notes of Cpl Mike LERAT Document #: 1734 2011/08/04 Task Member Notes of Cpl Mike LERAT Document #: 1822 2011/08/17 Task Member Notes of Cpl Mike LERAT Document #: 1823 2011/10/06 Task Member Notes of Cpl Mike LERAT PIPRELL, AARON CST Document #: 1827 2011/08/30 Task Member Notes of Cst Aaron PI PRELL SHUKIN, DARCY SGT Document #: 1318 2011/06/08 Task 171 Member Notes of Sgt Darcy SHUKIN TAYLOR, BRENT SGT Document #: 1248 2012/01/09 Task 171- Member Notes of Sgt Brent TAYLOR WINTERMUTE, ROBIN SGT Document #: 1825 2011/09/12 Task Member Notes of Sgt Robin WINTERMUTE (Box emphasis added, compare above) [60] Again, with respect to the above, none of the Member Notes, other than those of Cst. Hunter, were disclosed and it was only after production that defence counsel learned that this document spanned 510 pages (see the boxed entries above). [61] Another way to illustrate why the Index does not meet the requirements of Laporte inventory is to consider some of the individual items in greater detail apart from any comparison with the disclosed list. During the hearing of the appeal, Mr. Chu’s counsel took us through the Index. He invited us to look at the description of approximately 57 documents. This is representative sample of those documents (see AF at 98–103): GENERAL WARRANT AND ASSISTANCE ORDER RBC 2011-09-08 Document #: 1564 2011/09/08 Task 122 General Warrant and Assistance Order on the oath of Cst Amy HUNTER regarding the covert entry to examine the contents of the safety deposit box of Youlong THAI located at 154 1st AVE S, Saskatoon, SK (RBC) TORONTO-DOMINION BANK 2011-11-02 Document #: 1056 2011/11/02 Task 167 General Warrant and Assistance Order on the oath of Cst Amy Hunter regarding the banking/financial institution records and data for Youlong THAI, Christopher Pang CHU, Christopher PANG, and 101146259 Sask Ltd GENERAL WARRANT, ASSISTANCE ORDER SEALING ORDER CIBC 2011-09-01 Document #: 1352 2011/09/01 Tasks 114, 116, 118 and 120 General Warrant, Assistance Order and Sealing Order, on the oath of Cst Amy HUNTER, signed by Judge Q.D. AGNEW, PCJ regarding banking/financial institution records and data from the Canadian Imperial Bank of Commerce for Christopher pang CHU IDENTIFICATION CHU, CHRISTOPHER PANG Document #: 1800 Task Photocopy of personal identification of Christopher Pang CHU provided by CFSEU to CST Amy HUNTER INFORMATION TO OBTAIN RBC, TD, CIBC SCOTIABANK 2011-09-01 Document #: 1348 2011/09/01 Tasks 114, 116, 118 and 120 Information to Obtain General Warrant, Assistance Order and Sealing Order on the oath of Cst Amy HUNTER regarding any banking/financial institution records and data for Youlong THAI and Kari-Lynne KEDDIE, 101185813 Saskatchewan Ltd, Thien NGUYEN, Chris PANG and Christopher Pang CHU. RBC, TD, CIBC ET AL 2011-11-02 Document #: 1055 2011/11/02 Task 167, 168, 169, 170, 172 and 173 Information to obtain General Warrant, Assistance Order and Sealing Order on the oath of Cst Amy HUNTER regarding banking/financial institution records and data for Youlong THAI, Christopher Pang CHU, Christopher PANG, and 101146259 Sask Ltd INTERNET QUERY BEGINNERS STERIOD [sic] USE Document #: 1769 2011/11/21 Task 157 162 Beginners steroid use Internet Query on website www.muscletalk.co.uk HOW TO TAKE ANABOLIC STEROIDS Document #: 1770 2011/11/21 Task 157 162 How to take anabolic steroids Internet Query on website www.steriods-pharma.com [62] These documents may be found in the context of new trial to be irrelevant, but on their face it is not possible to make such determination. Mr. Chu was charged with conspiring to traffic in cocaine and possessing cocaine. His defence turned out to be that he was not guilty of either of those crimes but that he was possessing and trafficking OxyContin and steroids. It would seem to me that banking information linking Mr. Chu and his associates could not be classified as “clearly irrelevant” without more. On their face, any of the documents associated with other drugs would also not be clearly irrelevant. [63] Presenting the Index on the first day of trial, and expecting defence counsel to determine not only what is new but also to determine facial relevance of what remains, without even direct and unsupervised access to the hyperlinked documents, would be an impossible task for defence counsel and therein lies the real problem. Crown counsel, defence counsel and the Court were in dilemma. Given the timing and quantity of the disclosure, everything was telescoped down to short bridge of time, leaving few options. The trial judge is to be commended for wanting to make sure the trial dates were not lost, but what had transpired meant that an adjournment had to be granted or other steps had to be taken to attempt to provide remedy under s. 7. In another case, with more time, Crown counsel might have been able to work with document like the Index. In Anderson, for example, it appears that document similar to the Index formed the basis for disclosure, but the parties spent upwards of six days in hearings over several months canvassing several disclosure motions and ultimately resulting in additional disclosure being made. [64] As Ottenbreit J.A. indicated in Anderson, the review exercise when the Crown refuses to disclose known documents is complex one: [64] As practical matter, during review of the Crown’s disclosure obligations prior to trial or during trial, trial judge must look at myriad of relevant factors touching on whether the Crown has fulfilled its obligation in good faith and in timely manner. Without providing an exhaustive list, this could include looking at the essential elements of the offence, the complexity of the investigation, the volume and type of disclosure already provided, what the Crown refuses or is unable to provide, preliminary assessment of how the further disclosure sought is relevant in the sense of assisting the accused, whether it is part of the case to meet, the interaction between the Crown and defence, the behaviour of the Crown and defence, the timing of disclosure and the nature of the defence requests for disclosure. The interplay of these factors is case specific. [65] Referring to the non-exhaustive list mentioned by Ottenbreit J.A. in Anderson, the investigation in the within case was complex so much so that Crown counsel was not even aware of the parallel police investigation. The timing of the disclosure could not have been more problematic. It is clear that defence counsel was not being obstreperous. She did not go fishing for additional disclosure. She accepted the Crown’s assurance that disclosure had been complete four months earlier and was prepared to proceed to trial on what she had. [66] Thus, I conclude that the trial judge erred by (i) misapplying the test in Chaplin, (ii) imposing a burden on the defence, and (iii) concluding that the Crown had met its disclosure obligations by providing the Index. In light of the Crown’s late and non-disclosure, the judge erred by not granting an adequate remedy to address the s. 7 breach. 3. Effect of Dixon and Taillefer [67] Notwithstanding any error on the part of the judge to find s. breach or to grant remedy in relation to it, the Crown asks this Court to sustain the result on the basis that Mr. Chu was nonetheless able to make full answer and defence having regard for the principles set down in Dixon and Taillefer. Illes, 2008 SCC 57 (CanLII), [2008] SCR 134 [Illes], is also relevant. In Illes, the accused learned of an additional statement after trial, which became the subject of fresh evidence application on appeal. LeBel and Fish JJ. for the majority wrote the following: [24] With respect to the fresh evidence not available to the defence at trial due to the Crown’s failure to disclose, new trial is the appropriate remedy under s. 24(1) of the Canadian Charter of Rights and Freedoms if the accused can show that his right to make full answer and defence was thereby violated. In order to discharge this burden, the accused can show either “that there is reasonable possibility that the non-disclosure affected the outcome at trial” or that it affected “the overall fairness of the trial process” (R. v. Dixon, 1998 CanLII 805 (SCC), [1998] S.C.R. 244, at para. 34 (emphasis in original)). Understandably, given the volume of material, there is no fresh evidence application in this Court, but this fact has consequences for the analysis of the Dixon–Taillefer issue. [68] As the Supreme Court of Canada made clear in Dixon, different principles and standards apply in determining whether disclosure should be made before conviction and in determining the effect of failure to disclose after conviction: [31] For instance, where the undisclosed material is available for review at trial, the presiding judge will evaluate it in relation to the Stinchcombe threshold to determine whether the Crown breached its obligation to disclose by withholding the material. If it has, an order for production or perhaps an adjournment will be the appropriate remedy. Obviously, these remedies are no longer available after conviction. At this stage, an appellate court must determine not only whether the undisclosed information meets the Stinchcombe threshold, but also whether the Crown’s failure to disclose impaired the accused’s right to make full answer and defence. Where an appellate court finds that the right to make full answer and defence was breached by the Crown’s failure to disclose, the appropriate remedy will depend on the extent to which the right was impaired. Where, as here, the accused was tried before judge alone, the judge has provided thorough reasons for the decision, and the undisclosed evidenced is available for review, an appellate court is particularly well placed to assess the impact of the failure to disclose on the accused’s ability to make full answer and defence at trial. (Emphasis added) [69] Based on Dixon, where an appellant’s ground of appeal is based on failure to disclose, it is open to an appellate court to decide whether the undisclosed information meets the Stinchcombe threshold and, further, whether the Crown’s failure to disclose impairs the accused’s right to make full answer and defence. Both of these questions, however, require the appellate Court to examine and review the undisclosed information to determine the impact it might have had on the decision to convict. [70] In this case, however, we are in the same position as the trial judge: we are left looking at the Index to determine whether the Crown has met its obligation to disclose all documents, except clearly irrelevant ones. Thus, it is still not possible for the Court to determine which of the documents listed in the Index have already been disclosed and no further description of the documents has been provided. In my view, having regard for the burden on the Crown when it refuses to disclose documents that are known to exist, it is not possible to answer that question, which means there must be new trial. [71] In light of the power that Dixon and Taillefer speak to, it may also have been open to the trial judge to address defence counsel’s concerns about the lack of privacy in reviewing the Index and to grant longer adjournment. It may even have been appropriate for the trial judge to refuse the adjournment and, having regard for the standard of review indicated in Dixon, to direct Crown counsel to prepare more detailed list while the trial continued and to make further rulings as any subsequently disclosed information might require. [72] Even in the face of the trial judge’s decision refusing an adjournment, and without any further directions from the judge, there may have been other ways for the matter to have been handled. Crown counsel might have continued to review the documents listed in the Index, clearly identifying what had already been disclosed and vetting the balance of the documents, including preparing summary of them if it were determined that they did not meet the Stinchcombe test. The trial continued over some 18 days intermittently over one-month period. [73] These options, however, are not before this Court. After receiving the Adjournment Decision, which issued on September 9, 2014, Crown counsel was, of course, entitled to do nothing further, but it does mean that this Court cannot rely on Dixon or Taillefer to perform the trial judge’s function. This Court’s remedy for the s. Charter breach can only be new trial. C. Authority apart from considerations of s. and s. 24(1) of the Charter to review the trial judge’s decision refusing the adjournment [74] If the Court were to find that the trial judge did not err by failing to grant an adequate remedy under s. 24(1) for the infringement, Mr. Chu’s counsel, on appeal, asked the Court to find that the trial judge erred by not granting an adjournment apart from any consideration of s. of the Charter. In the event that am in error with respect to my conclusion that the Crown’s late and non-disclosure required more adequate remedy under s. 24(1), will address this alternate basis for the same result. [75] As support for his position, Mr. Chu’s counsel relies on Barrette and Davis. The majority in Barrette held that decision on an application for an adjournment is discretionary decision that may be reviewed on appeal if it is based on reasons that are not well-founded in law. The Barrette majority described this right of review as “especially wide when the consequence of the exercise of discretion is that someone is deprived of his rights, whether in criminal or in civil proceedings” (at 125). Barrette, of course, is pre-Charter decision. [76] In Davis, the Court of Appeal considered whether the defendant had been entitled to stay of proceedings “on the basis of inadequate and untimely disclosure by the Crown of an intention to call expert evidence respecting post-traumatic stress syndrome in sexual assault cases and respecting toxicology”. The Court recognized, following Stinchcombe, “that the obligation to disclose is derived from the rights of an accused to fair trial and to make full answer and defence which are now constitutionalized by virtue of ss. and 11(d)” (at para 9). The Court of Appeal noted, citing O’Connor, 1995 CanLII 51 (SCC), [1995] SCR 411 [O’Connor], that as there is no standalone right to disclosure found in the Charter, not every failure to make disclosure will necessarily involve Charter breach or entitle an accused to s. 24 remedy. According to the Supreme Court, the basic remedy for improper non-disclosure is an order for disclosure (see O’Connor at para 11). [77] The Court of Appeal commented that even where there has been no breach of the Charter in respect of disclosure, “the court nevertheless has an obligation to ensure that the accused’s right to fair trial is preserved and in that connection the court must always consider the impact and the manner and timing that the receipt of Crown evidence might have on the ability of the accused to receive fair trial” (Davis at para 12). [78] The Court in Davis noted that crafting remedy for Charter breach involves consideration of what is appropriate and just and that “an adjournment will often be the only remedy necessary to deal with an issue of late disclosure” (at para 22). However, the Court also noted that adjournments are the sort of thing that “even without Charter breach, could be made, in the interests of trial fairness whenever the submission of untimely evidence takes the defence by surprise” (at para 21). [79] In O’Connor, L’Heureux-Dubé J. analyzed the Court of Appeal’s conclusion that the jurisprudence “favoured maintaining distinction between the Charter and the common law doctrine of abuse of process”. Justice L’Heureux-Dubé found at paragraph 60 that individual rights to trial fairness and the general reputation of the criminal justice system were fundamental concerns that underlie both the common law doctrine of abuse of process and the Charter. At paragraph 69, she commented as follows: [69] Remedies less drastic than stay of proceedings are of course available under s. 24(1) in situations where the “clearest of cases” threshold is not met but where it is proved, on balance of probabilities, that s. has been violated. In this respect the Charter regime is more flexible than the common law doctrine of abuse of process. However, this is not reason to retain separate common law regime. It is important to recognize that the Charter has now put into judges’ hands scalpel instead of an axe tool that may fashion, more carefully than ever, solutions taking into account the sometimes complementary and sometimes opposing concerns of fairness to the individual, societal interests, and the integrity of the judicial system. [80] Ultimately, L’Heureux-Dubé J. concluded that “the only instances in which there may be need to maintain any type of distinction between the two regimes will be those instances in which the Charter, for some reason, does not apply yet where the circumstances nevertheless point to an abuse of the court’s process” (at para 70). [81] Insofar as this second “abuse of process” path remains open where breach of s. is not found, it may be another path permitting the review of discretionary decision as the Court in Davis recognized. recognize that the articulation of second path is somewhat circuitous in that the law underlying an adjournment decision and the impact on trial fairness are both captured by the same underlying facts. Nonetheless, note that this Court continued to acknowledge the authority of Barrette in the post-Charter era: Ironchild (1984), 1984 CanLII 2666 (SK CA), 30 Sask 269 (CA); and see Rak (1999), 1999 CanLII 12229 (SK CA), 172 Sask 301 at para (CA). In Ironchild, Tallis J.A. stated that the right of review “must be weighed conscientiously and delicately along with the public interest in the orderly administration of justice” (at para 13). [82] On this basis, would be prepared to hold that the trial judge’s decision to refuse an adjournment or provide another adequate remedy would, in this case, amount to an abuse of process necessitating new trial. Having regard for the following (i) the Crown’s assurance that disclosure was complete on May 7, 2014, (ii) the timing and volume of disclosure, (iii) the seriousness of the charges, (vi) the requirements of proper review procedure, and (v) the co-operative approach of defence counsel the trial judge erred by not adjourning the trial outright or for sufficient time for both Crown and defence counsel to devise procedure to address the revelation as to the existence of the second database. V. Conclusion [83] The conviction is set aside and a new trial ordered. “Jackson J.A.” Jackson J.A. concur. “Lane J.A.” concur. “Jackson J.A.” for Ottenbreit J.A. [1] An appeal to the Supreme Court of Canada was dismissed in 1999 CanLII 638 (SCC), [1999] SCR 759, but the Supreme Court did not comment on the disclosure issue or the comments of the Newfoundland Court of Appeal with respect to that issue.

HELD: The appeal was allowed. The conviction was set aside and a new trial ordered. The court found that the trial judge erred by misapplying the test in Chaplin. He wrongly placed the burden on the defence to demonstrate the relevance of existing documents that the Crown refused to disclose. The court found that in light of the Crown’s late disclosure and non-disclosure, the trial judge erred by not a granting an adequate remedy to address the breach of s. 7 of the Charter by the Crown. In his decision regarding the adjournment request, the trial judge also erred in describing the index in this case as a Laporte inventory, a finding that allowed him to conclude that the Crown had met its disclosure obligations. The index was not a Laporte inventory as it was prepared for a different purpose and did not provide sufficient detail to permit the defence to decide whether to seek disclosure.

d_2016skca156.txt

IN THE SUPREME COURT OF NOVA SCOTIA Citation: Jones v. LeBlanc, 2006 NSSC 131 Date: 20060426 Docket: S. P. No. 191874 Registry: Pictou Between: Deborah Jones, Reginald Brightman, Alicia Hartling, an infant, through her Litigation Guardian Carol Hartling, John Hartling, Diane Hartling, Edward Hartling, James Lawrence and Sharon Lawrence v. Joseph Gerard LeBlanc and Wawanesa Mutual Insurance Company Defendants Judge: The Honourable Justice Charles E. Haliburton Heard: April 4, 2006, in New Glasgow, Nova Scotia Written Decision: April 26, 2006 Counsel: Jamie MacGillilvray, for the Plaintiffs John Kulik, for the Facility Association for and on behalf of the Defendant LeBlanc Robert M. Purdy, Q. C. for the Defendant, Wawanesa Mutual Insurance Company By the Court: [1] All issues in this proceeding have been settled except to determine liability between Wawanesa Mutual Insurance Company and the Facility Association for psychological injury suffered by Alicia Hartling. [2] An Agreed Statement of Facts has been filed by the parties and now set it forth: 1. This action arises out of a motor vehicle / bicycle accident whichoccurred on June 27, 2002. The late Jonathan Hartling was driving his bicycle on the road when he was struck from behind and killed. 2. The Plaintiff Alicia Hartling was Jonathan Hartling’s cousin. She was present, although she did not suffer any physical injuries and was not directly involved in the accident, she commenced this action to advance a claim for nervous shock. It is admitted that the Plaintiff is entitled to recover damages for nervous shock from the Defendant LeBlanc. 3. Since the Defendant LeBlanc was an uninsured motorist at the time of the accident, the Plaintiff’s claim against LeBlanc is being defended by the Facility Association which maintains the Uninsured Motorist Claims Fund for Nova Scotia. 4. The Plaintiff claims against the Defendant Wawanesa Mutual Insurance Company pursuant to the Section D Uninsured Automobile Coverage provisions of policy number 0875153 issued by Wawanesa to Reginald Brightman, the step-father of the Late Jonathan Hartling. 5. Jonathan Hartling was “person insured under the contract”. 6. Alicia Hartling was neither resident of nor dependant of the Brightman household, therefore, it is agreed that the Plaintiff Alicia was not “person insured under the contract”. 7. The Plaintiff’s claim has been settled between the parties. The trial of this matter was held at New Glasgow on April 4th, 2006 for argument only. The Plaintiff did not participate and has no interest of the outcome, the Facility Association and Wawanesa having together settled her claim. psychological report on file discloses another fact that might have affected Alicia’s emotional well being. It says “Alicia recounts that she saw Jonathan’s bike flying past her and that she stopped and “looked everywhere for Jonathan but could not find him”. In panic, she rode down to her house to find her father and then they both returned to the accident site to look for Jonathan. Jonathan was found about 100 feet away from where he was hit. It was subsequently determined he was dead.” ISSUE [3] Do the Section D provisions of the M/V Insurance policy issued by Wawanesa extend to protect Alicia Hartling, who suffered psychic injury as a result of the “injury or death” of Jonathan Hartling, an “insured person” under the policy? [4] It is Section 139 of the Insurance Act, R.S.N.S. 1989, c. 231 that mandates what is known as “Section D” coverage in all M/V insurance contracts. Disposing of the issue between the two Insurers requires an interpretation of that section and an analysis or characterization of the claim. It is common ground that if Ms. Hartling had suffered physical injury as direct result of the negligence of the uninsured LeBlanc then the Facility Association would have been obliged to respond. Unlike her cousin Jonathan, she is not “person insured under the contract” and hence her physical injuries and the claim arising therefrom would not be actionable under the Wawanesa policy. [5] It is submitted on behalf of Wawanesa that Section 139 (2) (b) provides for recovery against the Section Insurer in the present circumstances by only that class of person’s who are entitled to recover under the Fatal Injuries Act (that is close relatives). It is those persons who are entitled to recover damages for “the death of person insured”. Such claim, it is argued, arises through the death of Jonathan Hartling, the insured person; whereas the claim advanced by Alicia Hartling “is an independent tort” and must be founded upon different basis. As put by Wawanesa’s counsel “she was not “person insured under the contract”. Wawanesa’s Section Coverage does not extend to her claim.” [6] Mr. Kulik, for the Facility Association has argued that plaintiff (next of kin) should be obliged to sue only one defendant to obtain full recovery. It should not be made necessary to sue Wawanesa under the Fatal Injuries Act and also to sue the Facility Association to recover for mental shock. This proposition has some appeal in terms of efficiency and economy of expense; and whether the legislation intended to make it necessary to sue two defendants. It is blunted however by the fact that if Alicia had been physically injured then the Facility Association would be the proper Defendant. Both counsel agree in that. If accept that her action for emotional injury is properly taken against Wawanesa then if she had at the same time suffered physical injury, there would again be duplication; one action against Wawanesa for emotional trauma and the other against the Facility Association for physical injuries. [7] The Insurance Act regulates the insurance coverage which is to be provided by insurers licensed to sell automobile insurance in Nova Scotia. Because it is fact of life that loss and injury occurs as the result of the operation of uninsured motor vehicles or drivers, the act establishes scheme for the protection of persons who suffer loss caused by uninsured vehicles. Section 106 of the Act requires that “every insurer carrying on the business of automobile insurance in the province shall be participant” in “The Facility Association Plan”. As Section 106 (1A) says the association will provide “payment with respect to claims for damages made by persons who are not insured under contract within the meaning of Section 139 and who have no other insurance”. [8] Automobile insurance is defined in Section 104 (c) 104 In this Part, (c) “automobile insurance” means insurance (i) against liability arising out of (A) bodily injury to or death of person, (B) loss of or damage to property caused by an automobile or the use or operation thereof. The section defines insured: 104 (f) “insured” means person insured by contract whether named or not, and includes any person who is stated in the contract to be entitled to benefits payable under insurance referred to in Section 140, whether or not the person is described therein as an insured person; (h) “motor vehicle liability policy” means policy, or that part of policy, evidencing contract insuring (ii) person who is not the owner or driver thereof where the automobile is being used or operated by his employee or agent or any other person on his behalf, against liability arising out of bodily injury to or the death or person or loss or damage to property caused by an automobile or the use or operation thereof; (emphasis added) 139 (1) (b) “person insured under contract” means (iii) in respect to claim for bodily injury or death, (B) the insured named in the contract and, if residing in the same dwelling premises as the insured named in th econtract, the insured’s spouse or common-law partner and any dependent relative 139 (2) Every contract evidenced by motor vehicle liability policy shall provide for payment by the insurer of all sums that (a) person insured under the contract is legally entitled to recover from the owner or driver of an uninsured automobile or unidentified automobile as damages for bodily injuries resulting from an accident involving an automobile; (b) person is legally entitled to recover from the owner or driver of an uninsured automobile or unidentified automobile as damages for bodily injury to or the death of person insured under the contract resulting from an accident involving an automobile; and (c) person insured under the contract is legally entitled to recover from the identified owner or driver of an uninsured automobile as damages for accidental damage to the insured automobile or its contents, or to both the insured automobile and its contents, resulting from an accident involving an automobile,subject to the terms, conditions, provisions, exclusions and limits prescribed by regulation. [9] It is of particular note that Section 139 (2) in subsections (a) and (c) refers to “a person insured” while Sub Section (b) encompasses persons outside that restricted class and refers simply to “a person”. However, the entitlement of that person is restricted to recovering damages suffered as result of the “bodily injury or death of person insured”. It is common ground that had Alicia Hartling suffered physical injury as result of the negligence of the Defendant LeBlanc, then it would be the Facility Association who would have to pay. [10] The parties are agreed that it is under this section 139 (2) (b) that family members may claim for damages as result of their entitlement as provided in the Fatal Injuries Act, R. S., 1989, 163. The Fatal Injuries Act entitles certain close family members; father, mother, grandfather, grandmother, step-father, step-mother, spouse, child, etc. to recover “damages as defined in Section (2) of the act including generally out of pocket expenses, but also “an amount to compensate for the loss of guidance, care and companionship expected (to be received) from the deceased if the death had not occurred”. [11] Section 139 (2)(b) would also apply, think, where the injury of “person insured” results in obligations to pay for nursing or rehabilitation and the expense or loss of income to “a person” who is responsible for the well being of the injured party. [12] It is instructive and in keeping with the case law that claim for damages surviving under the Fatal Injuries Act does not include claim for emotional distress or psychological injury which might result from the loss of loved one. Thus, it is in this context that Wawanesa takes the position that; while “a person insured” under Section 139 (2) (a) can recover for their own bodily injury including any psychological complications which they suffer as result of their own involvement in an accident; such is not the case under 139 (2)(b) where the claim of the “person” for emotional distress must be piggybacked on the bodily injury or death of the “person insured”. [13] Perhaps to sharpen the focus and as noted earlier, the Facility Association concedes that if Alicia Hartling had been physically injured as result of LeBlanc’s negligence, the Association would be liable to pay. But, since she was emotionally damaged- as result of the “bodily injury or death” of the “person insured”, then she is entitled to recover from Wawanesa. CONCLUSION: [14] Upon consideration I conclude that such is not the result. I do so because the emotional harm suffered by Alicia Hartling is simply too remote from the obligations contemplated by the contracting parties. [15] find it helpful to consider other possible scenarios where similar claim might be made. Consider for instance; circumstance where an infant, belonging to an “insured” household, playing in driveway is injured or killed by an uninsured vehicle, and neighbour, who is not person insured, watching the event suffers emotional trauma; or the same circumstance where the mother watches that event; think it could not be successfully argued that the neighbour is entitled to recover for emotional shock arising from the negligent act of this uninsured driver (perhaps salesman) except perhaps from the Facility Association. The mother, an insured person, as member of the injured household would be able to recover from their insurer, claiming Section Benefits. [16] The magnitude of the potential risk which the Facility Association would cast on the insurer would be dramatically apparent were an uninsured vehicle to crash into bus shelter housing 10 or 20 persons awaiting bus. If only one of those persons was injured or killed and happened to be “a person insured”, then the logical extension of the Facility argument would be that all the others, if they could prove emotional or psychological damage, would have valid Section claim. The impossibility of contemplating the extent of the potential liability constitutes valid reason for not distinguishing emotional damage resulting from such an accident to that of physical harm. [17] Less exotic, but nonetheless far reaching claims appear to have been discussed in this file. In particular, the father of Jonathan Hartling, who was not member of his household, and not an insured person under the policy, claimed to have been so distraught upon hearing the news of his son’s death, that he struck some object with his fist, causing physical injury and arguably suffering emotional pain. The Statement of Claim says of the father “he entered into state of extreme emotional distress or nervous shock whereupon he struck an object causing personal injury to his right arm, hand and shoulder and mental shock or trauma”. As noted earlier the courts have not recognized claim for such emotional distress arising from the death of loved one. It would be bizarre if one arose from the physical injury of loved one. Once again, would point out that loss to be recoverable must pass the test of foreseeability. The prospect of person, even family member suffering “mental shock” from hearing of the death of relative is surely too remote to be compensable under this contract. I conclude that the emotional injury of an uninjured person is not covered under the “Section D” provisions by reason of the fact that it is too remote from the original contract contemplated. It was not contemplated by the contracting parties to the insurance policy. It was not contemplated by the legislature when they passed the legislation. [18] Counsel have agreed that costs in the amount of $1,000.00 should be awarded to the successful party when decision is reached. Accordingly, Wawanesa will have an order for costs in that amount. Haliburton J.

The deceased's cousin commenced an action for nervous shock after she observed the accident in which the deceased bicyclist was killed. Since the defendant was an uninsured motorist, the Facility Association defended the plaintiff's action against him; however, the plaintiff also brought an action against the insurer of a motor vehicle policy under which the deceased was insured. At issue was whether the Section D provisions of the deceased's insurance policy extended to cover the plaintiff. The deceased's insurance policy does not provide coverage to the plaintiff as the emotional harm suffered by her was simply too remote from the obligations contemplated by the contracting parties.

7_2006nssc131.txt

J. U.F.C. of A.D. 1988 876 J.C. S. IN THE QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SASKATOON BETWEEN: SANDRA CAROL RIEL and RAYMOND ANTHONY JOSEPH RIEL RESPONDENT L.G. TALLIS for the petitioner D.Z. BRAUN for the respondent JUDGMENT HUNTER J. DATE: JUNE 20, 1996 The Respondent father applies to reduce the amountof on-going maintenance of $600.00 per month for his 2 daughtersand to reduce the accumulated arrears of approximately$14,600.00. The original corollary relief judgment was made in 1989. An application for variation was dismissed in 1993 except that an order suspending enforcement of arrears during periods when the respondent is unemployed was granted. The Petitioner resides in Winnipeg, Manitoba and has custody of both daughters. She is employed and while her income has increased since 1989, her expenses have increased correspondingly. Petitioner chose to file material in response to this application and wants the matter dealt with summarily on affidavit evidence and does not want trial of the issue directed. Since the judgment, respondent's employer closed the Saskatoon operation and he has since been working as pipe- fitter. The respondent is hired on jobs in accordance with the union hiring hall practices. The respondent started to fall behind in his child support obligations in 1993. He has worked sporadically since that time. The respondent deposes to the following gross income levels for respective years as follows: 1993 $40,000 1994 $1,792 and some public assistance 1995 6,837 and some public assistance 1996 to date 5,410 Respondent's annual child support obligation is $7,200.00. The records from the maintenance enforcement office indicate the following credits to the child support payment obligation: 1993 $3,172 1994 $1,200 1995 154 1996 828 and $6,257 income tax refund garnisheed for total of $11,611.00 paid and the amount required to be paid was $25,600.00. The respondent has not provided specific informationabout the number of months he was in receipt of social assistancebenefits. However, it is clear that his income during 1995 and1996 does not allow him to meet his support obligations. The respondent proposes that his support obligation be eliminated or at least reduced during his months of unemployment. It is difficult to ascertain an appropriate amount as it is unknown whether any income replacement benefits may be available to the respondent during his periods of unemployment. Counsel did suggest that the obligation be reduced by one-half. Given the significant reduction in incomeexperienced by the respondent since 1994, there has been amaterial change in circumstances. Since his employment isuncertain in his trade a flexible order would be appropriate. Accordingly, there will be an order that the respondent pay childsupport of $300.00 per month per child during months when hisgross monthly earnings are $2,200.00 or greater and $150.00 permonth per child when his gross monthly earnings are less than$2,200.00. Further the arrears are reduced by $7,000.00 andwhen the respondent earns $2,200.00 per month or more he shallpay $200.00 per month on arrears in addition to the on-goingchild support obligation. The order of Dickson J. of September 22, 1993 iscontinued and it is further ordered that the respondent filequarterly, a financial statement or cheque stubs evidencingincome received from employment with the maintenance enforcementoffice commencing September 30, 1996 and every three monthsthereafter until the arrears are paid in full.

The respondent applied to reduce on-going maintenance from $600 per month for his two children and to reduce the accumulated arrears of approximately $14,600. The original corollary relief was made in 1989. An application for variation was dismissed in 1993 except that an order suspending the enforcement of the arrears during the times the respondent was unemployed was granted. The petitioner who had custody of the children and resided in Manitoba was employed. She requested that the matter be dealt with summarily on affidavit evidence and did not want a trial of the issue. HELD: The respondent was to pay $300 per month per child in the months when his gross earnings are $2,200 or greater and $150 per month per child when they are less. Arrears were reduced by $7,000. When he earned more than $2,200 per month he was to pay $200 per month on arrears in addition to the on-going child support obligation. The 1993 order was continued and it was further ordered that the respondent file quarterly a financial statement or cheque stubs evidencing his income with the maintenance enforcement office. 1)There was a significant reduction in the respondent's income since 1994, therefore there was a material change in circumstances. 2)The respondent had not provided specific information about the number of months he was in receipt of social assistance. It was clear, however, that his income during 1995 and 1996 did not allow him to meet his support obligations. Since his employment was uncertain a flexible order was appropriate.

7_1996canlii7107.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2015 SKQB 138 Date: 2015 05 13 Docket: QBS 151 of 2014 Judicial Centre: Moose Jaw IN THE MATTER OF THE ESTATE OF STEVEN SZWAGIERCZAK, LATE OF MOOSE JAW, SASKATCHEWAN, RETIRED, DECEASED BETWEEN: DEBRA LOUISE SCHULTZ and KRISTINE ELIZABETH SZWAGIERCZAK And KATHERINE ANNE JENSON, Proposed Executors of the Estate of Steven Szwagierczak Counsel: Lyle O. Phillips for Debra Louise Schultz Gail Wartman, Q.C. for Katherine Anne Jensen and Kristine Elizabeth Szwagierczak FIAT ELSON J. May 13, 2015 [1] Steven Szwagierczak was widower when he died on April 10, 2014. His wife, Betty, passed away on the morning of September 23, 2013. Later that same day, Mr. Szwagierczak met with lawyer and purportedly instructed her to prepare his Last Will and Testament. According to the evidence, the instructions were principally based on revisions to previous will the same lawyer had prepared for him in 2012. The new will was prepared and Mr. Szwagierczak signed it two days later, on September 25, 2013. [2] In this application, one of Mr. Szwagierczak’s five daughters seeks an order directing a trial to prove the 2013 will in solemn form. The grounds asserted by the applicant, are that, at the time of making his will, Mr. Szwagierczak did not have testamentary capacity to understand the nature of the document he was signing or the extent of his property. [3] For the reasons that follow in this fiat, am satisfied that the applicant has not made out genuine issue for trial to prove the will in solemn form. Accordingly, the application must be dismissed. THE EVIDENCE [4] Before referring to the specific evidence contained in the several affidavits filed in respect of this application, think it helpful to begin with brief summary of Mr. Szwagierczak’s family, as well as brief description of the will for which probate has been sought. [5] Although the court was not provided with information as to the date of their marriage, it is evident that Steven and Betty Szwagierczak were married for many years. The evidence also suggests that this couple was very close. More than one deponent has described the emotional pain Mr. Szwagierczak experienced during the time his wife was dying in hospital. There is little doubt that he was grief stricken when she eventually passed. [6] When Mr. Szwagierczak died, he had five adult daughters. They are: Katherine Anne Jensen [Katherine], Kristine Elizabeth Szwagierczak [Kristine], Barbara Lynn Szwagierczak [Barbara], Debra Louise Schultz [Debra] and Linda Elaine Dejong [Linda]. [7] Katherine and Kristine are the proposed executors and propounders of the will in question. Debra is the applicant who challenges it. None of the daughters resided in Saskatchewan at the time of Mr. Szwagierczak’s death. Katherine resides in Drayton Valley, Alberta; Kristine resides in Williams Lake, British Columbia; Barbara resides in Neepawa, Manitoba; Debra and Linda reside in Edmonton, Alberta. [8] According to the evidence presented with the application for probate, Mr. Szwagierczak was 80 years of age at the time he executed the challenged will on September 25, 2013. The beneficiaries of the estate, as described in the proposed will, are his five daughters, one grandson and The Canadian Cancer Society. The Canadian Cancer Society is described as the beneficiary of special bequest for $1,000.00, and the grandson is to receive $500.00 bequest. With respect to the daughters, Linda and Debra, each are to receive specific bequests of $100.00. The remaining three daughters, Katherine, Kristine and Barbara, are to receive the rest and residue of the estate, divided in three equal shares. The estimated value of the estate, according to Part of the Statement of Property, is $343,117.28. Included in Part is at least one registered account with no named beneficiary. The only asset listed in Part II is an insurance policy, payable to named beneficiary, in the amount of approximately $3,000.00. [9] number of affidavits were filed by various parties, including individuals who did not have particular interest in the application’s outcome. Certain of the matters of evidence presented in some of the affidavits are of questionable admissibility, particularly where they describe events for which the deponent does not describe first-hand knowledge. Even so, believe can summarize the admissible and relevant evidence from them. Evidence on behalf of the applicant/challenger [10] The only affidavit presented in support of the challenge to the will was the one Debra deposed herself. Having said that, the affidavit also exhibited letter from Mr. Szwagierczak’s family physician, which will also be summarized. Affidavit of the applicant, Debra Louise Schultz [11] As earlier mentioned, Debra is one of Mr. Szwagierczak’s five daughters. Her evidence centers around the events of September 2013, as well as certain subsequent events. [12] According to Debra, she and Linda decided to come to Moose Jaw after they had learned of their mother’s failing health. They arrived in early September 2013. By that time, Mrs. Szwagierczak was in hospital. Debra deposes that she and Linda visited their mother several times day. They also drove Mr. Szwagierczak to the hospital twice day so that he could be with their mother. [13] Debra further says that during the interactions with him at his nursing home and at the hospital, Mr. Szwagierczak had been very emotional and, at times, did not appear to be aware of his surroundings. There were occasions, according to the affidavit, when Mr. Szwagierczak would stare off into space with unfocused eyes or cry uncontrollably at the mention of his wife. Debra also states that Mr. Szwagierczak repeatedly said he did not know what was going on. [14] Debra deposes that during one of the visits at the nursing home, real estate agent telephoned Mr. Szwagierczak to ask for instructions on the sale of the former family home in Moose Jaw. At that time, Mr. Szwagierczak was unable to deal with the matter, and simply handed the telephone to Linda and asked that she deal with it. As result of this conversation with the agent, Debra and Linda decided to call their parents’ solicitor, Brenda Walper-Bossence, Q.C., which Debra says they did on September 20, 2013. meeting was arranged to take place three days later, on the afternoon of September 23, 2013. [15] Debra states that the meeting on September 23, 2013 took place as scheduled. Apparently, this was despite the fact that Mrs. Szwagierczak had passed away earlier that morning. Debra’s account of the meeting is that Ms. Walper-Bossence asked Mr. Szwagierczak if he knew who she was, to which he replied that he did not. When Ms. Walper-Bossence told him that she had prepared his will one year previously, Mr. Szwagierczak is reported to have said, “I don’t remember you and am not signing anything.” Ms. Walper-Bossence left business card and told Mr. Szwagierczak to contact her if he was so inclined. According to Debra, Ms. Walper-Bossence did not speak with either her or Linda in any meaningful way during this visit. [16] The applicant also deposes that, in the month following her mother’s death, she attempted to call Mr. Szwagierczak several times but was never able to speak to him. She eventually called the staff at the nursing home to inquire about him. Debra was reportedly told that the nursing home staff had been directed not to give any information unless it is to the executor of the estate. [17] During this time, Debra says that she had made number of unanswered calls to Kristine’s home. Debra deposes that the only reply she received was request from the police in Williams Lake that she stop attempting to contact Kristine. Letter from Dr. H. Volker Rininsland [18] Debra instructed her counsel to obtain letter from Mr. Szwagierczak’s family physician, Dr. H. Volker Rininsland. The letter, dated July 22, 2014, is not supported by an affidavit from Dr. Rininsland, himself. Even so, am prepared to accept the letter as physician’s report. [19] In his letter, Dr. Rininsland candidly acknowledged that he did not see Mr. Szwagierczak very much around the time the new will was signed. His last attendance with Mr. Szwagierczak, before that date, was on September 6, 2013. At that time, he says Mr. Szwagierczak was mentally alert, could recognize him and was oriented. [20] Dr. Rininsland saw Mr. Szwagierczak again on October 6, 2013 when he was admitted to hospital with an acute heart attack. At that time, he confirmed Mr. Szwagierczak was very confused, something he attributed to the illness. Dr. Rininsland does not describe any interactions after October 2013. Evidence on behalf of the propounders [21] The propounders, Katherine and Kristine, presented five affidavits, including one sworn by each of them. Affidavit of Katherine Anne Jensen [22] As mentioned, Katherine is one of Mr. Szwagierczak’s daughters and is named co-executor in the challenged will of September 25, 2013. [23] Katherine specifically responds to evidence from Debra’s affidavit, which described Mr. Szwagierczak as very emotional at both the nursing home and the hospital, and appearing to be unaware of his surroundings. In response, Katherine acknowledges that her father was extremely emotional during Mrs. Szwagierczak’s last days, but she attributes this emotion to the extreme grief he was suffering, not to loss of mental capacity. [24] Katherine also speaks of her observations about Mr. Szwagierczak’s interactions with Debra and Linda. According to her, Mr. Szwagierczak was nervous whenever these particular daughters were near him and he would not wish to speak to her (Katherine) when Debra and Linda were present. Katherine also says that she observed her father locking Debra and Linda out of his room. Finally, Katherine also deposes that, in September 2013, she observed her father to be angry with Debra and Linda and specifically heard him express his intention to exclude Debra from his will. [25] Katherine also deposed evidence about Mr. Szwagierczak’s meetings with Ms. Walper-Bossence and representative of his bank, Mr. Godwin. From Katherine’s deposition, this evidence is of little or no value as she gave no basis for her knowledge of the meetings, whether she actually witnessed them or learned of them through information and belief. Accordingly, whatever admissible evidence the propounders rely on with respect to these meetings will have to be found in the affidavits of Ms. Walper-Bossence and Mr. Godwin. Affidavit of Kristine Elizabeth Szwagierczak [26] Kristine is another daughter and the other named co-executor in the will of September 25, 2013. [27] Kristine says that she was aware her parents had become estranged from Linda some years ago. It is her understanding that they left her only $1,000.00 in the wills they signed on May 9, 2012. This evidence was later confirmed by Ms. Walper-Bossence. [28] According to Kristine, her father told her about number of things that had gone on when Debra and Linda were around him, which caused him to be very upset and angry with them. She deposes that she was advised by her father that, in September 2013, Debra and Linda went through number of his documents and belongings, without his consent, at the nursing home where he lived. Mr. Szwagierczak also told Kristine that Debra and Linda had unplugged the telephone in his room so that he was unable to communicate with either Kristine or Katherine. Kristine also deposes that her father expressed to her that he was afraid of Debra and Linda. [29] Kristine acknowledges that her father was very sad at the time of her mother’s passing, but she does not describe this sadness as signifying lack of mental capacity. Affidavit of Richard Levasseur [30] Mr. Levasseur deposes that he had been friend of Mr. and Mrs. Szwagierczak for several years, helping them out with chores and giving them rides when needed. His friendship with Mr. Szwagierczak continued throughout the relevant time in question. [31] Mr. Levasseur deposes that he was visiting with Mr. Szwagierczak on the day he gave instructions to his solicitor for his new will. In Mr. Levasseur’s opinion, Mr. Szwagierczak was sad over the passing of his wife, but did not appear to be mentally impaired. [32] Mr. Levasseur also deposes that he was aware that Mr. Szwagierczak was angry with Debra and Linda. He acknowledges never having met these two women, but he was present when Mr. Szwagierczak expressed anger about them. He also says that he witnessed Mr. Szwagierczak tell his lawyer that he wanted to leave those two daughters out of his will. He heard him talk about leaving each of them small amount of money. There was no question in Mr. Levasseur’s mind that Mr. Szwagierczak knew what he was doing when he made these decisions about his will. Affidavit of Keith Godwin [33] Mr. Godwin is employed as Financial Services Representative at the CIBC branch in Moose Jaw. [34] Mr. Godwin deposes that he knew Mr. Szwagierczak, although he did not specifically say how long he knew him. [35] Mr. Godwin deposes that, on September 26, 2013, Mr. Szwagierczak came to the branch with one of his daughters and made arrangements to set up power of attorney for his banking. On that day, Mr. Godwin observed Mr. Szwagierczak was very emotional, breaking into tears on at least one occasion. Even so, Mr. Godwin was satisfied that he could take Mr. Szwagierczak’s instructions as to what he wanted done with his assets at the bank. [36] As to those instructions, Mr. Godwin says that Mr. Szwagierczak expressed the desire to set up his accounts in such way that, if something happened to him, his daughter, acting as power of attorney, would be able to handle his accounts. Mr. Godwin specifically recalls that, although Mr. Szwagierczak had registered assets for which he could have named specific beneficiary, he specifically chose not to do so. His expressly stated the reason for this choice was, according to Mr. Godwin, the “difficult family dynamics.” [37] Mr. Godwin’s affidavit goes on to say that he did not have concerns about Mr. Szwagierczak’s mental capacity to carry out the banking arrangements he was making on September 26, 2013. Further, Mr. Godwin deposes that he met Mr. Szwagierczak again, on March 20, 2014, to sign transfer forms for certain investments. Mr. Godwin was satisfied that, at that time, Mr. Szwagierczak was competent to make banking decisions and to instruct him regarding those transactions. Mr. Godwin specifically observed that Mr. Szwagierczak was in better frame of mind than he had been the previous September, shortly after his wife’s death. Affidavit of Brenda Walper-Bossence, Q.C. [38] Ms. Walper-Bossence is solicitor practising in Moose Jaw. She prepared and attested the proposed 2013 will. Earlier in 2012, she prepared the wills for both Mr. and Mrs. Szwagierczak, which she described as the “mirror image” of each other. [39] Regarding the circumstances of the challenged 2013 will, Ms. Walper-Bossence deposes that she first received instructions to attend with Mr. Szwagierczak on or about September 10, 2013. At that time, she received telephone call from Kristine requesting an attendance with her father. Ms. Walper-Bossence believes that she attended with Mr. Szwagierczak, at the nursing home where he lived, on or about that same date. When she attended with Mr. Szwagierczak, he told her he would not sign anything until his wife got out of the hospital. It is Ms. Walper-Bossence’s recollection that one of his daughters remarked to Mr. Szwagierczak that his wife was not going to get out of the hospital, at which point Mr. Szwagierczak became “devastated with grief.” She further recalls that he cried and appeared distant. Ms. Walper-Bossence elected not to take any instructions. Before leaving, she suggested that Mr. Szwagierczak call her if he needed her services. [40] Ms. Walper-Bossence deposes that she eventually did take Mr. Szwagierczak’s instructions for new will on September 23, 2013. No evidence is given as to how this meeting was initiated, nor does she describe who was present. She does say that the instructions were given in the form of itemized changes to the will she had prepared for him in 2012. Although that will was destroyed at the time the 2013 will was prepared, she still had her notes and copy of Mrs. Szwagierczak’s “mirror image” will. Accordingly, for the purpose of identifying the instructed revisions, copy of the last will and testament of Betty Lorraine Szwagierczak, dated May 9, 2012, was exhibited to Ms. Walper-Bossence’s affidavit. [41] The exhibited copy of Mrs. Szwagierczak’s will confirms that the intended gift to Linda was originally limited to $1,000.00. There is also specific notation to the effect that Linda was not to benefit from the residue of Mrs. Szwagierczak’s estate as “we are estranged from each other”. [42] Further to the instructions received on September 23, 2013, Ms. Walper-Bossence exhibited to her affidavit the original notes she made for preparing Mr. Szwagierczak’s new will. These notes are brief but clear. According to Ms. Walper-Bossence, they identified the changes Mr. Szwagierczak instructed her to make to his 2012 will. The notes identify specific instructions for certain people. An earlier gift to one of his grandchildren was to be deleted, apparently because of dispute the grandchild had with Mrs. Szwagierczak. Two other gifts, to another grandchild and to The Canadian Cancer Society, were to be maintained. The notes also indicate that both Debra and Linda were to receive $100.00 each, with the proviso that if either of them contested it that daughter would receive nothing. There is specific notation to the effect that Ms. Walper-Bossence was to “make sure Deb and Linda don’t get any!” Ms. Walper-Bossence says that she used the exclamation punctuation to emphasize the specific instructions she had received in this regard. [43] Ms. Walper-Bossence deposes that she had no hesitation about preparing Mr. Szwagierczak’s will, and had no concerns about his mental capacity. She acknowledges that he was sad and tearful at the time he gave his instructions, but she did not equate those emotions with lack of mental capacity. Ms. Walper-Bossence also noticed good deal of anger against Debra and Linda. [44] The parties are in general agreement as to the basic principles engaged by this motion, as well as the procedure framework to be employed in the application of these principles. They differ, however, on the question as to whether the evidence presented is sufficient to meet the tests contemplated within the procedural framework. [45] Despite the parties’ agreement on the basic principles, it is appropriate to review those principles as they are set out in the authorities, several of which were commended to my attention by counsel. In addition to these authorities, was assisted by relatively recent decision by Schwann J. in Re deBalinhard Estate, 2014 SKQB 162 (CanLII), 447 Sask 172 [deBalinhard], which contained helpful review and analysis of the applicable law and related authorities. [46] The governing principles or “ground rules”, as one counsel described them, were set out by the Supreme Court of Canada in Vout Hay, 1995 CanLII 105 (SCC), [1995] SCR 876, where Sopinka J. observed that the propounder’s task of proving the legal requirements of will was assisted by rebuttable presumption. Where the propounder has presented proof that the will was duly executed and had been read over by the testator who appeared to understand it, it will be presumed that the testator knew the contents of the will, freely approved of those contents and possessed the necessary testamentary capacity when doing so. The presumption, however, may be short-lived. Where there are suspicious circumstances that cast measure of doubt on one or more of these legal requirements, such circumstances will affect the ability of the propounder to rely on the presumption. In this respect, Sopinka J. said the following at p. 889: Where suspicious circumstances are present, then the presumption is spent and the propounder of the will reassumes the legal burden of proving knowledge and approval. In addition, if the suspicious circumstances relate to mental capacity, the propounder of the will reassumes the legal burden of establishing testamentary capacity. Both of these issues must be proved in accordance with the civil standard. There is nothing mysterious about the role of suspicious circumstances in this respect. The presumption simply casts an evidentiary burden on those attacking the will. This burden can be satisfied by adducing or pointing to some evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity. In this respect, the legal burden reverts to the propounder. [47] In Saskatchewan, the procedural framework that gives meaning to these governing principles is set out in Royal Trust Corp of Canada Ritchie, 2007 SKCA 64 (CanLII), 293 Sask 238 [Ritchie], where the Saskatchewan Court of Appeal re-examined and modified the two-stage approach described by this Court in Dieno Estate Dieno Estate (1996), 1996 CanLII 6762 (SK QB), 147 Sask 14 (Sask QB). Stated simply, the two-stage process first requires an assessment as to whether there is sufficient merit to the challenger’s case that trial of proof in solemn form is warranted. If so, the procedure moves to the second stage, the trial itself. [48] In this application, the court is simply at the first stage, determining whether trial is warranted. At this step, the central questions focus on the evidentiary burden the parties must meet to resolve the application one way or the other. These questions can be simply stated: 1) what is the strength of the case the challengers must present in order to proceed to trial? 2) conversely, what type of case must the propounder of the will present in order to avoid trial and obtain grant of probate? [49] Until Ritchie, there was some confusion surrounding the answers to these questions. Despite the division of the Court of Appeal on the final disposition in Ritchie, this confusion has largely been resolved. Both the majority and dissenting judgments agreed that it is not necessary for challengers of will to present evidence that will convince the court as to the merits of their case. Rather, it is necessary only to satisfy the court that there is “a genuine issue to be tried” with respect to the grounds on which the challenge is based, such as lack of testamentary capacity or the presence of undue influence. Conversely, if the propounder presents uncontradicted evidence that fully answers the challenge, such that there can be no genuine issue to be tried on the relevant matter, the application must be dismissed. In this respect, Richards J.A. (as he then was) wrote the following at paras. 48 In order to determine if there is genuine issue to be tried, the Chambers judge hearing the application must consider all of the evidence presented and make preliminary assessment of the merits of the case. Overall, the threshold is reasonably low. The person challenging the will need not prove its case on balance of probabilities or otherwise. He or she must, however, bring forward evidence which challenges the presumption of validity and which would, if accepted at trial, tend to negative testamentary capacity or undue influence or otherwise defeat the will. The need for trial will be especially apparent when the evidence is inconsistent on material points or when credibility is in issue. 49 As Baynton J. indicated, if the applicant fails in that regard, or in the perhaps unlikely event the propounder of the will somehow fully answers the concerns raised by the applicant with uncontradicted evidence affirming testamentary capacity, the application must be dismissed. According to Dieno Estate, final disposition of the issues is also an option for the Chambers judge if the evidence itself is not in dispute and the only questions are the inferences to be drawn from the facts. [50] While find the preceding reference to be helpful one, caution must be taken here. It must be remembered that the quotation is drawn from the dissenting judgment in Ritchie. The majority, speaking through Gerwing, J.A., disagreed with the observation that the threshold for the challenge is “reasonably low”. In describing the essence of the disagreement, at para. 6, Gerwing, J.A. appeared to insert measure of proportionality into the equation: However, do not agree with the notion that "the threshold is reasonably low". The test in Quaintance is, as is the general statement of the issue to be determined in Dieno, based in the context of jurisprudence respecting the wishes of testator and the validity of will. If real question, based on probative evidence going to issues material to capacity, is raised, the will should be proved in solemn form. However it is not every suggestion of irregularity or evidence on peripheral points which will lead chamber judge to conclude that there is sufficient issue for proof in solemn form. Proof in solemn form is lengthy and expensive process and should not be entered into without sufficient foundation. Otherwise substantial portion of the estate is at risk of being frittered away in pointless litigation. [51] In the application at bar, the challenge is based exclusively on an alleged absence of testamentary capacity. The legal hallmarks of testamentary capacity were discussed in deBalinhard, where Schwann J. quoted from the decision in Kapacila Estate Re 2010 SKCA 85 (CanLII), 359 Sask 84, where Klebuc, C.J.S. (as he then was) stated the following at paras. 33 It is well established that person, having achieved the age of maturity and who is of sound mind, memory and understanding, is capable of making valid will. When the validity of will is challenged on the basis that the testator lacked testamentary capacity, the propounder of the will is called upon to prove the essential elements of testamentary capacity. Those elements were summarized by Laskin J.A. (dissenting) in Re: Schwartz (1970), 1970 CanLII 32 (ON CA), 10 D.L.R. (3d) 15 at 32 (Ont. C.A.) [aff'd 1971 CanLII 17 (SCC), [1972] S.C.R. 150]: ... The testator must be sufficiently clear in his understanding and memory to know, on his own, and in general way (1) the nature and extent of his property, (2) the persons who are the natural objects of his bounty and (3) the testamentary provisions he is making; and he must, moreover, be capable of (4) appreciating these factors in relation to each other, and (5) forming an orderly desire as to the disposition of his property ... 34 James MacKenzie, Feeney's Canadian Law of Wills, 4th ed., looseleaf (LexisNexis Canada, 2000) at s. 2.6 describes what is to be proven when will is contested on the grounds of mental capacity: s.2.6 ... When will is contested on the ground of mental incapacity, the propounder must prove that the testator understood what he or she was doing: that the testator understood the "nature and quality of the act." The testator must be able to comprehend and recollect what property he or she possessed, the persons that ordinarily might be expected to benefit, the extent of what is being given to each beneficiary and, finally, the nature of the claims of others who are being excluded. [Footnotes omitted.] [52] From the above reference, Schwann J., in deBalinhard, summarized the root issue of testamentary capacity, at para. 57 as follows: 57 To summarize, in relation to the root issue of testamentary capacity, evidence of the following is relevant and must be considered: 1) whether the testator was knowledgeable about the nature and extent of his or her property; 2) whether the testator understood the persons who would benefit from his or her will and the extent of the bequest given to each beneficiary; 3) whether the testator understood the nature of the claims by those who were not named as beneficiaries; and 4) whether the testator formed an orderly desire to dispose of his or her property. As Kapacila goes on to observe, eccentricity, capriciousness or unfairness is not sufficient marker of testamentary incapacity, nor for that matter should diagnosis of dementia or Alzheimers be taken to be conclusive on the issue. ANALYSIS [53] The evidence presented in support of the challenge to Mr. Szwagierczak’s will is extremely thin. It is based more on what is unknown than on description of any probative evidence going to the issues of capacity that could be presented at trial. At most, Debra’s evidence touches on two matters. Firstly, the evidence provides some vague and nonspecific descriptions of her father’s demeanour and utterances during an extremely troubling and painful time in his life. Secondly, the evidence purports to raise question as to why there was such haste in Mr. Szwagierczak re-doing his will within very short time of his wife’s death, at time when he was quite vulnerable. [54] In my view, the evidence Debra presents of her father’s behaviour at the relevant time does not raise genuine issue for trial on any of the indicia listed by Schwann J. More specifically, these descriptions do not cast any doubt as to 1) Mr. Szwagierczak’s ability to appreciate the nature and extent of his property; 2) his ability to understand who would benefit from his will and the extent of that benefit; 3) his ability to appreciate the claims of those who were not named as beneficiaries; or 4) whether his will reflected the formation of an orderly desire to dispose of his property. [55] Moreover, the evidence of Mr. Szwagierczak’s behaviour and state of mind, as described in the affidavits of Mr. Levasseur, Ms. Walper-Bossence, and Mr. Godwin, suggests Mr. Szwagierczak’s abilities were intact in all these respects. It is also noteworthy that their evidence on the point is uncontradicted. [56] As for the speed within which Mr. Szwagierczak’s new will was prepared and signed, am satisfied that this evidence does not cast any doubt on the testator’s mental capacity. Considering the evidence of Mr. Szwagierczak’s age and his desire to revise the terms of his will, it would not have been unreasonable for him to attend to these revisions as soon as possible, particularly before Katherine and Kristine returned to their homes. While it might have been wise for the propounders to have presented some evidence on this point, am satisfied that the omission does not make the applicant’s challenge any more persuasive. [57] Further, if there was real issue regarding the haste in which the will was prepared and signed, one would have expected the challenge to be based on an allegation of undue influence. Although there was discernible hint of that in the brief and the submissions of the applicant’s counsel, an allegation of undue influence was not formally raised in this case. Considering that such an allegation would require evidence of Mr. Szwagierczak’s free will having been overborne by the actions of others, think the applicant was wise not to have asserted it. Had she done so, would almost certainly have dismissed it. CONCLUSION [58] In the result the application for proof of the Last Will and Testament of Steven Szwagierczak in solemn form is dismissed. Upon the expiry of the appeal period from this decision, the caveat shall be vacated and letters probate may issue as prayed. Each party may have their reasonable costs from the estate. J. R. W. ELSON

Wills and Estates – Proof of Will in Solemn FormWills and Estates – Testamentary Capacity After the death of the testator, one of his five daughters brought an application for an order directing a trial to prove the testator’s 2013 will in solemn form on the ground that the testator did not have testamentary capacity to understand the nature of the document he was signing or the extent of his property. The testator and his wife had executed mirror wills in 2012. His wife died in September 2013, and within two days of her death the testator had signed a new will. It was based on his first will with some revisions. The value of the estate was approximately $343,000 and the will made bequests of $100 to the applicant and another daughter. The testator left the rest and residue of the estate divided into equal shares between his three other daughters. The applicant deposed that at the time the testator’s wife was dying, she visited him and found him to be very confused. When the testator’s lawyer came to meet with him as his wife was dying, the applicant stated that the testator said he did not remember the lawyer and would not sign anything. The only other evidence submitted by the applicant was a letter from the testator’s physician, who reported that he saw the testator in early September 2012 and that he was then alert and could recognize him. The evidence presented by the two daughters who were named as executors of the will consisted of their own affidavits and the affidavits of a friend of the testator; a bank official who had prepared a power of attorney for the testator made at the time of the death of his wife; and the lawyer who prepared the original 2012 wills and the 2013 will. The contents of the various affidavits deposed to the testator’s estranged relationship with the applicant and her sister, his intention to exclude the applicant from his will, and that he appeared to be mentally capable. The lawyer’s affidavit deposed that at the initial meeting that she attended with the testator when his wife was dying, he was devastated by grief and she did not take any instructions. When she met with him again to take instructions regarding his new will, she kept notes of them—the testator had expressly instructed her to make sure that the two daughters would get nothing except for the specific bequests. The lawyer confirmed that she had no concerns with the testator’s capacity. HELD: The application was dismissed. The court held that the applicant’s evidence in support of the challenge to the will was extremely thin and the descriptions of the testator’s behaviour did not raise doubt regarding his capacity regarding his property and his disposition of it. The other affidavits presented uncontradicted evidence of the testator’s undiminished mental capacity.

6_2015skqb138.txt

C.J.Q.B. THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2004 SKCA 99 Date: 20040623 Between: Docket: 948 Vanguard Inc. Prospective Appellant and Royal Bank of Canada, Fonds de Solidarite des Travailleurs du Quebec (F.T.Q. and Steven Leakos Prospective Respondents and Peak Manufacturing Inc., Peak Manufacturing (USA) Inc., Bonair Leisure Products Ltd., Oh!Zone RV Inc., 3911331 Canada Inc., Roynat Inc., Banque Larentienne du Canada, GE Commercial Distribution Finance Canada Inc., GE Commercial Distribution Finance Corporation, Transamerica Commercial Finance Corporation, Canada, Bombardier Capital Ltd., Bombardier Capital Inc., Textron Financial Corporation, Key Bank, Ford Credit Canada Limited, Ford Motor Company of Canada, Limited, Nicholson Leasing (1994) Ltd., Fleetwood Credit Corp., doing business as Banc of America RV Finance, Inc., California corporation, Banc of America Specialty Finance, Inc., North Carolina corporation, Bank of America N.A., national banking association, Bank of America, Canada Specialty Group Ltd., an Ontario corporation, The Bank of Nova Scotia, Great American Assurance Company, VHL Management Inc., Chelsea Management Inc., Chartwell Management Inc., 826681 Alberta Inc., 836685 Alberta Inc., La Ville de Thetford Mines, Nexus Holdings Inc., Chaseheld Equity Ltd. and RBT Real Estate Partnership Non-Parties Before: Sherstobitoff J.A. Counsel: Grant M. Currie for the Prospective Appellant Jeffrey M. Lee for George Wilson et al. Gordon Berscheid for Justice Canada Michael W. Milani, Q.C. for Royal Bank Application: From: Q.B. 1578/03, J.C. of Saskatoon Heard: June 23, 2004 Disposition: Dismissed Written Reasons: By: The Honourable Mr. Justice Sherstobitoff SHERSTOBITOFF J.A. (orally) [1] This is an application for an order extending the time to apply for leave to appeal and for leave to appeal. Sections 13 and 14 of the Companies Creditors Arrangement Act, R.S.C. 1985, c. C-36, govern the proposed appeal. Subsection (2) of section 14 of the Act says that “. no appeal shall be entertained unless, within twenty-one days of the order or decision being appealed, or within such further time as the court appealed from, allows, the appellant has taken proceedings therein to perfect his or her appeal.” The applicant took no steps to appeal within the twenty-one day period due to an inadvertence of its lawyer. [2] Although the applicant cannot bring itself within s. 14(2), it argues that this court nevertheless has the power to extend the time either under s. 13 of the Companies Creditors Arrangement Act which empowers the appeal court to grant leave to appeal “on such terms as to security and in other respects as the judge or court so directs” or under s. 9(6) of The Court of Appeal Act, 2000, S.S. 2000, c. C-42.1, which empowers judge, on leave to appeal application, to extend an appeal period. [3] Similar arguments were considered and rejected in Gaz Metropolitain Inc. v. Wynden Canada Inc. (1982), 45 C.B.R. (N.S.) 11 (Que. C.A.); Re Cage Logistics Inc. (2003), 2003 ABCA 36 (CanLII), Alta. L.R. (4th) 65 (Alta. C.A.); and Korte v. Deloitte Haskins and Sells (1996), 178 A.R. 209, on the ground that the plain ordinary meaning of the words of s. 14(2) is that only the court appealed from has power to extend the time within which leave must be sought. accept and adopt the reasoning in these judgments. [4] As to the possible application of s. 9(6) of The Court of Appeal Act, 2000, it should be noted that subsection (7) of s. says that where provision of the section conflicts with the provision of an enactment governing an appeal, the provision of the enactment prevails. Accordingly, 14(2) of the Companies Creditors Arrangement Act prevails over s. 9(6) of The Court of Appeal Act, 2000. [5] Both the application for extension of time and the application for leave to appeal are dismissed with costs in the usual way.

This was an application for an order extending the time to apply for leave to appeal and for leave to appeal. Sections 13 and 14 of the Companies' Creditors Arrangement Act govern the appeal. The applicant took no steps to appeal within the 21 day period due to an inadvertence of its lawyer. HELD: The appeal was dismissed. The plain and ordinary meaning of the words of s. 14(2) of the Act is that only the court appealed from has power to extend the time within which leave must be sought. Section 14(2) of the Act prevails over s. 9(6) of The Court of Appeal Act, 2000.

8_2004skca99.txt

DCC/wak NOVA SCOTIA COURT OF APPEAL Citation: Milne v. Twin Mountain Construction Ltd., 2003 NSCA 41 Date: 20030414 Docket: CA 187910 Registry: Halifax Between: Norma Milne and Murray Tweedie v. Twin Mountain Construction Limited Respondent Judges: Roscoe, Bateman and Hamilton, JJ.A. Appeal Heard: April 11, 2003, in Halifax, Nova Scotia Held: Appeal dismissed per reasons for judgment of Bateman, J.A.; Roscoe and Hamilton, JJ.A. concurring. Counsel: Michael Coyle and Thomas MacEwan, for the appellants Thomas Jarmyn, for the respondent Reasons for judgment: [1] This is an appeal from an interlocutory order dismissing the appellants’ demand for particulars of general damage claim. [2] In an action initiated in the Supreme Court, Twin Mountain Construction (the respondent) has claimed that Norma Milne and Murray Tweedie (the appellants) “negligently or fraudulently” misrepresented the boundaries of a parcel of property that the appellants sold to the respondent. Alternatively, the respondent claimed breach of contract. Since 1996 the respondent company had, with permission of the appellants, used the property for composting, the creation of topsoil and sand excavation. The company purchased the property in order to continue these activities. The respondent says, in essence, that because the property is materially less than the size it was represented to be, its plans to extract sand or otherwise develop the property are negatively affected. [3] The appellants (defendants in the Supreme Court action) demanded better particulars of the damages (Civil Procedure Rule 14.24). It was the respondent’s position that no further particulars were required. The appellants therefore applied to Chambers judge for an order compelling substantive response to the demand. Civil Procedure Rule 14.24 provides: (1) Where party, upon receipt of notice in writing demanding further and better statement of the nature of the claim or defence of the party, or further and better particulars of any matter stated in any pleading, affidavit or statement of facts of the party, fails to supply them within the time specified in the notice, which time shall not be less than ten (10) days, the court may, upon such terms as are just, order the particulars to be delivered within specified time, or, if no time is specified, then the particulars shall be delivered within ten (10) days from the date of the order. (2) The statement or particulars shall be filed and attached to the pleading, affidavit or statement of facts to which the same refers. (3) The party demanding the statement or particulars shall, unless an order otherwise provides, have ten (10) days for pleading after delivery of the statement or particulars. [4] The matter came on for hearing before Justice Alan P. Boudreau of the Supreme Court who, while ordering better particulars of the claim for special damages, dismissed the application for further particulars of the general damage claim. The appellants say that in the latter regard, the judge erred at law. [5] When particulars are demanded before Defence has been filed such are generally not ordered unless necessary to enable the defendant to plead. (See D.B. Chaisson and I.H. Dennis, Odgers’ Principles of Pleading and Practice in Civil Acts in the High Court of Justice, 22nd ed. (Stevens Sons, 1981) at p. 152 and Hanna (M.A.) Co. v. Nova Scotia (Premier) (1990), 1990 CanLII 4219 (NS SC), 97 N.S.R. (2d) 281; N.S.J. 143 (Q.L.)(S.C.T.D.) at paras. 10 and 11). [6] The general damage claim in issue here is worded as follows: 13 ... (a) General damages based upon expected profits from development of the property and/or excavation of sand; [7] While maintaining that the details of the damages sought are not sufficiently particularized in the statement of claim, the appellants have not suggested that the pleading is so deficient as to warrant striking under Civil Procedure Rule 14.25. [8] The appellants urge that the particulars should have been ordered because Civil Procedure Rule 14.13(a) requires the respondent to plead details of the quantum of the expected general damages: 14.13. statement of claim, counterclaim, and third party notice, shall state specifically, (a) particulars of any damages, whether special or general, that are ascertained or ascertainable and capable of being calculated in terms of money, and these damages with the amount thereof shall be claimed as special damages; (b) particulars of any other general damages, but the amount thereof need not be stated; (c) any other specific relief or remedy being claimed, other than claim for general or other relief, but costs need not be claimed. [9] The appellants argued before the Chambers judge that they were entitled to know the amount of the claim for general damages based upon expected profit from the development of property and/or the excavation of the sand. They maintained that they could not file defence until such information was provided. [10] It was the respondent’s position that particulars of damages need only be pleaded where the demand is liquidated. An expectation claim which depends upon variable factors (here, factors such as the state of the economy, the price of sand, the cost of excavation) need not be particularized in the pleadings. [11] I am not persuaded that the absence of the particulars sought by the appellants compromise their ability to file a defence to this action. It is difficult to conceive of what additional information the appellants need at this stage. The respondent has specified the type of damages that it seeks. [12] The necessity for particulars must be evaluated taking into account the nature of the action and the timing of the demand in the context of the Civil Procedure Rules as whole. There are other Rules (for example Rules 18, 19 and 20) which can be utilized by the appellants to discover the underlying details of the damage claim. [13] The matter on appeal is an interlocutory, discretionary decision of Chambers judge. The standard of review is simple but stringent one. This Court will not interfere unless wrong principles of law have been applied or patent injustice would result. am not persuaded that either is the case. DISPOSITION: [14] It is my view that this interlocutory appeal is unnecessary and completely without merit. I would dismiss the appeal with costs to the respondent of $1500 inclusive of disbursements. Bateman, J.A. Concurred in: Roscoe, J.A. Hamilton, J.A.

The plaintiff company sued the defendants for negligent misrepresentation and breach of contract alleging that the defendants sold it a piece of land smaller than what it was represented to be. The plaintiff intended to excavate and sell sand from the land and claimed damages including loss of profits due to the smaller amount of sand available. Before filing a defence the appellants demanded particulars of the alleged lost profits. The plaintiff refused to provide particulars and the chambers judge dismissed the appellants' application for an order compelling particulars. ,appeal dismissed; the appellants had not challenged the sufficiency of the pleadings; no case was made out that the appellants required the particulars in order to file a proper defence to the action. There were other rules available to the appellants which could be utilized to discover the underlying details of the damage claim.

3_2003nsca41.txt

NOVA SCOTIA COURT OF APPEAL Citation: C.P. v. D.S., 2008 NSCA 10 Date: 20080125 Docket: CA 281587 Registry: Halifax v. D.S. and D.S. Respondents Publication Ban: pursuant to s. 94(1) of the Children and Family Services Act Judges: Roscoe, Bateman and Fichaud, JJ.A. Appeal Heard: January 16, 2008, in Halifax, Nova Scotia Held: Appeal allowed per reasons for judgment of Bateman, J.A.; Roscoe and Fichaud, JJ.A. concurring. Counsel: Linda Tippett-Leary, for the appellant Deborah Conrad and Jill Graydon, for the respondents PUBLISHERS OF THIS CASE PLEASE TAKE NOTE THAT s. 94(1) OF THE CHILDREN AND FAMILY SERVICES ACT APPLIES AND MAY REQUIRE EDITING OF THIS JUDGMENT OR ITS HEADING BEFORE PUBLICATION. SECTION 94(1) PROVIDES: 94(1) No person shall publish or make public information that has the effect of identifying child who is witness at or participant in hearing or the subject of proceeding pursuant to this Act, or parent or guardian, foster parent or relative of the child. Reasons for judgment: [1] The appellant is the birth mother of the child J.E.S. The respondents are the child’s adoptive parents and, as well, relatives of the child. [2] J.E.S. was born in the spring of 2002. few months later, J.E.S., who was then residing with her birth parents, was found to be in need of protective services. temporary guardianship order issued in Alberta where the family lived. The child was returned to her birth parents but again apprehended by the child welfare authorities. In 2005 an order for permanent guardianship was granted. [3] Upon first learning of the welfare authorities involvement with J.E.S. in 2005, the respondents temporarily re-located to Calgary, and put themselves forward as potential adoptive parents. [4] On the same day that the permanent guardianship order was granted, it was terminated and replaced by Private Guardianship Order, under which the respondents became the guardians of J.E.S. (Child, Youth and Family Enhancement Act, C-12, R.S.A. 2000). The order contained provision that access by the birth parents was left to the discretion of the respondents. [5] The respondents returned with the child to live in Nova Scotia where they applied to adopt her. [6] On February 19, 2007 the birth parents, who now reside in British Columbia, were each personally served with Notice of the Adoption Hearing, scheduled to take place on May 1, 2007. Neither appeared at the hearing. The respondents’ application to adopt J.E.S. was granted. [7] The appellant appeals from that Adoption Order. At this stage the appellant says that she is not seeking to oppose the adoption, but wishes to be heard on the issue of access. The birth father is not participating in this appeal. Legislative Background [8] The Children and Family Services Act, S.N.S. 1990, c. (the “Act”) requires that birth parents consent to the adoption of child not in the permanent care of an agency (subject to limited exceptions). Where the birth parents have not provided consent they must each receive notice of the proposed adoption hearing. Once notice of the hearing has been given, the court is entitled to dispense with the birth parent’s consent, if s/he fails to appear at the hearing, or in any event: 74(3) Where the person proposed to be adopted is under the age of majority and is not child in care, no order for the child's adoption shall be made, except as herein provided, without the written consent to adoption of the child's parents which consent may not be revoked unless the court is satisfied that the revocation is in the best interests of the child. 75 (1) Where the applicant seeks to dispense with the consent of any living person, the applicant shall give that person notice of the time and place of the adoption hearing together with copy of the application and all material proposed to be used in support of it not later than one month before the hearing of the application. (2) Notice shall be given by personal service or, if the person cannot be so served, by substituted service as directed by the court. (3) Any person served pursuant to subsections (1) and (2) who does not appear at the hearing of the application and object to the adoption is deemed to have consented to the adoption. (4) Where the court is satisfied that person, whose consent is required pursuant to subsection (2) or (3) of Section 74, (f) is person whose consent in all the circumstances of the case ought to be dispensed with, the court may order that the person's consent be dispensed with if it is in the best interests of the person to be adopted to do so. 1990, c. 5, s. 75. [9] Although the child here had been the subject of “permanent care” order in Alberta, as mentioned above, that order was terminated in favour of private guardianship by the respondents. When the adoption application first came on for hearing on February 15, 2007, the birth parents had not been given notice. The judge adjourned the application to the May 15th date, directing that the birth parents be notified in the interim. [10] When the application resumed on May 15th the judge dispensed with the parents’ consent on the basis that neither were in attendance, nor represented at the hearing (s. 75(3)). He granted the adoption order which makes no provision for access. [11] An adoption order may “continue or vary” an existing access provision: 78(6) Where an order for adoption is made in respect of child, the court may, where it is in the best interests of the child, continue or vary an order for access or an access provision of an agreement that is registered as an order under the Maintenance and Custody Act in respect of that child. 1990, c. 5, s. 78; 2005, c. 15, s. 6. [12] The Private Guardianship Order under which the respondents were granted care of the child states: (b) access to the mother [C.P.] and the father [J.S.] is at the discretion of the private guardians [D. and D. S.]; [13] The appellant takes the position that this is an access provision within the meaning of s.78(6) of the Act. Fresh Evidence [14] The appellant asks that we receive fresh evidence on this appeal. That evidence consists of an affidavit from the appellant and one from the Nova Scotia Legal Aid staff lawyer, Charlene Moore. The affidavits attest to the appellant’s unsuccessful efforts to retain counsel to represent her at the adoption hearing. [15] Summarizing, the appellant deposes that when served with the adoption notice the appellant contacted B.C. Legal Aid, which, in turn, contacted N.S. Legal Aid requesting representation for the appellant. In late March, 2007 the appellant was notified that N.S. Legal Aid would not provide counsel. The appellant appealed that decision and was notified on April 26 that her appeal was successful. On that day she telephoned staff legal aid lawyer in Nova Scotia and was told to call back the next day, Friday, April 27. [16] Ms. Moore deposes that on April 27, 2007, she prepared legal aid certificate for the appellant which, with list of possible counsel, was to be sent to the appellant by mail. The appellant says that it was her understanding that legal aid lawyer would be present at the May 1st hearing to speak on her behalf. On May 1st she telephoned the Nova Scotia Legal Aid offices, spoke with Ms. Moore and learned that she was not represented at the adoption hearing. She was subsequently advised that the adoption had been granted. [17] As is the practice with such applications, we received the proposed fresh evidence but reserved our decision on its admission (R. v. Stolar, 1988 CanLII 65 (SCC), [1988] S.C.R. 480; 40 C.C.C. (3d) at p. 491 S.C.R., p. C.C.C.). The test for admission of fresh evidence on appeal, directed to an issue of fact or law decided at trial, was set out by McIntyre, J., writing for the Supreme Court of Canada, in Palmer and Palmer v. The Queen, 1979 CanLII (SCC), [1980] S.C.R. 759; (1979), 50 C.C.C. (2d) 193 at p. 760 S.C.R., p. 193 C.C.C.. The proposed evidence must satisfy all of the following criteria: it is not generally admitted if, by due diligence, it could have been produced at trial; it must bear upon potentially decisive issue; must be reasonably capable of belief; and must be such that, if believed, it could reasonably be expected to have affected the result. [18] However, where integrity of the trial process is the focus of the fresh evidence application, the test from Palmer, supra is not strictly applied. (R. v. Taillefer; R. v. Duguay, 2003 SCC 70 (CanLII), [2003] S.C.R. 307, R. v. Dunbar, 2003 BCCA 667 (CanLII), [2003] B.C.J. No. 2767 (Q.L.)(C.A.), R. v. W.(W.) (1995), 1995 CanLII 3505 (ON CA), 84 O.A.C. 241; 100 C.C.C. (3d) 225). [19] The appellant is not offering the fresh evidence here to dispute factual or legal finding at trial, but to establish that she intended to be at the adoption hearing and had made reasonable efforts for legal representation, but was not present or represented at the hearing despite her efforts. Counsel for the respondents and the presiding judge were unaware that the appellant birth mother wished to be heard. Consequently, says the appellant, the process leading to the adoption order was flawed. Through inadvertence she was denied her right to be heard. [20] Counsel for the respondents takes issue with several of the factual assertions contained in the appellant’s affidavit, mainly surrounding the birth mother’s alleged past attempts to contact the child and denial of her requests for access. The appellant, who continues to reside in British Columbia, was not available for cross-examination on her affidavit. [21] I would admit fresh evidence limited to the portions of the appellant’s affidavit addressing her efforts to secure counsel for the adoption hearing (paras. 6, 7 and 8) and the affidavit of Charlene Moore. Clearly the due diligence requirement is not applicable here. am satisfied that the evidence of the appellant’s attempts to be represented at the hearing is reasonably capable of belief; the steps she took to engage counsel were reasonable in the circumstances and that she acted with dispatch. am further satisfied that the judge presiding at the adoption application, having ordered notice to the birth parents, would have heard the appellant’s submissions had she been present or represented. DISPOSITION [22] Section 83 of the Act permits an appeal of an adoption order: 83 (1) person aggrieved by an order for adoption made by the court may appeal therefrom to the Nova Scotia Court of Appeal within thirty days of the order. [23] The judge was entitled to dispense with the mother’s consent if she did not appear at the adoption hearing. However, I am satisfied that she had a bona fide intention to appear or be represented and that she made reasonable, although unsuccessful, efforts to do so. The right to be heard is principle of natural justice. It would be procedurally just to set the adoption order aside and permit the appellant to be heard. [24] Before doing so, however, it is appropriate that consider whether such result would be in the best interests of the child. have tremendous sympathy for the respondents here who have provided loving home for the child and incurred what is undoubtedly significant expenses in relation to securing her welfare. They have an understandable interest in finality and have and will experience uncertainty and frustration in these circumstances. However, I am satisfied that allowing the appeal and remitting the matter is consistent with the child’s best interests. She has resided with the respondents since 2005 and will continue to do so pending the further hearing. The consequent delay need not impact the child. It is, in my view, in the child’s best interests that her birth mother’s wish to have access be determined on the application to adopt. [25] In allowing the appeal and remitting the matter to the application court would make no comment on the merits of the appellant’s intended submissions to that court. Additionally, it will be for the application court to decide whether the reference to access in the Private Guardianship Order is an “access order” or “access provision” within the meaning of s.78(6) of the Act. Finally, the respondents are not precluded from raising, before the application court, the issue of whether the appellant’s consent to the adoption is required under s.74 of the Act, in view of the prior permanent care order in Alberta. [26] I would allow the appeal, set aside the adoption order and remit the adoption application to a judge of the Family Division. Bateman, J.A. Concurred in: Roscoe, J.A. Fichaud, J.A.

The appellant appealed the adoption order regarding her natural child. Although at one time the child had been in the permanent care of the Agency, that order was terminated and replaced by a private guardianship order which had placed the child with the now-adoptive parents. Although neither of the birth parents, who resided in British Columbia, had attended the adoption hearing, the birth mother now sought access to the child and requested that the court receive fresh evidence as to her unsuccessful efforts to obtain counsel to represent her at the adoption hearing. Appeal allowed; adoption order set aside; matter remitted to the application court for a further hearing; application to admit fresh evidence granted in part; the portions of the appellant's affidavit addressing her efforts to secure counsel for the adoption hearing admitted into evidence. The appellant had a bona fide intention to appear or to be represented at the hearing and had made reasonable, although unsuccessful, efforts to do so. Allowing the appeal would be in the child's best interests as she had resided with the adoptive parents for the past three years and would continue to do so pending the further hearing.

d_2008nsca10.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB Date: 2007 01 03 Docket: Q.B. 50/2006 Judicial Centre: Yorkton BETWEEN: PIERRE TAMBELLINI and WALLY ZENKEWICH Counsel: Ryan O. Malley for the appellant Bernard N. Stephaniuk for the respondent JUDGMENT KRAUS J. January 3, 2007 [1] This is an appeal, pursuant to s. 39 of The Small Claims Act, 1997, S.S. 1998, c. S-50.11, from judgment given January 19, 2006. [2] As ground of appeal, the appellant asserts palpable and overriding error by the learned trial judge in accepting, and finding as fact, part of the testimony of witness (that an amount was owing by the appellant to the respondent) but not accepting the further testimony of the witness that an amount was also owing to the appellant by the respondent. [3] The respondent argues that there was no error of law nor unreasonable finding of fact by the trial judge, and that his conclusions are not so clearly wrong as to make the decision unreasonable. [4] The trial judge found that the appellant admitted owing $1,685.86 to the respondent who accepted that amount as being the correct quantum of his counterclaim; judgment was given to the respondent for that amount. There is no issue taken about that part of the judgment. [5] As to the issue under appeal, in his judgment the trial judge referred to the appellant’s evidence of loaning the respondent $1,900.00 in 2003 for the purpose of funding repairs to the respondent’s car. He also referred to the testimony of Tammy McKay, part-time employee of the appellant, who related conversation she had overheard between the parties in 2004, in the presence of two other people; the trial judge said this: She stated that Pierre asked Wally when he was going to pay him back the $1,900.00 and Wally said “I have bills for you too, why don’t you come into town and we’ll discuss it?” He went on to hold that the statement by the respondent to the appellant in the presence of the witness Tammy McKay “. appears to be to the effect that some amount to be owing .” to the appellant. However, the trial judge then held that he was not satisfied “. as to the particulars of the transaction or the amount”, and dismissed the claim of the appellant. [6] Indeed, it does seem that the trial judge accepted most of the testimony of the witness Tammy McKay, including her evidence as it related to an implied admission by the respondent of some existing indebtedness owing to the appellant. Nor did he expressly reject her testimony as to the amount, $1,900.00. However, there was other testimony, contradictory, before the court on that point: the transcript clearly shows that the respondent unequivocally denied any loan made to him by the appellant. [7] This appeal is not new trial but an appeal on the record: Kitzul v. Ungar (1991), 1991 CanLII 7678 (SK QB), 90 Sask. R. 239 (Sask. Q.B.). The trial judge “. has an immense advantage in assessing evidence and arriving at findings of fact .”, and “. court of appeal must extend very substantial deference to the findings of fact of trial judge”: Board of Education of Long Lake School Division No. 30 v. Schatz (1986), 1986 CanLII 3292 (SK CA), 49 Sask. R. 244 (Sask. C.A.). The standard of appellate review “. is that of palpable and overriding error and its functional equivalents, including ‘clearly wrong’, ‘unreasonable’, and ‘not reasonably supported by the evidence’” H.L. v. Canada (Attorney General), 2005 SCC 25 (CanLII); [2005] S.C.R. 401. [8] In my view, the trial judge preferred the respondent’s denial of the alleged debt to the witness’s testimony on that point. The respondent’s evidence, accepted by the trial judge and unrelated to the witness, was sufficient basis for determining that the onus of proof upon the appellant had not been met. The trial judge was not required to accept the entirety of the witness’s testimony, despite having accepted most of it, particularly in light of the contradictory evidence of the respondent denying the sum claimed by the appellant. Moreover, the denial by the respondent of the appellant’s claim, accepted by the trial judge, was fatal to the appellant’s onus of proving mutual understanding and absolute acknowledgement of the alleged debt between the parties, well established principle of jurisprudence: Larder v. Farquhar (1888), 20 N.S.R. 454 (C.A.); Armitage v. Vivian (1885), 1885 CanLII 177 (MB CA), Man. R. 360 (C.A.); Bloomley v. Grinton (1851), U.C.C.P. 309 (C.A.). That principle of law and case authorities were not before the trial judge nor argued on this appeal. [9] am not persuaded that the judgment is not reasonably supported by the evidence. There is no palpable or overriding error in the judgment. [10] The appeal is dismissed. [11] There is no order as to costs.

This is an appeal pursuant to s. 39 of The Small Claims Act, 1997. The appellant asserts a palpable and overriding error by the learned trial judge in accepting, and finding as fact, part of the testimony of a witness but not accepting the further testimony of the witness that an amount was also owing to the appellant by the respondent. HELD: The appeal is dismissed. The trial judge was not required to accept the entirety of the witness's testimony, despite having accepted most of it, particularly in light of the contradictory evidence of the respondent denying the sum claimed by the appellant. The denial by the respondent of the appellant's claim, accepted by the trial judge, was fatal to the appellant's onus of proving a mutual understanding and absolute acknowledgement of the alleged debt between the parties.

b_2007skqb1.txt

J. IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION 2011 SKPC 143 Date: September 2, 2011 File: n/a Location: Prince Albert Between: Wallace Fox and The Government of Saskatchewan (Minister of Finance) And Muskoday First Nation operating as the Muskoday Convenience and Gas Bar Defendants J. Ron Cherkewich For the Plaintiff J. Fyfe For the Defendant Province of Saskatchewan J. Ron Cherkewich For the Defendant Muskoday First Nation and Muskoday Convenience and Gas Bar JUDGMENT S. D. LOEWEN, [1] Before left for holidays in August, left instructions for letter to be sent to Mr. Ron Cherkewich to advise of certain matters relating to the timing of the release of my decision in this matter. That letter is reproduced in its entirety as follows: April 15, 2011 Ron Cherkewich Legal Services Justice and Attorney General 202, 1100 1st Avenue East 820 1874 Scarth Street Prince Albert, SK S6V 2A7 Regina, SK S4P 4B3 Attention: Ron Cherkewich Attention: James Fyfe By Fax: (306) 763-0505 By Fax: (306) 787-9111 Dear Sirs: RE: Wallace Fox v. The Government of Saskatchewan (Minister of Finance) and Muskoday First Nation, operating as the Muskoday Convenience and Gas Bar This matter was heard on June 24, 2011 before His Honour Judge Loewen and was reserved for decision. Please be advised that Judge Loewen is away for the next two weeks on education leave and vacation leave. He has taken this file with him and will be working on this decision while he is away. He advises that it should be finalized shortly after his return. We trust the above is satisfactory. Yours truly, L. Button-Rowe Judge’s Secretary Prince Albert Provincial Court for Province of Saskatchewan By fax page only original retained on file [2] In response the Court received letter from Mr. Ron Cherkewich dated August 15, 2011. reviewed the letter when was absent from my office on my holiday. [3] The letter was terse and complained about the speed at which the matter was being considered by me. The letter also demonstrated lack of understanding of some of the basic principles and procedures in Small Claims Court, however, will not address those issues in this decision. The contents of that letter are reproduced entirely below: August 15, 2011 Hand Delivered L. Button-Rowe Judge’s Secretary Provincial Court 188 11th Street West Prince Albert, SK S6V 6G1 Cc: Honourable Chief Judge C. A. Snell Via Facsimile (306) 787-3933 Cc: Chief Austin Bear Cc: Chief Wallace Fox Cc: Balance of Plaintiffs Cc: James Fyfe, Q.C. Via Facsimile (306) 787-9111 Dear Ms. Button-Rowe: Re: Chief Austin Bear, Chief Wallace Fox et al v. The Government of Saskatchewan (Minister of Finance) This is to acknowledge your letter on behalf of the Court dated April 15, 2011 (SIC) received August 15, 2011 by fax transmission. The arrangements and contents of the letter are not satisfactory. This matter originating in my office some months earlier on November 10th, 2010, when we submitted 18 Claims for issuing by the Court on behalf of the following claimants: Chief Austin Bear Chief Richard Fiddler Chief Darin Poorman Councilor Albert Lafond Councilor Ernest George Tribal Chief Felix Thomas Chief Wallace Fox Chief Daniel Blackstar Councilor Ina Whitehead Councilor Orrin Greyeyes Vice-Chief Edward Lerat Cynthia Missens Chief Wesley Daniels Chief Reginald Bellerose Councilor Enock Poitras Councilor Elvis Henry Vice-Chief Anthony Watson Elmer Campbell (herein “the Claimants” The Claims were provided to the Court as courtesy. We appreciate that it is the Court’s practice (in Prince Albert in any case) to lend their staff’s assistance to claimants in finalizing their Claims for issuing by the Court. An instrument entitled “Interim Ruling” was mailed to us from the Court on January 4, 2011. Our response on behalf of the Claimants resulted in further instrument being mailed to us entitled: “Supplementary Interim Ruling”. It is dated April 21, 2011. Considering that on the face of it there are no proceedings in play to trigger the Court’s jurisdiction, the Court clearly is prevailing upon Claimants good will and respect for the process in mustering the Claimant to participate in the “hearing”. hearing date was then scheduled for June 24, 2011. The Court imposed on the Claimant the serving of “notice of the hearing” to Saskatchewan party contemplated by the Claimants. The Court also directed the Claimants to serve Canada who was not contemplated to be named and who the Claimant had no intention of naming. On June 24, 2011, the Province of Saskatchewan was represented. Canada, who was not contemplated as party to the proceedings but was identified by the Court for copy of the notice did not appear nor provide any recognition of the process invented by the Court. On June 24, 2011 the Court indicated that there would be “decision” within two weeks. That has not happened. Our position is that the process invented by the Court is unacceptable. The Court has frustrated access to the Court. The Courts dalliances with the process run against case law and particularly and most recently, the Supreme Court of Canada in series of cases speaking of access of citizen to the Courts. It disregards the enabling legislation which directs the jurisdiction of the Provincial Court in the handling of these matters. It also ignores the practices and procedures promoted by the Provincial Court of Prince Albert in processing these matters: 1. Claimant goes to the Court 2. Court staff assists Claimant with Claim 3. Claim is issued 4. Claim is served 5. The parties appear at pre-hearing conference to determine if resolution can be achieved outside the Court room 6. Failing resolution, Court hearing is scheduled We are in to the 9th month! Our clients are being put at risk by the Court’s ad hoc inaction: limitation periods are looming: evidence is being dated or lost. At this point in time, it is our clients’ position that they want the Claims issued and dates fixed that the Claims proceed in the ordinary and respectful manner. Please place this matter before another Provincial Court Judge and advise us when can pick up the issued Claims for service. Yours most respectfully, J. Ron Cherkewich [4] Upon reading the letter, thought perhaps Mr. Cherkewich was going to ask that recuse myself from acting further on the matter, however, upon my return to the Court on August 29th, note that no such application had been made. Mr. Cherkewich, as senior counsel, would know what is required to have judge removed from file and since he did not do so, am content knowing that he has now voiced his opinion to me, his clients, our Chief Judge and the representative of the province. He did not, however, make an application for recusal, and therefore will assume that he is content with me continuing. This decision will therefore resolve the issue that was outstanding, namely, whether or not the claims that were presented by him should be issued. [5] These claims were submitted for issuing into our office on November 30, 2010, and in response to letter from Mr. J. Ron Cherkewich, again solicitor for all of the proposed Plaintiffs, and after some careful reflection and consultation with administrative personnel within the Court, issued an Interim Ruling. That ruling is reported in its entirety as follows: INTERIM RULING [1] On November 30 2010, this claim, together with 17 others, all very similar in nature, were presented to our Court for issuing of Small Claims Summons. The issue to be decided is whether or not to issue the Summons in the particular circumstances of each case. have taken Mr. Fox’s claim to provide decision that will govern all these separate claims at this time and will not issue separate decisions on each claim, but will use Mr. Fox’s claim as precedent to follow on all the others. [2] Section of The Small Claims Act provides as follows: 7(1) If the judge is satisfied that the plaintiff may have valid claim, the judge shall issue summons that: (a) is directed to the person or persons against whom the claim is made; (b) states the time of the case management conference or time of the trial and the court location that the judge considers appropriate. The same section provides exceptions to the mandatory issuing of Summons in the following cases: (3) The judge may refuse to issue summons if the judge considers that it is not in the interest of one or more of the parties to proceed with the claim pursuant to this Act. (3.1) The judge may refuse to issue summons if the judge considers that the claim of the plaintiff: (a) is without reasonable grounds; (b) discloses no triable issue; or (c) is frivolous, vexatious or an abuse of the court’s process. [3] In the present case, there are number of areas that need to be addressed before will decide whether to issue Summons. [4] First, it is noted that a substantial portion of the relief being sought by the Plaintiff relates to matters that are, prima facie, outside the jurisdiction of the Provincial Court. Paragraphs 57.4 through 57.10 in essence, seem to be asking this Court to give declaratory relief. The actual prayers are couched in terms that might suggest otherwise, but giving “judgment confirming” or “judgment that...” could be interpreted as asking this Court to make declarations that may not be within our jurisdiction. [5] Second, there are issues to be decided relating to the purported existence of trust relationship. Under the terms of The Trustee Act, Court is defined as being, in Saskatchewan, the Court of Queen’s Bench. [6] Third, there appears, again prima facie, to be room to interpret the Claim as raising certain constitutional questions. For example, paragraph 57.11 of the Claim could be interpreted as challenge to the constitutionality of the Provincial authority to impose the tax regime complained of by the Plaintiff. [7] There is also potential issue as to whether or not First Nation can be sued in Small Claims Court. Interpretation of treaty right is not frequently litigated in Small Claims Court, as these matters are usually dealt with in either The Federal Court or at least in Superior Courts in Canada. believe this issue should be addressed as well. [8] Having outlined the potential difficulties in this matter, and without in any way deciding the issues one way or another, the question remains whether or not to issue the summons as drafted. In order for me to refuse to issue the summons, have to find that one of the exceptions listed above apply to the situation before me. Before can make proper determination on that issue, it is my belief that the Plaintiff should be given an opportunity to argue the issues identified. In keeping with that same principle, feel it would also be appropriate to have the other potential parties to this proceeding provide input, if they wish to do so. [9] My decision in this matter is therefore as follows. will respectfully decline, at this time, to issue the summons in this matter and all the related claims. will give the Plaintiff the opportunity to address the Court on the concerns have raised. [10] If the Plaintiff wishes to argue his case before me, will direct the Plaintiff to provide notice to the other parties. would also direct that the Plaintiff provide notice to both the Attorneys General of Canada and Saskatchewan in accordance with s. of The Constitutional Questions Act in wording that would appropriately give them notice of my concerns, together with copy of the Claim in the Fox matter together with copy of this decision. Dated at the City of Prince Albert, Saskatchewan this 4th day of January, 2011. [6] The purpose of providing for the process that outlined was to provide an opportunity for Mr. Cherkewich, on behalf of his clients, to be heard on the questions that raised. Before denying person standing to bring the claim thought it would be prudent to give him that opportunity. That decision was delivered to Mr. Cherkewich on or about the date of it being issued, and for some significant period of time no response was received. [7] Over two months later, Mr. Cherkewich responded to the Interim Ruling by letter of his, dated March 10, 2011. That letter did not appear to show clear understanding of what thought had ruled on in my earlier Interim Ruling, and was argumentative about number of my concerns. At that point thought it best to issue Supplementary Interim Ruling, which was delivered to Mr. Cherkewich on April 21, 2011. That Supplementary Interim Ruling is attached and reproduced again in its entirety as follows: SUPPLEMENTARY INTERIM RULING [1] By written reasons provided on January 4, 2011, the Court refused to issue the small claims summons for reasons provided therein. [2] On March 10, 2011, an eight page letter responding to that decision was provided to the Court by the proposed Plaintiff’s solicitor. Further direction is apparently required. [3] With respect to that issue, reference is made to paragraph 10 of the decision that provided on January 4, 2011. [4] therefore direct that return date for the Notice contemplated in paragraph 10 of my previous decision be set in consultation with the office of the proposed Plaintiffs’ solicitor. Once that date is selected then notice to the parties referred to in paragraph 10 shall be provided minimum two weeks prior to the return date. [5] Dated at the City of Prince Albert, in the Province of Saskatchewan, this 21st day of April, 2011. [8] The jist of my concern was that the bulk of the claim may not be within the jurisdiction of our Court, however, left for Mr. Ron Cherkewich the alternative to issue the claims out of the Court of Queen’s Bench if he so chose. Alternative to that he could set up hearing among himself, the Court, and the other parties to the hearing, to argue whether or not the claims should be issued. Mr. Ron Cherkewich opted for the latter and in arranging for date, June 24th was chosen and the hearing proceeded. At the hearing on June 24th, Mr. Ron Cherkewich was there representing all of the proposed Plaintiffs, and he also purported to represent the Muskoday Convenience and Gas Bar, one of the Defendants in all of the proposed claims. [9] In essence, what was contemplated by the claims was that number of Chiefs from around the province were proposing to sue the Government of Saskatchewan, the Muskoday First Nation, and also the Muskoday Convenience and Gas Bar. Mr. Cherkewich represented that the Muskoday Convenience and Gas Bar was owned and operated by the Muskoday First Nation. [10] One of the claims contained allegations by Austin Bear, the Chief of the Muskoday First Nation as the Plaintiff and the same three Defendants, Government of Saskatchewan, Chief Bear’s own First Nation, and that First Nation’s Muskoday Convenience and Gas Bar. As Chief Bear was present in Court at the time these representations were made accepted this rather unusual situation for the purposes of argument on the issue of whether or not the claim should be issued for all of these matters. Mr. Cherkewich indicated that they had lawyer engaged to represent the store in the event the claims were issued. [11] Although proper service on the province and the Federal authorities was not filed with the Court, representative, as indicated above, from the Provincial Government was present and Mr. Cherkewich filed with the Court the materials purported to be proper service on the Federal Crown by proving service on an official in the Minister of Justice’s office in Ottawa. [12] The method that chose to deal with the issue of whether or not claim should be issued was not the usual way that matters are dealt with in our Court. That however was dictated by the number of claims that were proposed and the length and complexity of each individual claim. [13] In Provincial Court under the provisions of The Small Claims Act claims must be issued by Provincial Court Judge. The Provincial Court is gatekeeper in some respects to ensure that claims comply with the Act prior to them being issued. Under section 7(1) of The Small Claims Act if judge is satisfied that the Plaintiff may have valid claim, the judge shall issue summons that is directed to the person against whom the claim is made, and set case management conference date. [14] Subsection 3.1 of s. provides exceptions to the mandatory procedure and reads as follows, namely: (3.1) The judge may refuse to issue summons if the judge considers that the claim of the plaintiff: (a) is without reasonable grounds; (b) discloses no triable issue; or (c) is frivolous, vexatious or an abuse of the court’s process. [15] This gatekeeper function is not reflected in the way that claims are issued in the Court of Queen’s Bench. Claims are issued by Registrar or Deputy Local Registrar and issues such as whether or not claim is frivolous, vexatious, an abuse of the Court’s process, or not within the jurisdiction of the issuing authority are not considered. If Defendant, once claim is issued, feels that the claim may be frivolous or of like nature, the Defendants are left to bring an application under Rule 173 of the Queen’s Bench Rules of Court to have claim or portions of claim struck on those or other grounds. [16] In short, the function of Deputy Local Registrar is administrative whereas the function of the Provincial Court Judge exercising his or her jurisdiction under The Small Claims Act is quasi judicial one. That is the background and generally provides the reasoning for me proceeding in this matter in the fashion that did. [17] In the present case, Mr. Ron Cherkewich has stated on number of occasions, but none as equivocally as he did in his letter to our Court on March 10, 2011, that the claim is test case. [18] Paragraph one on page two of his letter says the following: “This is intended as test case.” When asked during argument on June 24th as to why then, if it was to be taken as test case, were there to be 18 separate claims issued, he responded that there was interest from number of Chiefs across Saskatchewan all of whom wanted to be personally named in the suit and he was merely accommodating that request. [19] One of the fundamental concerns that had from the outset with regard to these numerous claims was that the relief being sought appeared at first blush to be largely declaratory in nature. There are other concerns that have arisen during the course of my contemplation of the case and also arguments, and will discuss them all in order. [20] The best way for me to start in determining whether or not this Court has jurisdiction, in my view, is to review paragraph 57 of the Wallace Fox claim. Paragraph 57.1 of the claim asks for reimbursement of the tax collected on cartons 2, and 4, or under paragraph 57.2 alternatively, judgment in that amount. Those kinds of claims can and are often handled in our Courts and appear on the surface of them to be appropriate and legitimate. [21] Paragraph 57.3 asks for reimbursement of four dollars ($4.00) by way of damages, however, it does not indicate against whom damages are being sought. The beginning of the paragraph asks only for relief against the Defendant Saskatchewan. No facts are averred in the claim to support any such relief. [22] Paragraph 57.4 asks that this Court as against Saskatchewan provide judgment “Confirming that The Tobacco Act and The Revenue and Financial Services Act has no application to the subject purchaser and that the collection of the tax on the subject purchase is illegal, coercive and is unlawful expropriation or confiscation of property of Wallace Fox which is exempt from any such Provincial tax or deposit.” Clearly that is declaratory relief. Quoting from Mr. Ron Cherkewich’s letter of March 10th, page five, paragraph b. Declaratory Judgment, he states as follows, and accept this statement as correct statement of the law: “It is judgment which declares the rights of the parties or expresses the opinion of the Court on given question of law without ordering anything to be done.” That is precisely what paragraph 57.4 in my view purports to do. [23] Similarly, paragraph 57.5 is asking for “Judgment that Saskatchewan has breached its fiduciary obligation and incidental duties to preserve the rights and privileges of Wallace Fox and to not engage in illegal, unlawful, coercive legislative policy or obstructive acts”, etc. Again that is well within the same definition that took from Mr. Cherkewich’s letter. [24] Paragraph 57.6 asks for “Judgment” etc. Again, while risking being seen as repetitive, this appears to be request for judgment that is only declaring right, but not asking for any other order and is therefore declaratory in nature. [25] Paragraph 57.7 is asking that this Court issue judgment that “Saskatchewan by refusing to refund the tax or return the deposit has misappropriated or converted the same”. Again, this is declaratory relief being sought. [26] Paragraph 57.8 asks that this Court provide “Judgment etc.” doubt whether any Court in Canada can provide for declaration that the Minister of Finance of any jurisdiction may or may not be, in contempt of the Parliament of Canada, but certainly this Court cannot. It is clearly outside of our jurisdiction. [27] Paragraph 57.9 would be covered, in the event of successful claim being made, under paragraph 57.2. [28] Paragraph 57.10 does not read as if anything is being claimed and if it were made clear what exactly is being asked for under that subparagraph if understand it correctly would be clearly declaratory as well. [29] Paragraph 57.11 asks for an accounting that is clearly not contemplated by the pleadings. An accounting might apply if an action was commenced for all of the cigarettes sold by some or all of the on-Reserve stores in Saskatchewan that are subjected to the new Regulations. However, Wallace Fox has in his claim only averred that four cartons of cigarettes were purchased. I’m not sure what kind of an accounting is requested, as the claim itself appears to “account” for his entire loss if proven. It does not appear to accord with the balance of the pleadings or the principles related to an accounting by way of lawsuit. [30] Paragraph 57.12 again is covered under paragraphs 57.1 and .2. [31] Paragraph 57.13 is asking for “Section 24 Charter damages.” It does not stipulate with any precision what damages have been suffered, nor establish any sort of quantum for those damages. [32] Paragraphs 57.14 through 57.17 are fairly standard clauses that are added to the end of most claims issued in Courts in this province. [33] While Muskoday First Nation and the Muskoday Convenience and Gas Bar are named as Defendants in the claims, no relief is being sought against either of these Defendants. Reference can be made to the opening sentence in paragraph 57 of the claim where, “Wallace Fox claims as against Saskatchewan.” That is the sole claim for relief in the document in question. [34] In addition to my concerns referred to above, about the majority of this claim being about declaratory relief, note that substantial portion of the claim is based upon an alleged breach of contract. copy of the contract referenced by Mr. Cherkewich was filed by him at the argument of this matter. In that regard, note that neither Wallace Fox nor any of the other proposed Defendants were signatories to that agreement. They would not, in my view, on contractual basis, be entitled to the benefit of the agreement in their personal standings. [35] Mr. Cherkewich indicated during argument that the agreement was one that was entered into after some litigation in the Court of Queen’s Bench. [36] In summary, then, given that virtually all the potential issues raised by these claims are declaratory in nature, and therefore outside the jurisdiction of the Provincial Court, I will decline to issue the summonses as requested. The issues raised by these claims are important issues to the potential Plaintiffs, and may well be worth litigating, but that litigation, in my view, must be done in the Court of Queen’s Bench, by either issuing a new claim, or by way of enforcement proceedings of the claim upon which the agreement referenced above was made. The language used by Mr. Cherkewich is an apparent attempt to couch the prayer for relief in wording that avoids direct reference to request for declaratory relief, however, the substance of the relief remains just that. [37] In addition, there is no claim being advanced against any potential Defendant other than the Government of Saskatchewan. The other named potential Defendants should not have to “defend” case where nothing is averred against them. [38] Further, insofar as the potential claims attempt to address contractual issues, there is no privity of contract between any of the claimants and the Government of Saskatchewan, let alone the other named Defendants. [39] Section 7(4) of The Small Claims Act contemplates decision such as the present one. It provides: “Where judge refused to issue summons, that refusal does not prevent plaintiff from proceeding in the Court of Queen’s Bench or in any other manner authorized by law.” The claimants in this case are therefore free to pursue their action in that Court as they might wish. [40] Dated at the City of Prince Albert, in the Province of Saskatchewan, this 2nd day of September, 2011. S. D. Loewen,

The plaintiff filed a number of duplicate claims on behalf of a number of individuals. The issue was whether the claims should be issued. HELD: Section 7(1) of The Small Claims Act provides that a Provincial Court Judge acts as a gatekeeper to insure that claims comply with the Act before they are issued. In this role, the Provincial Court judge is exercising a quasi judicial function. Counsel for the plaintiff has clearly indicated that the claim is a test case. The plaintiff seeks declaratory relief. A substantial amount of the claim involves an allegation of breach of contract, but neither the plaintiff nor the proposed defendants were signatories to the contract. Accordingly, they would not be entitled to the benefit of the agreement. As virtually all of the potential issues raised by these claims are declaratory in nature, they are outside the jurisdiction of the Provincial Court. Any litigation over these issues must be done in the Court of Queen's Bench.

7_2011skpc143.txt

nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2014 SKQB 344 Date: 2014 10 23 Docket: QB 148 of 2014 Judicial Centre: Saskatoon BETWEEN: TORONTO-DOMINION BANK and DAVID GARRY SCHELL and CORINNE LAVOIE Counsel: L. Zerajic for the plaintiff No one representing the defendants FIAT ROTHERY J. October 23, 2014 [1] This fiat is in response to certain deficiencies in draft order nisi for judicial sale provided by plaintiff’s counsel. The court’s direction on various aspects of the proposed order will assist both plaintiff’s counsel and the bar in general. [2] The plaintiff applied for an order nisi for judicial sale of the property owned by the defendants. The Limitation of Civil Rights Act, RSS 1978, L-16 [LCRA] does not preclude the plaintiff from suing on the covenant because this is not purchase-money mortgage. However, judicial sale is required so that the plaintiff may apply to have the amount of deficiency in the judgment set by the court. Otherwise, as provided by s. of the LCRA, foreclosure of the mortgage operates as full satisfaction of that debt. [3] The plaintiff applied by notice of application for the order nisi for judicial sale, with service upon both defendants. Neither defendant appeared in court. The plaintiff filed draft order nisi for judicial sale in support of its application. It is from this draft order that certain rulings and directions are now provided. THE APPROPRIATE SELLING OFFICER [4] The draft order proposes that after the end of the redemption period, the mortgaged land be sold under the direction of the plaintiff’s lawyers, by way of listing the property for period of ninety days with licenced real estate agent. While the assistance of real estate agent is beneficial in obtaining the best price for residential property such as this, it has long been decided by this court that another solicitor other than the plaintiff’s own solicitor must direct the sale. [5] As stated by Wright J. in Farm Credit Canada Lundback, 2002 SKQB 376 (CanLII), 225 Sask 315 [Lundback] as follows: nan The applicant applied for an order for judicial sale following the service of statement of claim on the respondents in which it sought foreclosure or alternative relief. In so doing, it asked that its solicitor, Mr. Hesje, be appointed as selling officer to conduct the sale and report to the Court. nan expressed my concern to Mr. Hesje during the course of his submissions as to the propriety of the applicant solicitor serving in such dual function. He informed me that some members of our Court have allowed this to be done, others have declined. nan In my respectful view, it is not appropriate for the Court to appoint, as selling officer, the solicitor for the applicant creditor. There are obvious difficulties with conflict of interest. Who does the selling officer serve: the Court, from which his or her authority originates; or the client? nan The matter is of sufficient importance that concluded should reduce my thoughts to fiat and direct that it be distributed to other members of the Court. To be fair, Mr. Hesje indicated he was perfectly willing to have another member of the Law Society unconnected to the proceedings appointed as selling officer. understand that Grant Richards of Cuelenaere Kendall Katzman Watson Hagen will serve in this role as opposed to Mr. Hesje. [6] agree with the reasoning set out in Lundback. The proposed selling officer ought not to be the plaintiff’s own counsel. SETTING THE RESERVE BID [7] The setting of the reserve bid in judicial sale is requirement of s. of LCRA which states: Where, in an action upon or relating to mortgage of real property, the mortgagee, or person claiming through or under him, seeks to have the property sold, and the proceeds of sale applied in satisfaction of the mortgage indebtedness in whole or in part, the court or judge shall not order sale of the property except subject to such upset price or reserve bid as the court or judge deems proper having regard to all the circumstances. [8] As stated in Saskatoon Credit Union Ltd. Goertz, (1989), 1989 CanLII 4446 (SK CA), 73 Sask 81 (CA) at para 34: The general principle governing the upset price or reserve bid under s. has been touched on above: the amount fixed by the judge must be reasonable price, that is, as near the fair market value as is possible to be obtained at forced sale. Since the judge did not fix reserve bid and since this case must be remitted to the Court below for up-to-date evidence as to present value of the property, prevailing market conditions and all other relevant factors before reserve bid can be fixed, it is inappropriate to attempt any more than very general statement of principle. Since s. applies only to sales at the request of the mortgagee, it was obviously enacted to protect the interest of the mortgagor. Whether the land is worth more or less than the amount owing, it will always be in the best interest of the mortgagor that the land not be sold at price far below its real value, always possibility at forced sale. Thus, the primary responsibility of the judge must be to ensure that the best possible price will be obtained for the land…the judge must use the substantial discretion vested in him to ensure reasonable price on the one hand and to ensure that the sale not be abortive on the other. [Emphasis added] [9] Setting the reserve bid is an exercise of judicial discretion. The only information before the court as to the value of this mortgaged land is “residential desktop report” appraisal completed January 8, 2014, which appraises the mortgaged land at market value of $85,000 to $125,000. Plaintiff’s counsel states that the plaintiff does not know the condition of the house because no one has inspected it. Counsel suggests that setting the reserve bid at $100,000, which is 80% of the upper range of the value, is appropriate in the circumstances. [10] From this partial appraisal and with no information on the condition of the premises, setting the reserve bid at $100,000 may not reflect the best possible price that can be attained. Under the terms of this proposed order nisi for judicial sale, the realtor is permitted to reduce the list price to the amount of the reserve bid without further direction from the court. It would be more fair to set the reserve bid at an amount closer to $125,000. If the mortgaged land cannot be sold at that amount, the plaintiff has leave to return the matter to court to seek a lower reserve bid, based upon evidence to support its position. Therefore, I set the reserve bid (or minimum selling price) at $115,000. THE PAYMENT OF PURCHASE MONIES INTO COURT [11] The draft order sets out the following proposal for disbursing the purchase monies: AND IT IS FURTHER ORDERED that the purchase monies shall be applied disbursed as follows: (a) firstly, to the property taxes outstanding on the mortgaged premises to the date of sale; (b) secondly, to any real estate commission payable; (c) thirdly, to the reasonable and actual property maintenance and utility costs incurred by the Plaintiff to the date of sale; (d) fourthly, to costs incurred by the Plaintiff in this action on solicitor and client basis to be taxed; (e) fifthly, to the Plaintiff for application toward the amounts owing to the Plaintiff herein as directed by this Honourable Court on application to confirm the sale; and (f) lastly, if any sale funds remain that the funds be paid into this Honourable Court and disbursed by further order of the Court on application by any of the remaining interested parties. [12] This proposed order is not in accordance with Rule 10-47(2). This proposed order contemplates the plaintiff paying itself costs it may be entitled to under the mortgage, paying itself the amounts owing under the mortgage, and paying itself the costs on solicitor client basis “to be taxed”. [13] Rule 10-47(2) of the Queen’s Bench Rules states: (2) Any moneys resulting from the sale, mortgage, partition or exchange must be paid into Court or to trustees, or otherwise dealt with as the judge in chambers may order. [14] Rule 10-47(2) and the corresponding form 10-45A make it clear that the purchase monies are to be paid into court to the credit of the cause to be applied as directed by the court. While it may be permissible to have the outstanding property taxes and real estate commission paid out of the proceeds of sale, the determination of reasonable costs allowed under the mortgage is matter for the court to determine upon further application. [15] Solicitor-client costs must be assessed by the court, upon application with service upon the defendants. The monies cannot be disbursed to the plaintiff until that assessment has been made. See: CIBC Roberts, 2006 SKQB 44 (CanLII). [16] Monies owed under the mortgage are to be set by the court on further application; the plaintiff does not receive those funds in advance. There may be accounting issues that the defendants may wish to address and the application to confirm the sale allows for this relief. The proper forum to disburse funds is the application to confirm the sale, if the judicial sale process has proved successful. THE CONFIRMATION OF SALE APPLICATION [17] The application to confirm the sale must be brought in timely manner. Form 10-45A refers to that application being made within one month of the sale. This proposed order provides for two months prior to the confirmation application, which creates uncertainty for the proposed purchaser and unnecessary delay for both the plaintiff and the defendants. [18] Because solicitor-client costs must be assessed by the court on notice of application, it follows that the application for the order confirming sale must also be brought by notice of application. This is the stage in the foreclosure proceeding to not only seek confirmation of the sale, but also to seek the court’s direction on the payment of the purchase monies, including costs. It is the stage to set the deficiency amount of the judgment, if any. All these outstanding matters ought to be addressed in one final proceeding. DIRECTIONS TO PLAINTIFF’S COUNSEL [19] Counsel for the plaintiff has leave to file an amended draft order nisi for judicial sale which incorporates the rulings herein, and to direct it to my attention for review. [20] will maintain carriage of this file, including the application to confirm the sale. Because some of the terms of the draft proposed order nisi for judicial sale are matters that have cautioned the plaintiff’s counsel about on previous applications, it is appropriate that assess solicitor-client costs. Plaintiff’s counsel may obtain date for the next court proceeding from the local registrar. J. A. R. ROTHERY

The court gave leave to counsel for the plaintiff to file an amended draft order nisi. It made the following recommendations regarding the draft order: 1) the sale should be held under the direction of a solicitor other than the plaintiff’s solicitor; 2) that relying upon a partial appraisal and in the absence of information on the condition of the property, setting the reserve bid at $100,000 might not reflect the best price. Fairness demanded the reserve bid be set at $125,000 but the court set the bid at $115,000. If the property could not be sold at that price, the plaintiff was given leave to apply to the court for a lower reserve bid; and 3) Queen’s Bench rule 10-47(2) required that purchase monies are to be paid into court to the credit of the cause to be applied as directed by the court, including costs. Only after an application and service upon the defendant and after the court had assessed solicitor client costs could monies be disbursed to the plaintiff. Monies owed under the mortgage must be set out by the court on application. All of these matters may be addressed in one final proceeding, in the application to confirm the sale, if the judicial sale proved successful.

e_2014skqb344.txt

E. J. Gunn QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 98 Date: 2007 03 14 Docket: Q.B.C.A. No. 33/2006 Judicial Centre: Saskatoon BETWEEN: ORION RAYCRAFT and SHAUNNA RAYCRAFT, and HER MAJESTY THE QUEEN, Respondent Appearances: Orion Raycraft and Shaunna Raycraft on their own behalf Sami A. Shenouda for the Crown JUDGMENT CURRIE J. March 14, 2007 [1] At a June 2, 2006 trial in Provincial Court the appellants, Orion Raycraft and Shaunna Raycraft, were found guilty of breaching a bylaw of the Rural Municipality of Vanscoy No. 345. The trial justice of the peace convicted the appellants of breaching Bylaw 2‑1995, which provides: “That no poultry or livestock be permitted in districts zoned Hamlet.” [2] Before convicting the appellants, the trial justice heard evidence: (a) that cattle were being kept on the appellants’ property; (b) identifying and proving Bylaw 2‑1993, the zoning bylaw by which the appellants’ property is determined to be in district zoned “Hamlet”; and (c) identifying and proving Bylaw 2‑1995, the bylaw prohibiting livestock in that zoning district. [3] The appellants did not lead evidence at trial. They did not dispute that they were keeping cattle on their property. Their defence related to points of law. [4] The appellants appeal from their conviction. Four issues are to be addressed:(1) the appellants’ application to admit new evidence on the appeal;(2) a constitutional question raised by the appellants;(3) the significance of the word “hamlet” in the bylaw; and(4) the meaning of the word “livestock” in the bylaw. (1) Application to admit new evidence [5] At the hearing of this appeal the appellants applied for the admission of new evidence. New evidence will not be admitted on an appeal if, by due diligence, it could have been adduced at trial. Further, the evidence will be admitted on appeal only if it bears upon a decisive or potentially decisive issue in the trial: R. v. Palmer (1979), 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759; Carriere v. Carriere, 2004 SKCA 80 (CanLII), 249 Sask.R. 240. [6] The appellants have submitted, by way of sworn affidavits and by way of oral presentation, that some of the evidence they seek to have admitted came into their hands after the trial. have reviewed the documents tendered for admission by the appellants. Some of the documents were in the possession of the appellants earlier than the trial. These documents include correspondence and the appellants’ notes for presentation to meeting of the council of the rural municipality. As these documents were in the possession of the appellants, the documents could have been adduced at the trial. For this reason, decline to admit these documents in evidence on the appeal. [7] The evidence that has come into the possession of the appellants after the trial, and that the appellants seek to have admitted, includes: (a) minutes of the council meeting that occurred before the trial; (b) Bylaws 1‑1993, 8‑1994 and 1‑1998 of the rural municipality; and (c) letter, dated more than two years before the trial, from Saskatchewan Government Relations and Aboriginal Affairs to the rural municipality, suggesting an amendment to Bylaw 1‑1993, the rural municipality’s basic planning statement. [8] The minutes of the meeting could have been obtained prior to trial with due diligence. In any event, since the minutes serve only to demonstrate that the appellants addressed council, the minutes do not bear upon decisive or potentially decisive issue at the trial. [9] The appellants tender three bylaws of the rural municipality. The appellants have explained their unsuccessful efforts, before trial, to obtain copies of bylaws and amendments from the rural municipality. am not persuaded, however, that the documents could not have been obtained by due diligence. [10] The appellants asked for zoning information from the rural municipality, and the rural municipality provided the appellants with copies of the zoning maps that are appended to the zoning bylaw. These maps indicate that the appellants’ property is in district zoned “Hamlet”. The appellants subsequently asked for material in addition to the maps, but the appellants did not make clear what they were seeking. As described in Ms. Raycraft’s affidavit, the appellants asked the rural municipality for “bylaws and resolutions clarifying the zoning status” of their property. request of this nature does not communicate the particular documents, or even categories of documents, that are being requested. The appellants are not lawyers, but it is not unreasonable to expect non‑lawyers to frame their requests for documents in manner that permits one to understand what documents are being sought. Framing their requests in this manner would have amounted to due diligence. [11] In any event, the three bylaws tendered by the appellants do not bear upon decisive or potentially decisive issue at the trial. Bylaw 1‑1993 purports to be the rural municipality’s basic planning statement, and its relevance to the issues is not apparent. The appellants seem to suggest that there may be some inconsistency between the basic planning statement and Bylaw 2‑1995, under which the appellants were convicted, but no inconsistency is apparent. The second bylaw tendered by the appellants, Bylaw 8‑1994, purports to be an amendment to Bylaw 1‑1993, and so it shares the lack of relevance. [12] The third bylaw tendered by the appellants, Bylaw 1‑1998, purports to be an amendment to Bylaw 2‑1993, the zoning bylaw. The amendments in this document are not reflected in the version of the zoning bylaw that was put in evidence at the trial. Thus it may be, as suggested by the appellants, that the version of the zoning bylaw put in evidence was not the current version. Alternatively, it may be that the version of the zoning bylaw put in evidence was the current version, as consequence of more recent amendments. [13] For the purposes of the application for admission of new evidence, this question not matter, because the amendments set out in the purported Bylaw 1‑1998 do not relate to any issue in this matter. The amendments address other topics. [14] The letter from Saskatchewan Government Relations and Aboriginal Affairs does not bear upon decisive or potentially decisive issue at the trial. Assuming it could be proven, the references to proposed amendments in the letter would not establish that there had been any amendments. As well, the proposed amendments relate to the basic planning statement, not to the zoning bylaw or to the bylaw under which the appellants were convicted. [15] For the above reasons, the application to admit new evidence on the appeal is dismissed. (2) Constitutional question [16] The appellants ask that Bylaw 2-1995, which prohibits livestock in districts zoned “Hamlet”, be declared ultra vires on the ground that it is uncertain. The appellants have not given notice under The Constitutional Questions Act, R.S.S. 1978, c. C‑29. Notice is required when the constitutionality of bylaw is questioned. For this reason, the constitutional question is not properly before me. [17] In any event, the uncertainty on which the appellants rely in attacking the bylaw does not exist, as I discuss in the balance of this decision. Thus, even if the question were properly before me, would dismiss the application. (3) Significance of the word “hamlet” [18] The first of the appellants’ arguments on the merits relates to the use of the word “hamlet” in Bylaw 2‑1995: “That no poultry or livestock be permitted in districts zoned Hamlet.” The appellants argue that the district in which their property lies is not “hamlet” in the sense of it being legal community of that name. The appellants refer to The Rural Municipality Act, 1989, S.S. 1989‑90, c. R‑26.1 (subsequently repealed by The Municipalities Act, S.S. 2005, c. M‑36.1), which defined “hamlet” in law at the relevant time. The appellants say that the district in which their property lies does not fall under this definition, and so as matter of law the appellants cannot be guilty of breaching Bylaw 2‑1995. That is, since their district is not hamlet, they cannot be guilty of keeping livestock in district that is hamlet. [19] The appellants misunderstand the use of the word “hamlet” in the bylaw. In the zoning bylaw, and in Bylaw 2‑1995, “Hamlet” does not refer to community of that name as identified in The Rural Municipality Act, 1989. “Hamlet” is simply the label given by the rural municipality to particular zoning district. The reference in Bylaw 2‑1995 is to “districts zoned Hamlet”, not to “hamlet” within the meaning of The Rural Municipality Act, 1989. [20] The label given to zoning district is significant only as an aid to determining those parts of the bylaws that set out the rules governing that particular district. For example, in this case the appellants learned from the zoning maps that their property lies within zoning district labelled “hamlet”. With this information, the appellants were in position to peruse the bylaws relating to districts labelled “hamlet”, and to learn of the rules governing their property including the rule prohibiting cattle. [21] The appellants fail on this argument. (4) Whether cattle are livestock [22] The second of the appellants’ arguments on the merits relates to the use of the word “livestock” in Bylaw 2‑1995. Neither Bylaw 2‑1995 nor the zoning bylaw defines “livestock”, although Part of the zoning bylaw defines “Intensive Livestock Operation” as “the operation or facilities for rearing, confinement or feeding of poultry, hogs, sheep, goats, cattle or horses, in such numbers or conditions that requires permit under this bylaw.” Thus, to the extent that the zoning bylaw refers to an operation relating to keeping livestock, “livestock” includes cattle. [23] In the absence of specific definition of “livestock”, though, the appellants argue that the word is uncertain, and that it can be defined so broadly as to be either meaningless or unenforceable. [24] In support of this argument, the appellants refer to definitions of “livestock” from various sources. They point out that the broadest of the definitions of “livestock” include virtually any living creature that might be kept by people, including bees and butterflies. Against this background, the appellants ask how anyone can know what “livestock” is, within the meaning of the bylaw. If one cannot know what “livestock” is, they say, then one cannot be convicted of keeping livestock. [25] The appellants are correct in identifying range of definitions of “livestock”. Definitions include: (a) at the narrow end of the range, “cattle, horses, and similar animals kept for domestic use but not as pets, esp on farm” (Collins English Dictionary, Canadian Edition, 2005, HarperCollins Publishers); and (b) at the broad end of the range, “Domestic animals generally; any animals kept or dealt in for use or profit” (Shorter Oxford English Dictionary, 3d ed., 1973, Oxford University Press). [26] Two points emerge. First, whatever definition of “livestock” is used, the definition always includes cattle. Second, in order to determine whether Bylaw 2‑1995 has been breached by the keeping of cattle, one does not need to identify each animal that may be included in the word “livestock”. One needs only to know whether cattle are included in the word “livestock”. They are included, since cattle are “livestock” under any definition of the word. [27] The uncertainty suggested by the appellants does not exist. Under Bylaw 2‑1995 no livestock is permitted in the district. Cattle are livestock, and so cattle are not permitted in the district. [28] The appellants fail on this argument. [29] The trial justice made no error in law. His findings of fact were supported by the evidence. That being the case, there is no basis on which to reverse the trial decision. The appeal is dismissed. J. G.M. Currie

The appellants were found guilty of breaching a rural municipal bylaw which provides 'That no poultry or livestock be permitted in districts zoned Hamlet [sic].' There were four grounds of appeal: 1) an application to admit new evidence on appeal; 2) a constitutional challenge seeking a declaration that the bylaw was ultra vires for uncertainty; 3) the significance of the word 'hamlet' in the bylaw; and 4) the meaning of the word 'livestock' in the bylaw. HELD: The appeal is dismissed. 1) New evidence will not be admitted on an appeal if, by due diligence, it could have been adduced at trial. Further, new evidence will be admitted only if it bears upon a decisive or potentially decisive issue in the trial. Neither of these requirements is met. 2) The constitutional challenge is not properly before the Court as notice is required when the constitutionality of a bylaw is impugned. In any event, the uncertainty on which the appellants rely in attacking the bylaw does not exist. 3) The appellants misunderstand the use of the word 'hamlet' in the bylaw. 4) Whatever definition of 'livestock' is used, the definition always includes cattle.

9_2007skqb98.txt

J. 531/2005 2006 SKPC 93 IN THE PROVINCIAL COURT OF SASKATCHEWAN (SMALL CLAIMS DIVISION) AT REGINA SASKATCHEWAN Between: KEVIN EBERLE and LINDA BOXALL Defendant Trial Dates: October and 3, 2006 Appearances: Judith Falle For Plaintiff David A. Gerrand Q.C For the Defendant October 10, 2006 BOGDASAVICH, PCJ JUDGMENT CLAIM [1] The plaintiff alleges the defendant has injured his reputation and feelings, and has caused the plaintiff humiliation and distress, through her actions as Reeve of the Council of the Rural Municipality of Sherwood. The plaintiff claims general and aggravated damages of $5000.00 for these injuries. [2] The plaintiff is councillor for the Rural Municipality of Sherwood (“the R.M.”). The defendant is the Reeve of the Council of the R.M. Both the plaintiff and defendant were elected to their positions in November 2004. [3] At the council meeting on January 13, 2005, motion was made to award the contract for building inspection services to MuniCode Services Ltd. (“MuniCode”) the agency which held the existing contract. The plaintiff proposed an amendment to that motion that these services should instead be offered for tender. The amending motion was passed by council. [4] The defendant testified she was subsequently advised by the R.M.’s administrator that the plaintiff was in breach of the Building Bylaw with respect to his residence and that there were outstanding “deficiencies”. The defendant stated that she was concerned that the plaintiff had moved motion to tender MuniCode’s contract when he had failed to comply with that company’s requests to remedy his “deficiencies”. She perceived this to be conflict of interest and sought legal advice from the R.M.’s legal counsel. [5] On February 11, 2005, she received legal opinion Exhibit D-9 as to how to handle the issue respecting the perceived conflict of interest. The advice provided in part: “If the work remains outstanding at the present time Councillor Eberle would appear to have had pecuniary interest at the time of the vote which should have been handled under section 45(1) of the R.M. Act by declaring his interest and by not participating in the discussion and leaving the meeting.” [6] The defendant testified she planned to deal with the issue at the next council meeting and the Agenda for the February 16, 2005, meeting (Exhibit P-3) included an item titled: “MuniCode Building Inspection Deficiency Report 2004". It was agreed by counsel that report titled “Old Permits With Outstanding Deficiencies” was included in the materials provided to councillors prior to the February 16, 2005, council meeting. The report (Exhibit -7) indicates four requests had been sent to the plaintiff by MuniCode to comply with the Building Bylaw (one in each year starting in 2001 and ending in 2004). The four requests from MuniCode to the plaintiff were filed as Exhibits D-1, D-2, D-3, and D-4 during cross-examination of the plaintiff by counsel for the defendant. [7] The plaintiff testified in cross-examination he could not recall having received any of these four requests. His wife usually picked up the mail. He could not recall discussing them with his wife although he conceded he may have had such discussion. He also testified he did not read the agenda or information package for councillors prior to the February 16, 2005, meeting and had no prior notice the issue was on the Agenda or that his deficiencies/conflict of interest was to be discussed. [8] The plaintiff and two other councillors left the meeting before the issue was dealt with. The Minutes of that meeting (Exhibit P-4) indicate the meeting was very confrontational one and that the plaintiff and the two other members of council left at 7:40 p.m. in protest. [9] The item was tabled to be brought forward at the following council meeting on March 23, 2005. The Agenda (Exhibit D-6) for that meeting still described the issue as: “Building Inspection Deficiency Report 2004". The deficiencies report (Exhibit P-7) was again provided to councillors in their advance package of materials. The plaintiff testified he again failed to see the report prior to the meeting as he usually did not receive the information package provided to councillors until just before the meeting. [10] When the agenda item was reached at the meeting, councillor rose and raised “question of Privilege”. The minutes (Exhibit P-5) state as follows: “that we ask if Councillor Eberle [sic] in Conflict of Interest when he moved the amendment and voted on the motions passed January 13, 2005, regarding tendering out of services of MuniCode Building Inspectors as he was listed in the MuniCode Deficiency report as presented to Council. Question of Conflict has been raised with Councillor Eberle. The Reeve shall rule if Councillor Eberle was in fact in Conflict of Interest”. [11] The defendant then called minute recess and consulted privately with legal counsel and the administrator. The minutes then state: “Issue of Conflict of Interest Councillor Eberle, cannot assure that work was or was not completed on his property. Reeve Boxall made decision that perceives there is conflict of interest regard motions passed January 13th, 2005 regarding tendering out services of MuniCode, and Councillor Eberle has conflict on that regard. The Reeve reserved her decision about the ramifications of this action. Reeve asked Councillor Eberle to remove himself from the Chambers at 7:48 p.m. pursuant to Section 45(1) of The Rural Municipality Act, 1989. Councillor Eberle left the Council Chambers.” [12] Conflicting evidence was heard as to the exact discussion that occurred at the meeting. The defendant testified she tried to follow the legal advice provided in the legal opinion of February 11, 2005, but she got “very upset” and felt the meeting was getting out of control so she asked for recess to further confer with counsel. The plaintiff testified he was taken by “total surprise” when the issue was raised. [13] The defendant testified she then requested status report from MuniCode as to whether the plaintiff had complied with the requests to remedy the “deficiencies”. MuniCode’s report (Exhibit D-10) dated April 1, 2005, stated: “The deficient item from our final inspection of March 7, 2001 remains outstanding”. Upon reading this letter the defendant concluded that the plaintiff had “misrepresented the situation” to council by saying he did not know if the deficiencies had been remedied. [14] The defendant then prepared draft letter to the plaintiff in which she advised that until such time as he apologized to council and remedied the “deficiencies” he would “not be recognized by the chair to speak to or move motions”. Legal counsel testified he reviewed this letter and suggested some changes. The final draft of the letter was dated April 15, 2005, (Exhibit P-8), and was handed to the plaintiff just before the April 20, 2005, council meeting. Attached was an excerpt from Procedure Bylaw 03/04 respecting “Council Code of Ethics”. [15] The minutes for the April 20, 2005, council meeting (Exhibit P-6) indicate that the issue of the plaintiff’s sanctions was dealt with by Resolution 154/05. The Reeve read her decision imposing sanctions on the plaintiff. Another councillor immediately moved motion that she be overruled. The motion was defeated four to two. [16] The plaintiff wrote letter to the defendant dated July 15, 2005, (Exhibit P-9). In that letter he questioned his conflict of interest and pointed out that the section of The Rural Municipality Act, 1989, pursuant to which the defendant purported to act in imposing sanctions on him, namely section 45, was limited to conflict of interest situations in which “pecuniary interest” existed. He stated that as he had no pecuniary interest in the matter of the proposed tendering of bids for building inspection services, that the defendant should therefore rescind the sanctions imposed upon him respecting participation in council meetings. [17] The plaintiff received letter dated August 11, 2005, (Exhibit P-10) from legal counsel to the RM which was in response to his letter of July 12, 2005, to the defendant. This letter made reference to section 45 of The Rural Municipality Act, 1989, and purported to explain how the plaintiff had pecuniary interest in the matter of tendering the contract for building inspection services. The letter went on to elaborate on the legal position of the defendant and council with respect to the conflict of interest issue and the sanctions imposed upon the plaintiff. [18] There was an election in some voting divisions of the R. M. in November, 2005, and number of new councillors were elected. Neither the plaintiff’s position nor the defendant’s position were subject to this election. [19] On November 8, 2005, legal counsel acting on the plaintiff’s behalf wrote letter (Exhibit D-11) to legal counsel for the RM, advising that if the defendant did not remove the sanctions imposed upon the plaintiff at the next council meeting set for November 10, 2005, and allow the plaintiff to fully participate in the meeting, the plaintiff would proceed to make an application for judicial review of the defendant’s position and “we will ask for solicitor client costs”. [20] At the Council Meeting of November 10, 2005, the defendant advised the councillors that effective immediately she was removing all restrictions imposed upon the plaintiff at council meetings. [21] On December 15, 2005, the plaintiff commenced this action against the defendant. LEGAL ISSUES [22] The plaintiff alleges that he has sustained injury to his reputation and feelings, and that he has suffered humiliation, distress, and frustration caused by his inability to represent the ratepayers in his division of the Rural Municipality of Sherwood whom he was elected to represent. He alleges the defendant is liable to him upon the following three grounds: 1) that by not permitting the plaintiff to make motions or speak to motions at meetings of the council of the R.M. from April 20, 2005 to November 10, 2005, the defendant infringed the plaintiff’s freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms; 2) that the defendant acted without statutory authority in imposing sanctions upon him and that the defendant caused him harm “in the tort of abuse of public office”; and 3) that the defendant “owed duty of care to the plaintiff to ensure that she had clear and explicit statutory authority for the actions she took against him, and failed to discharge that duty of care and thereby caused harm to the plaintiff in the tort of negligence”. ANALYSIS Charter of Rights [23] The plaintiff has chosen to sue the defendant in her personal capacity and has not added the Rural Municipality of Sherwood or the three councillors who voted to uphold the Reeve’s decision as defendants. It was obvious from the evidence presented to the court that the R.M. council was divided into two factions. Council meetings in 2005, after the plaintiff’s election to council in November 2004, were described by legal counsel to the R.M. as confrontational and tension filled. This was local politics at its rawest and toughest. Accordingly, this lawsuit could be considered private dispute between two politicians that has spilled into the courts and not dispute between an individual and statutory authority. Section 32 of the Charter of Rights and Freedoms provides that it applies only to Parliament and the government of Canada in respect of all matters within the authority of Parliament and to the legislature and government of each province in respect to those matters within the constitutional competence of the legislature of each province. Mr. Justice McIntyre of the Supreme Court of Canada stated in Dolphin Delivery Ltd. v. RWDSU, 1986 CanLII (SCC), [1986] S.C.R. 573, that “The Charter does not apply to private litigation”. As result, it could be argued that the plaintiff’s claim pursuant to the allegation that his freedom of expression has been infringed contrary to section 2(b) of the Charter of Rights and Freedoms should be dismissed. That is, the plaintiff should be suing the R.M. and/or the “Reeve” and the three other councillors who voted to uphold her decision in their capacity as “councillors”. However, because the defendant was acting as Reeve of municipality, statutory body, and acted pursuant to statutory authority in imposing sanctions on another member of council, it is likely that the Charter would apply and, for the purposes of this case, will consider it does apply to the claim. [24] However, even if the defendant’s decision did infringe the plaintiff’s right to expression to some limited extent and could not be upheld pursuant to the sections of The Rural Municipality Act, 1989, relied upon in the R.M.’s legal opinion in the letter to the plaintiff August 11, 2005, and I make no conclusions as to which of the competing legal opinions is correct, I am not prepared to award damages to the plaintiff pursuant to section 24(1) of the Charter for the following reasons. [25] First, section 24(1) of the Charter has been interpreted by the Supreme Court as conferring the widest possible discretion” on the court. am of the opinion it would be neither appropriate or just to impose personal liability on the defendant when she was acting in her capacity as Reeve and she was advised by legal counsel for the R.M. that her decision was authorized by statutory provision. While her decision may have been politically advantageous to her and her supporters in council, it was not without some justification because (1) the plaintiff was in breach of the Building Bylaw, (2) there could be a “perceived conflict of interest” in the eyes of MuniCode and ratepayers in the R.M. in the plaintiff’s tendering motion of January 13, 2005, and (3) the Reeve did have some evidence before her that he had misrepresented the situation to council. [26] Second, the plaintiff did have another remedy open to him which he could have acted upon immediately. He could have applied to the court of Queen’s Bench for judicial review to quash Resolution 154/05 before the next council meeting. [27] Third, the restriction placed on the plaintiff by the defendant was not in his personal capacity. He was free to discuss municipal issues with the ratepayers in his division and within the municipality and with the media and others. He continued to vote on motions. In his testimony, legal counsel for the R.M. stated that the plaintiff “still participated” in council meetings. He had other councillors make motions for him and did considerable amount of talking at council meetings. Little evidence was presented to the court that the plaintiff was greatly impaired by the sanction imposed upon him by the defendant in carrying out his duties as councillor. [28] Fourth, I am not prepared to award damages to the plaintiff and thus enable him to gain a personal benefit from a limitation which only had a small effect on his right to represent his constituents. The dispute between the plaintiff and the defendant is a political one. A court should be reluctant to get involved. The dispute is best left to the ratepayers to deal with at municipal election. Tort of Misfeasance in Public Office [29] The tort of misfeasance in public office has its Canadian roots in the Supreme Court’s decision in Roncarelli v. Duplessis 1959 CanLII 50 (SCC), [1959] S.C.R. 121. This case made “gross abuse of legal power intended to punish” cause of action. In Odhavji Estate v. Woodhouse 2003 SCC 69 (CanLII), [2003] S.C.R. 263 Iacobucci J. stated as follows: am of the opinion that the tort of misfeasance in public office is an intentional tort whose distinguishing elements are twofold: (i)deliberate unlawful conduct in the exercise of public functions; and (ii) awareness that the conduct is unlawful ...... The Saskatchewan Court of Queen’s Bench has applied this test in Country Plaza Motors Ltd. v. Indian Head et al, 2005 SKQB 442 (CanLII), [2005] S.J. No.689. Ball J. stated that one of the necessary elements of this tort was that “......... the public official must have been aware that the conduct was unlawful........” Even if the defendant acted without lawful authority in imposing the sanctions, the defendant had to be aware that her conduct was unlawful. I am satisfied that this requirement has not been met. The defendant was acting on the advice of legal counsel to the municipality and in fact once the April 20, 2005, meeting was completed, all further written communications to the plaintiff from the defendant respecting this issue were from legal counsel to the R.M. There is no evidence, nor even the suggestion, that legal counsel did not act in good faith in providing advice to the defendant. As a result, the plaintiff has failed to establish that the defendant acted with knowledge she had no legal authority to do what she did in imposing sanctions on the plaintiff. The defendant is not liable to the plaintiff pursuant to the tort of misfeasance in public office. Tort of Negligence [30] The plaintiff further relies upon the tort of negligence to claim damages against the defendant. He alleges that the defendant owed him duty of care “to ensure that she had clear and explicit statutory authority for the actions that she took against him”. While it is clear that the plaintiff and defendant were in a relationship that created a duty of care, I find that because the defendant was acting on the advice of counsel when imposing the sanctions upon the plaintiff that she has not breached the standard of care. In short, her actions were not negligent. CONCLUSION [31] The plaintiff’s claim is dismissed.

The plaintiff alleges the defendant has injured his reputation and feelings, and has caused the plaintiff humiliation and distress, through her actions as Reeve of the Council of the Rural Municipality of Sherwood. The plaintiff claims general and aggravated damages of $5,000 for these injuries. Both the plaintiff and the defendant were elected to their positions. The plaintiff is a councillor. The defendant determined that the plaintiff was in a conflict of interest and asked the plaintiff to remove himself from the Chambers pursuant to s. 45(1) of The Rural Municipality Act. There was a further determination by the defendant that the plaintiff had misrepresented his situation to the council. The defendant then prepared a letter to the plaintiff in which she advised that until such time as he apologized to council and remedied the 'deficiencies' that created the conflict of interest he would not be recognized by the chair to speak or to move motions. HELD: The claim is dismissed. 1) Even if the defendant's decision did infringe on the plaintiff's Charter right to expression to some limited extent and could not be upheld pursuant to the section of The Rural Municipality Act (the Court made no conclusions as to which of the competing legal opinions is right) the Court was not prepared to award damages to the plaintiff pursuant to s. 24(1) of the Charter. While the plaintiff's decision might have been politically advantageous to her and her supporters in council, it was not without some justification because the plaintiff was in breach of the Building Bylaw, there could be a perceived conflict of interest, and the Reeve did have some evidence before her that the plaintiff had misrepresented his situation to council. The Court was not prepared to award damages to the plaintiff so he could gain a personal benefit from a limitation which only had a small effect on his right to represent his constituents. The dispute between the parties is a political one. A court should be reluctant to get involved. 2) With regard to the tort of misfeance in public office, even if the defendant acted without lawful authority in imposing the sanctions in order to be actionable, the defendant had to be aware that her conduct was unlawful. This requirement has not been met. The defendant was acting on legal advice from legal counsel to the municipality. There is no evidence, nor even the suggestion, that legal counsel did not act in good faith in providing advice to the defendant. As a result, the plaintiff has failed to establish that the defendant acted with knowledge she had no legal authority to do what she did in imposing sanctions on the plaintiff. 3) With respect to the tort of negligence, the Court found that because the defendant was acting on the advice of legal counsel when imposing the sanctions upon the plaintiff, she has not breached the standard of care. Her actions were not negligent.

c_2006skpc93.txt

nan S.C.A. No. 02392 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION Macdonald, Hallett and Matthews, JJ.A. BETWEEN: SILVER STAR PROPERTIES LIMITED and SHIRLEY DeMERCHANT IMELDA FAJARDO Respondent David P.S. Farrar for the appellant Andrew Pavey for the respondents Appeal Heard: April 10, 1991 Judgment Delivered: April 22, 1991 THE COURT: Appeal allowed, the decision of Judge Cacchione set aside and any order based thereon, and the decision and recommendation of the Board set aside without costs to any party per reasons for judgment of Matthews, J.A.; Macdonald and Hallett, JJ.A. concurring. MATTHEWS, J.A.: This appeal concerns the interpretation of s. 4 of the standard form lease, N.S. Regulation 270/87 made pursuant to s. 26 of the Residential Tenancies Act 1970, c. 13, s. 1 (the Act), and certain sections of the Rent Review Act 1975, c. 56, s. 1. The facts are not in dispute. The parties entered into written year to year lease in standard form which lease commenced on the 1st day of March, 1989, with rent at the rate of $500.00 per month, in respect to property in Halifax. The appellant is the landlord, the respondents the tenants. The appellant increased the rent to $515.00 on May 1, 1989, which increase was somewhat reluctantly accepted by the respondents. By virtue of its terms, the lease would automatically be renewed for further term of one year from March 1, 1990, provided that neither party gave notice of termination to the other at least three months prior to the annniversary date of the lease. Here no such notice was given. However, on January 30, 1990, that is approximately one month prior to the expiration of the lease, the appellant gave to the respondents notice of increase in rent to $580.00 per month, to be effective May 1, 1990. The appellant offered to permit the respondents to terminate the renewed release on three months notice during the term of the lease if they were unhappy with the rental increase. The respondents chose not to exercise this option. The respondents objected to the rental increase and made application to the Halifax and County West Residential Tenacies Board (the Board) for determination as to whether or not that increase was valid. The Board heard the matter on July 10, 1990, and rendered its decision on July 19, 1990. The Board recognized the importance of the issue: "This application raises significant question. May landlord obtain an increase from tenant in the midst of year‑to‑year lease in the standard form, or is the landlord bound to the rent for the year as of the date of the renewal." Section of the lease sets out the rent to be paid for the premises, the time and method of payment and what the rent includes. The only provision in the lease respecting rent increase is contained in that section: "The rent may be increased on three (3) months written notice in accordance with the provisions of the Rent Review Act but not more frequently than once in twelve (12) month period." The relevant provisions of the Rent Review Act considered by the Board are: "Application of Act over tenancy agreement 3(1) This Act applies to all residential premises as defined herein notwithstanding the terms of any tenancy agreement to the contrary. Application of tenancy agreement over Act (2) Notwithstanding subsection (1), where tenancy agreement provides for no rent increase or lesser percentage increase of rent than is provided herein during the rent periods to which this Act applies, then the provisions of the tenancy agreement in respect of rent apply to the residential premises rather than this Act. Notice of rent increase 11(1) Every landlord, prior to increasing the rent of tenant, shall give three months notice of such rent increase to the tenant and deliver copy of the notice to the Secretary to the Commission. Form and content of notice (2) The notice shall be in such form and contain such information as is determined by the Governor in Council by regulation. 1975, c. 56, s. 12." As the Board noted, s. of the lease is reflection of s. 11 of the Act which reads: RENTAL INCREASE Duty of notice of intent to increase rent 11(1) When landlord intends to increase the rent payable in respect of residential premises occupied by or in the possession of tenant, the landlord shall give to the tenant notice in writing stating the landlord's intention to increase the rent and the proposed amount of the increase at least three months before the landlord receives, demands or negotiates an increase in the rent payable by the tenant. Frequency of increase (2) Notwithstanding any other enactment, no landlord shall increase the rent for residential premises more than once in twelve‑month period, whether or not the twelve‑month period includes period of time before the coming into force of this subsection." The Board concluded that it did "not interpret these provisions as granting the landlord the right to demand an increase in rent in the middle of the term" and further, that it could not say "that the standard form of lease really provides rent increase since neither the time nor the amount are specified". It further concluded that the rent should remain at $515.00 per month. It recommended to the Court that the appellant be ordered to pay to the respondents the amount they paid in increased rent, being $195.00. In fairness to the parties the Board commented: "The Board invites an objection. This is an important point and the Board has felt particularly constrained by the necessity of making recommendation within three (3) days”. The appellant filed notice of objection. The matter was heard before the Honourable Judge Felix Cacchione on October 25, 1990. He rendered his decision on November 19, 1990. Judge Cacchione put the issue before him this way: "Did the Board err in law in interpreting the Residential Tenancies Act by concluding that landlord cannot increase the rent during the term of the lease? Put another way the issue is: Does landlord in Nova Scotia have the right under either the Residential Tenancies Act R.S.N.S. 1989, c. 401, or the Rent Review Act, R.S.N.S. 1989, c. 398, to unilaterally demand an increase in rent from tenant with 90 days notice of any stage of the tenancy?" He commented: "The issue is an important one, and indeed this decision will be the first in examining the meaning of s. 11 of the Residential Tenancies Act, and s. 11 of the Rent Review Act. In addition, similar provisions in residential tenancies acts across the country have yet to face judicial interpretation [Alberta Landlord and Tenant Act, R.S.A. 1980, c. L‑6, s. 13; B.C. Residential Tenancy Act, S.B.C. 1984, c. 15, s. 18; Manitoba Landlord and Tenant Act, R.S.M. 1987, c. L‑70, s. 112; Newfoundland Residential Tenancies Act, S.N. 1989, c. 44, s. 17; Saskatchewan Residential Tenancies Act, R.S.S. 1978, c. R‑22, s. 391". In some detail he examined the historical landlord‑tenant relationship which has "its roots firmly planted in the common‑law contract". He stressed that as "with any non‑unilateral contract, the landlord‑tenant contract can only be modified with the consent of both parties." He noted that the the Nova Scotia Legislature established Select Committee on the Law of Landlord and Tenant in 1970. Based upon its recommendations the Legislature in 1970 enacted the Residential Tenancies Act. He remarked: "The Act was enacted with three main purposes in mind: firstly, to codify and protect the rights of the tenant; secondly, to codify the rights of the landlord; and thirdly, to provide fast, efficient and cost‑effective means for dispute resolution thereunder." He considered the effect of the Rent Review Act and said: "Section 11(1) of the Rent Review Act provides that every landlord shall give three months notice of rent increase to the tenant prior to increasing the rent of the tenant. This provision is to be interpreted in the same manner as section 11 of the Residential Tenancies Act, however, its scope is narrower. Section 11(1) of the Rent Review Act, is solely aimed at requiring the landlord to provide notice of increased rent to the tenant prior to the end of the lease so that the tenant can be afforded the opportunity to effectively evaluate the offer for lease renewal before they ultimately decide whether or not to accept the offer or to terminate the Residential Agreement at the expiration of its current term. In other words, just as the tenant is required to give three months notice of termination under s. 10 of the Residential Tenancies Act, the landlord is required to give three months notice of rental increase to the tenant, so that the tenant can make an informed decision about continued leasing of the premises. Once again, it is legislative scheme designed to protect the integrity of the contractual rights of both parties to the lease." Both the appellant and the respondents are bound by the provisions of s. 10(1)(a) of the Act which provides: "Time for notice to quit 10(1) Notwithstanding any agreement between the landlord and tenant respecting period of notice, notice to quit residential premises shall be given (a) where the residential premises are let from year to year, by the landlord or tenant at least three months before the expiration of any such year;" Judge Cacchione concluded: "Consequently, find in favor of the respondents, holding that the three month notice requirements for rental increases under both the Residential Tenancies Act and the Rent Review Act must come at least three months prior to the expiration or possible renewal of the tenancy." It is from that decision that this appeal is taken on the following grounds: "1. THAT the Learned Trial Judge erred in the interpretation of s. 11(1) of the Residential Tenancies Act 1970, c. 13, s. 1; 2. THAT THE Learned Trial Judge erred in his interpretation of s. of the Standard Form Lease N.S. Regulation 270/87 made pursuant to s. 26 of the Residential Tenancies Act. Judge Cacchione based his conclusion "that the three month notice requirement is to come three months before the expiration of the lease period" upon his analysis of the report of the Select Committee. He said "the Act is intended to protect the tenant from being coerced by the landlord into giving up his contractual rights." Lord Reid's statement in Attorney General for Northern Ireland v. Gallagher, [1963] A.C. 349 at p. 366 is instructive when considering whether he was correct in doing so: "We can have in mind the circumstances when the Act was passed and the mischief which then existed so far as these are common knowledge, but we can only use these matters as an aid to the construction of the words which Parliament has used. We cannot encroach on its legislative function by reading in some limitation which we may think was probably intended but which cannot be inferred from the words of the Act.” Indeed s. 12 of the lease sets out: "This lease is for the benefit of the landlord and the tenant...". That is, the provisions of the standard form are not simply for the benefit of the tenant. R. v. Wildsmith (1974), 1974 CanLII 1472 (NS CA), N.S.R. (2d) 64 was concerned with the interpretation of certain provisions of the Gasoline Licensing Act R.S.N.S. 1967, c. 117. At p. 69 Judge Hearn said: "The gist of these decisions (which am citing as have not found this particular hierarchy dealt with elsewhere) is that you apply rules of construction and interpretation only when problem of construction or interpretation arises. If the challenged expression is clear and not in conflict with other provisions of the law, no problem of construction arises and the literal and grammatical meaning according to ordinary usage is applied following the Golden Rule. problem of ccnstruction arises when the provision in question is ambiguous, obscure, in conflict with other provisions of the enactment in question, or with provisions of other enactments, or at odds with the expressed purpose and policy of the legislature." On appeal to this Court (1974), N.S.R. (2d) 58 Coffin, J.A. speaking for the Court said at p. 62: "Judge O'Hearn, after referring to such cases as In Re Halifax City Charter (1967), 53, M.P.R. 22, concluded from them that when the challenged expression is clear 'and not in conflict with other provisions of the law,'the literal and grammatical meaning according to ordinary usage is applied and not rules of construction and interpretation." See also Driedger, The Construction of Statutes, (2d) 1983, at p. 85. Section of the lease is clear. It is not in conflict "with other provisions of the law". It only becomes obscure when words are read into it which the clear meaning does not permit. It is not unusual in contract to provide that certain provision contained therein may be altered during the term of the contract by way of agreement or unilaterally by one of the parties upon certain conditions. It is of importance to keep in mind that here, the landlord could not unilaterally increase the rent to any amount simply by giving the required notice. The increase sought must be subject to the provisions of the Rent Review Act. Judge Cacchione expressed concern for the tenant if the landlord were permitted to increase the rent within the term of the tenancy: "The interpretation of s. 11 as suggested by the appellants goes against the very grain of the object of the Residential Tenancies Act which is to protect the bargaining rights of" both the landlord and the tenant. Moreover, the Act is intended to protect the tenant from being coerced by the landlord into giving up his contractual rights. If landlord is permitted to hide anticipated increases in rent from the tenant, only to sneak the increases in after the tenant is statutorily locked into the agrement for 12 months, then the result serves to violate the well established bargaining rights of the tenant." Section of the standard form of lease sets out the procedure landlord must follow if rent is to be increased. That must be done in accordance with the Rent Review Act. The reference is not to the provisions of the Act. In my opinion reference is to the Rent Review Act in order to provide the protection to the tenant which was the justifiable concern of Judge Cacchione. It is important to note the difference between s. 11 of the Rent Review Act and s. 11 of the Act. Section 11 of the Rent Review Act places strictures on the landlord not contained in s. 11 of the Act. copy of the notice of the rent increase must be delivered by the landlord to the secretary of the Rent Review Commission. The notice must be in "such form and contain such information as is determined by the Governor in Council by regulation". Section 12 of the Rent Review Act provides further statutory protection for the tenant: "Secretary finds rent increase in notice is excessive 12(1) The Secretary to the Commission, upon receiving copy of the notice referred to in Section 11, shall calculate the rent increase and if such rent increase is in excess of that authorized by this Act, the notice is deemed to be an application for increase of rent pursuant to Section and the provisions of Section 10 shall apply to that deemed application. Tenant believes rent increase in notice is excessive (2) If tenant is of the view that the true increase in rent is in excess of that authorized by this Act and within thirty days after receipt of the notice referred to in Section 11 so informs the residential tenancy officer, then the residential tenancy officer shall review the rent increase and the notice is deemed to be an application for increase of rent pursuant to Section and the provisions of Section 10 shall apply to that deemed application. 1975, c. 56, s. 13" Subject to the provisions of s. of the Rent Review Act landlord may increase the rent under ss. and of that Act: “Maximum increase nan Except as provided in Section 9, for any rental period between the first day of January and the thirty‑first day of December, both dates inclusive, in any year, no landlord shall charge tenant an amount of rent which is more than the amount determined by adding to the rent lawfully charged for the same residential premises for the last rental period immediately preceding the first day of January, for which the residential premises were rented, the percentage increase determined by the Governor in Council which percentage increase shall be determined no later than the first day of September in the previous year. 1975, c. 56, s. 9; 1977, c. 75, s. 1. Conditions for increase in excess of maximum nan landlord may increase the rent of residential premises in excess of the percentage increase authorized by Section for the rental periods set forth in Section (a) after first having given three months notice to the tenant, if any, of the residential premises; (b) upon application to the residential tenancy officer at least two months before the date he wishes to increase the rent; and (c) upon being authorized by an order or decision pursuant to either Section 10 or Section 15, as the case may be. 1975, c. 56, s. 10." Section 10 sets out the review procedure by the residential tenancy officer and the factors to be considered in determining whether an increase in rent is to be permitted. It is my opinion that reading of s. 11 of the Act in conjunction with the relevant sections of the Act and in turn considering the wording and effect of s. of the standard form in conjunction with the relevant sections of the Rent Review Act, discloses no ambiguity as suggested by the respondents. The respondents must have been aware of the provisions of s. of the lease between the parties. It clearly provides that rent may be increased on three months written notice in accordance with the provisions of the Rent Review Act. There is nothing in the Rent Review Act or the Act to suggest other than the clear words of s. of the lease, that is, that the landlord may increase the rent on three months written notice. The landlord may not do that "more frequently than once in twelve (12) month period." That latter provision, in my view, reinforces the opinion that the landlord may increase the rent during the yearly tenancy, for it places a restriction upon the common law right of the landlord: the increase may be only once every twelve months. With deference, the provisions under review may not be considered to be ambiguous because of opinions expressed by some members of the Legislature or by the Select Committee or indeed the state of the common law prior to the passing of the legislation. As the respondents say in their factum: "Section of the lease is standard provision of the standard form of lease provided for pursuant to regulations established under the Residential Tenancies Act. This section, the Standard Form Lease and the Residential Tenancies Act, along with the Rent Review Act referred to in the section, all modify the common law position of the parties." After the appellant gave notice to the respondents of the increase in rent in accordance with the provisions of the lease, the respondents have the right in law to complain of that increase as provided by the Rent Review Act. The appellant may increase the rent during the term of the lease, provided three month notice is given and the increase does not offend the provisions of the Rent Review Act. There is no requirement that the only method of increasing the rent be by the landlord giving three months notice to take effect at the expiration of the lease. The landlord had that right without any statutory provision. All the landlord would have to do, three months prior to the expiration of the lease, would be to inform the tenant that the lease was at an end, if the tenant did not agree to certain increase in rent. The landlord could do that, repeat, without the necessity of the words in the relevant provisions. There is no restriction in s. of the lease as to when, during the term of the tenancy such notice must be given. There is no suggestion that such notice must be given three months prior to the termination of the lease to become effective at such termination. Those words should not be read into s. 4. Further, if the intention had been that the notice of rent increase "must come at least three months prior to the expiration or possible renewal of the tenancy", it would have been simple to add words to that effect to s. of the standard form lease. The respondents seek to rely upon s. of the Rent Review Act previously cited. However, here it is not the case that the tenancy agreement did not provide "for no rent increase". On the contrary, the agreement by s. did provide for one. In my opinion the interpretation of the relevant provisions of the Act, The Rent Review Act and the Standard Form of Lease are clear. The landlord may increase the rent during the term of the lease provided the procedures so to do as set out are strictly followed. In consequence, I would allow the appeal, set aside the decision of Judge Cacchione and any order based thereon and set aside the decision and recommendation of the Board, but in the circumstances, without costs to any party. J.A. Concurred in: Macdonald, J.A. Hallett, J.A. PROVINCE OF NOVA SCOTIA COUNTY OF HALIFAX C.H. 70655 IN THE COUNTY COURT OF DISTRICT NUMBER ONE BETWEEN: SILVER STAR PROPERTIES LIMITED, and SHIRLEY DeMERCHANT IMELDA FAJARDO, Respondents David P.S. Farrar, Esq., solicitor for the applicant Andrew Pavey, Esq., solicitor for the respondents. 1990, November 19, Cacchione, J.C.C.:‑ This case involves notice of objection filed against recommendation of the Halifax and County West Residential Tenancies Board dated July 13, 1990. The facts as found by the Residential Tenancies Board are that the tenants entered into year to year lease in the standard form with respect to the premises in question on March 1, 1989. The rent provided for in the lease was $500.00 per month. The lease was automatically renewable at the expiration of the term unless either the landlord or the tenant had provided at least three months notice to terminate prior to the anniversary date of the lease. In the present case no such notice was given and the lease automatically renewed itself as of March 1, 1990. Despite the specific provision with respect to rent payable contained in the lease, the rent was raised from $500.00 per month to $515.00 per month effective May 1, 1989. This was three percent guideline increase on the base rent which was accepted, albeit apparently S.C.A. No. 02392 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION BETWEEN: SILVER STAR PROPERTIES LIMITED and SHIRLEY DeMERCHANT IMELDA FAJARDO Respondent REASONS FOR JUDGMENT BY MATTHEWS, J.A.

The issue in this appeal was whether a landlord can give notice of a rental increase at any time during a yearly tenancy under the Standard Form Lease. Section of the lease provides for increases upon months notice to the tenant. The trial judge found that notice must be given months prior to the expiration of the lease. For the appellant, that notice of a rental increase may be given at any time during a yearly tenancy under the Standard Form Lease.

e_1991canlii2551.txt

PCJ QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2006 SKQB 335 Date: 2006 07 20 Docket: Q.B. 918/2006 Judicial Centre: Saskatoon BETWEEN: IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON WAL-MART CANADA CORP., and SASKATCHEWAN LABOUR RELATIONS BOARD, and UNITED FOOD AND COMMERCIAL WORKERS, LOCAL 1400 J.R. Beckman, Q.C. and C.A. Sloan for the applicant M.A. Baldwin for the respondent D.S. Plaxton for the United Food and Commercial Workers, 1400 D.A. McKillop, Q.C. for the Attorney General for Saskatchewan K.C. Wilson for Foot Locker Canada Inc. M.D. Nolin for certain employees of the applicant at Weyburn FIAT GEREIN, J. July 20, 2006 [1] There are three applications. The first motion was brought by the applicant, Wal-Mart Canada Corp., which seeks an order: (a) pursuant to Queen’s Bench Rule 664 and 673 prohibiting the Saskatchewan Labour Relations Board as presently constituted from hearing and/or making any orders involving Wal-Mart Canada Corp. or until further Order of this Honourable Court; and (b) costs of the within application. [2] The other two applications are brought by United Food and Commercial Workers, Local 1400 which was added as party with the consent of the applicant. In the one motion the Union seeks an order striking and removing virtually all the material filed in support of the application. In the other, the Union applies for an order dismissing Wal-Mart’s motion. [3] I have concluded that the relief sought by the Union should be granted and that the application brought by Wal-Mart Canada Corp. should be dismissed. [4] To put the applications into context, it is necessary to outline the circumstances. Although there is no admissible evidence before me, believe my account is accurate. [5] One Walter Matkowski is a former vice-chairperson of the Saskatchewan Labour Relations Board. His term expired on March 1, 2006, and was not renewed. He maintains this came about through the influence of certain unions with the Department of Labour. In consequence, he commenced an action for damages alleging wrongful conduct by the Government of Saskatchewan. [6] He also participated in an interview in which he suggested that the Department of Labour interfered with the operation of the Board. An example he gave was that the Department required members of the Board to read the newsletter of the Saskatchewan Federation of Labour. Articles in that publication were critical of him. Other articles in the same publication were critical and disparaging of Wal-Mart. The matter was discussed in the Saskatchewan Legislature. When Wal-mart became aware of these circumstances it filed this application. [7] It is Wal-Mart’s position that the actions of the Unions, the interference by the Government and the presence of certain publications demonstrate that the Saskatchewan Labour Relations Board is biased or, at the very least, there is justification for a reasonable apprehension of bias against Wal-Mart. It is argued that the only way to rectify the situation is to prohibit the Board from holding hearings which involve Wal-Mart. THE MATERIALS FILED BY WAL-MART [8] begin with the affidavit of one Terry Stanley, sworn on June 15, 2006, filed in support of the application by Wal-Mart. It contains only three paragraphs but is four pages in length because it contains lengthy list of exhibits. The reader will best understand the affidavit if it is quoted in full. I, TERRY STANLEY, of the City of Moose Jaw, in the Province of Saskatchewan, Store Manager, MAKE OATH AND SAY AS FOLLOWS: 1. THAT am the Store Manager at Wal-Mart Canada Corp. department store in Moose Jaw, Saskatchewan, and as such, have personal knowledge of the facts and matters herein deposed to, except where stated to be on information and belief, and where so stated, verily believe the same to be true. 2. Attached hereto and marked as exhibits to this Affidavit are: (a) Exhibit “A” is copy of the profile of Deb Higgins, former Minister of Labour for the Government of Saskatchewan from the Government of Saskatchewan website. (b) Exhibit “B” is copy of the profile of Deb Higgins, former Minister of Labour for the Government of Saskatchewan from the Caucus website. (c) Exhibit “C” is copy of membership and contact list from the Saskatchewan Federation of Labour website. (d) Exhibit “D” is copy of Saskatchewan Federation of Labour Newsletter dated January, 2003. (e) Exhibit “E” is copy of Saskatchewan Federation of Labour Newsletter dated September, 2003. (f) Exhibit “F” is copy of Saskatchewan Federation of Labour Newsletter dated October, 2003. (g) Exhibit “G” is copy of Saskatchewan Federation of Labour Newsletter dated December, 2003. (h) Exhibit “H” is copy of Saskatchewan Federation of Labour Newsletter dated February, 2004. (i) Exhibit “I” is copy of Saskatchewan Federation of Labour Newsletter dated March, 2004. (j) Exhibit “J” is true copy of the Saskatchewan Federation of Labour Newsletter dated April, 2004. (k) Exhibit “K” is copy of an application to the Saskatchewan Labour Relations Board dated July 20, 2004 from the United Food and Commercial Workers’ Union, Local 1400. (l) Exhibit “L” is copy of Saskatchewan Federation of Labour Newsletter dated September, 2004. (m) Exhibit “M” is copy of Saskatchewan Federation of Labour Newsletter dated October, 2004. (n) Exhibit “N” is copy of Saskatchewan Federation of Labour Newsletter dated December, 2004. (o) Exhibit “O” is copy of Decision from the Saskatchewan Labour Relations Board dated January 20, 2005. (p) Exhibit “P” is copy of letter dated February 16, 2005 from the Saskatchewan Labour Relations Board addressed to McKercher McKercher Whitmore LLP, Plaxton Gillies, Baker McKenzie LLP, and MacPherson Leslie Tyerman LLP. (q) Exhibit “Q” is copy of Saskatchewan Federation of Labour Newsletter dated March, 2005. (r) Exhibit “R” is copy of Saskatchewan Federation of Labour Newsletter dated May, 2005. (s) Exhibit “S” is copy of Saskatchewan Federation of Labour Newsletter dated June, 2005. (t) Exhibit “T” is copy of Saskatchewan Federation of Labour Newsletter of October, 2005. (u) Exhibit “U” is copy of an article from the Regina Leader-Post newspaper dated May 6, 2006. (v) Exhibit “V” is copy of an article from the Regina Leader-Post newspaper dated May 11, 2006. (w) Exhibit “W” is copy of an article from the Saskatoon Star-Phoenix newspaper dated May 18, 2006. (x) Exhibit “X” is copy of letter dated May 25, 2006 from McKercher McKercher Whitmore LLP addressed to the Saskatchewan Labour Relations Board. (y) Exhibit “Y” is copy of letter dated May 31, 2006 from the Saskatchewan Labour Relations Board addressed to McKercher McKercher Whitmore LLP. (z) Exhibit “Z” is copy of letter dated June 1, 2006 from the Saskatchewan Labour Relations Board addressed to McKercher McKercher Whitmore LLP. (aa) Exhibit “AA” is copy of letter dated June 5, 2006 from Plaxton Gillies addressed to the Saskatchewan Labour Relations Board. 3. make this Affidavit in support of an application for an Order prohibiting the Saskatchewan Labour Relations Board as presently constituted from hearing and/or determining any matter and/or making any Orders involving Wal-Mart Canada Corp. or until further Order of this Honourable Court. [9] The remaining material filed by Wal-Mart consists of the following documents annexed to its memorandum of argument. (1) extracts from Hansard; (2) an unsigned draft affidavit of one Walter Matkowski with 39 exhibits attached; (3) transcript of "John Gormley Live" radio broadcast on May 8, 2006; and (4) copy of the statement of claim in Walter Matkowski v. Government of Saskatchewan et al., filed in Saskatoon on May 10, 2006. APPLICATION TO STRIKE THE MATERIAL [10] Queen’s Bench Rule 319 explicitly states what may be contained in an affidavit. 319. Affidavits shall be confined to such facts as the witness is able of his own knowledge to prove, except on interlocutory motions, on which statements as to his belief, with the grounds thereof, may under special circumstances be admitted. The exception in Rule 319 does not apply here. Even if Wal-mart had filed an interlocutory motion, which it did not, Mr. Springer does not attest to anything based on information and belief. Rather, he swears that he has ". personal knowledge of the facts and matters herein deposed to He then goes on to swear in paragraph that various exhibits are attached to his affidavit. What does that achieve? [11] It does nothing more than compel the court to examine the exhibits to determine their admissibility. To put it another way, Mr. Springer does no more than prove that copies of 27 documents are attached as exhibits to his affidavit. He says nothing in his affidavit about the content of the documents. He discloses nothing about their authenticity or where they originated; and above all he offers nothing about whether the information they contain is true, accurate or reliable. [12] Even taking generous approach, must reject some of the exhibits out of hand. The profiles of the former Minister of Labour (Ex. “A” and “B”) and the membership list (Ex. “E”) are obviously not relevant. The copies of correspondence, (Ex. “P”, “Y”, “Z” and “AA”) equally are not relevant. [13] On the other hand, the newsletters, being 14 in number (Ex. (“D”) to (“F”), (“M), (“N”) and (“Q”) to (“T”) are admissible to prove that they exist and to prove what they contain. The same can be said about the application to the Board (Ex. “K”), the decision (Ex. “O”) and the three newspaper articles (Ex. “L”, “M” and “N”). However, none of these exhibits are admissible to prove the accuracy or truth of what they contain. [14] The same must be said about the transcript of the radio broadcast. It is attached to an affidavit of one Ryan Kraikas who attests that he prepared the transcript. That does nothing more than prove he performed that task. It says nothing about the accuracy, truth or reliability of what is contained in the transcript. [15] The affidavit of Walter Matkowski and his statement of claim have no value. The first is not sworn and as such is not admissible. The second is nothing more than allegations by plaintiff in pleading the validity of which have not been tested. The same is true of the defence filed denying Mr. Matkowski’s claim. am mindful of the old adage that "pleadings are nothing more than legalized lies". The truth will not be known until there has been trial. [16] It is argued on behalf of Wal-Mart that this court should follow the principled approach to the admissibility of the various documents and admit them into evidence on the basis of necessity and reliability. Reference is made to TELUS Communications Inc. v. Telecommunications Workers Union, 2005 FCA 262 (CanLII), [2005] F.C.J. No. 1253. disagree, as the documents meet neither requirement. [17] There is no necessity for their admission. Mr. Matkowski is around and about. He must be available to swear an affidavit. The critical allegations originate with him. Absent any explanation for his absence, there is no basis upon which to conclude that it is necessary to accept the proferred documents as evidence. [18] Reliability presents an equal problem. Nothing is under oath. Since everything attributed to Mr. Matkkowski has an aura of self-interest, it does not generate confidence in its reliability. At no time have the allegations been tested for accuracy and truthfulness. In reality, contradictions are found within the very documents. good example is the Leader Post article of May 11, 2006 (Ex. “V”). It reports Mr. Matkowski as saying that members of the Board are required to read the Labour Reporter newsletter. Two paragraphs later spokesperson for the Department of Labour is reported as saying the Board has no required reading. It is impossible to say which account is true. [19] Finally, there are the extracts from Hansard. They are admissible by reason of s. The Saskatchewan Evidence Act, S.S., c. C-16. Publications in The Saskatchewan Gazette and all copies of the statutes of the province, the journals of the Legislative Assembly, sessional papers and all other documents printed or purporting to be printed by the Queen’s Printer shall be deemed to be authentic and make proof of their contents without other evidence; That provision enables the extracts to be filed to prove what was said, but not as proof that the remarks were true. They are two entirely different things. [20] In the end, the only documents which are properly before me are the exhibits to the affidavit of Terry Stanley, as identified above, and that is so only to the extent that it is proven that they exist. The same applies to the extracts from Hansard and the transcript of the radio broadcast. [21] It is alleged that there was interference with the Board and that it was required to read publications which were highly disparaging of Wal-Mart. Yet there is absolutely no evidence before this court to prove the allegations. [22] The many newsletters contain negative comments about Wal-Mart. However, there is no admissible evidence to prove that these newsletters were provided to the Board or, much more importantly, that any member actually read them. In the same vein, Mr. Matkowski has not come forward to assert his allegations under oath. [23] Without such evidence it is impossible to conclude that bias exists within the Saskatchewan Labour Relations Board or that there is justification for a reasonable apprehension of bias. To conclude otherwise, this court would be acting on pure conjecture or fantasy. That is not good enough. CONCLUSION [24] In the result, the application of Wal-Mart Canada Corp. is dismissed. The Union will have its taxable costs, but only of the application by Wal-Mart and the Union’s application to strike the material filed. The Board will have no costs.

FIAT: The former vice-president of the Saskatchewan Labour Relations Board commenced an action for damages alleging wrongful conduct by the Government of Saskatchewan. He alleges his term was not renewed through the influence of certain unions with the Department of Labour. He participated in an interview where he suggested that the Department of Labour required members of the Board to read the newsletter of the Saskatchewan Federation of Labour. When Wal-Mart became aware of these circumstances, it filed this application. Wal-Mart alleges the Board is biased or, at the very least, there is justification for a reasonable apprehension of bias against Wal- Mart. It argues that the only way to rectify the situation is to prohibit the Board from holding hearings involving Wal-Mart. The Union applies pursuant to Rule 319 of the Queen's Bench Rules to strike almost all the material filed by Wal-Mart. HELD: The application of Wal-Mart is dismissed. The Union will have taxable costs, but only of the application by Wal-Mart and the Union's application to strike the material filed. 1) The affidavit filed by Wal-Mart swears that the affiant has 'personal knowledge of the facts and matters herein deposed to' and then he goes on to swear that various exhibits are attached to his affidavit. This achieves nothing more than compel the court to examine the exhibits to determine their admissibility. The affiant does nothing more than provide copies of 27 documents. 2) There is no necessity for the admission of the documents. There is no basis upon which to conclude that it is necessary to accept the proffered documents as evidence. 3) It is alleged there was interference with the Board and that it was required to read publications which were highly disparaging of Wal-Mart. Yet there is absolutely no evidence before the court to prove the allegations. Many newsletters contain negative comments about Wal-Mart. However, there is no admissible evidence to prove that these newsletters were provided to the Board, or that any member actually read them. Mr. Matkowski has not come forward to assert his allegations under oath. Without such evidence, it is impossible to conclude that bias exists within the Saskatchewan Labour Relations Board or that there is justification for a reasonable apprehension of bias. To conclude otherwise, this court would be acting on pure conjecture or fantasy. That is not good enough.

c_2006skqb335.txt

J. 1999 SKQB 29 Q.B.G. A.D. 1999 No. 128 J.C.M. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF MELFORT BETWEEN: KINGFISHER INNS LIMITED, RATZLAFF HOLDINGS LIMITED, TOBIN LAKE MOTEL LIMITED, DENNIS AND RAE COOPER operating under the firm and style of NIPAWIN MOTOR INN and ELAINE and ERVIN JOHNSON operating under the firm and style of GREEN GROVES MOTEL and TOWN OF NIPAWIN RESPONDENT L.M. Balicki for the applicants J.W.R. Taylor, Q.C. for the respondent FIAT GEREIN J. August 26, 1999 [1] Pursuant to Queen’s Bench Rule 664(1), the applicants seek an order prohibiting the respondent: a) from holding public hearing with respect to Bylaw 756/99, Bylaw to amend Bylaw 465/82, the Zoning Bylaw of the Town of Nipawin; b) from giving third reading to and adopting Bylaw 756/99; c) from holding hearing with respect to an alleged application for discretionary use permit by Kathy and Gary Palidwar for new hotel development; and d) from further considering an application for discretionary use permit by Kathy and Gary Palidwar for private hotel development connected with the community facility known as the Evergreen Centre. The two issues to be determined are:(a) Were the respondent’s proceedings in respect to a proposed hotel development, including the subject bylaw, invalid by reason of bad faith?(b) Has the respondent met the statutory prerequisites for a public meeting? have concluded that the requested relief should be granted in part. [2] The respondent, the Town of Nipawin, is community of some 5,000 people located in northeastern Saskatchewan. The applicants are hoteliers who operate five of the six hotels and motels within the community and who have joined together in an informal association. The River Inn is the sixth place of lodging within the Town and is not party to this application. [3] The Town owns recreation and sports centre, known as the Evergreen Centre, which is located within the Town’s boundaries. proposal has been submitted to develop new hotel in close proximity to the Evergreen Centre. To that end the Town Council has taken certain steps to bring the proposal to fruition. These include tentative sale of public lands and the introduction of Bylaw 756/99. The applicants are opposed to the development and take exception to what has transpired to this point. [4] The chronology of events begins in 1987. In April of that year lengthy report entitled, “Nipawin Tourism Destination Strategy”, was provided to the Nipawin Economic Development Committee. That report discussed many subjects, one of which was the availability and quality of accommodation. The competing parties read the report differently. The applicants say that it recommended no more than improving the quality of existing accommodation. The respondent says that it recommended increased accommodation. agree with the latter upon reading of the following which is to be found at p. 26 of the report: Despite the potential negative impact of new hotel/motel on existing establishments and the challenge associated with achieving strong profitability in the local/regional market, it can be concluded that new establishment offering first-class accommodation, leisure activities such as an indoor pool and active participation in promoting Nipawin as destination for wide variety of tourists and visitors, would be major asset to the area’s tourism base. This report also suggested it would be advantageous to locate any such facility close to the Evergreen Centre. [5] Following receipt of the report the Economic Development and Promotions Officer of the Town of Nipawin promoted the construction of new hotel which could well operate in conjunction with the Evergreen Centre. However, nothing materialized. On April 1, 1992, the Town Council discussed the prospects of new hotel being constructed and on April 14, 1992, the topic was again discussed at joint meeting with the Evergreen board of directors. In the end, the matter was referred to the Economic Development Committee with the suggestion that it be advertised as business opportunity. This was done, but no developer came forward. [6] On February 12, 1997, the Economic Development Committee hosted an Economic Development Round Table and one of the comments in the written summary is that the Committee get out the word about the opportunities for an RV park or hotel near Evergreen Centre. Lastly, there is document entitled, “Nipawin Strategic Planning”, which is dated June 23, 1998. Goal #1 is to increase tourism activity in the area and one of the steps recommended is “to increase conference and convention occupancy” and for that purpose to “encourage hotel expansion and re-investment”. [7] From the foregoing it is clear that the idea of new hotel, together with it being located near the Evergreen Centre, is one of long duration. In addition, the idea was well known throughout the Town of Nipawin as from time to time it was topic in the local newspaper. Against that background turn to the current events which have resulted in this application. [8] It all began with the following letter of April 9, 1999, sent by Gary Palidwar and Kathy Palidwar to the Mayor and Council of Nipawin: Please accept this letter as request to meet with Nipawin Town Council, Monday April 12. We would need approximately one hour of Councils’ time in order to make presentation for new business venture in out (sic) town which will involve an existing public facility. This project has been strictly confidential to this point therefore we will require an in camera meeting with Town Council. Gary Palidwar is one of five shareholders in 622659 Saskatchewan Ltd. which owns the River Inn, which was mentioned earlier as being hotel located in Nipawin. Two of the other shareholders are Glen Day and Allan Mochoruk, respectively, the mayor of the Town and an alderman on Council. [9] The Palidwars attended the Council meeting on April 12, 1999, and “in camera” presented their proposal to construct hotel as an addition to the Evergreen Centre. The proposal appeared to elicit some support, but the Palidwars were instructed to meet with the Regional Park Board and the Evergreen Centre Board and thereafter return to Council. It was agreed that the fact of the proposal would be kept confidential. [10] At the next meeting of Council, which was on April 26, 1999, the Palidwars again attended and another “in camera” discussion took place with the Committee-of-the-Whole. Following that, the Council meeting continued and it was then moved by Alderman Mochoruk: That we agree in principle to proposal from Gary and Kathy Palidwar for private development on Town property adjacent to the Evergreen Centre. CARRIED Mayor Day voted in favour of the resolution. The Palidwars then met with the directors of the Evergreen Centre on April 28, 1999. An article about the proposed hotel appeared on May 5, 1999 in the Nipawin Journal. That is when the applicants first learned of the project and they responded with paid announcement in the same newspaper wherein they set forth their objections to the project. [11] The next meeting of Council was May 25, 1999. When the hotel project came up for discussion Mayor Day and Alderman Mochoruk read statement into the minutes denying any conflict of interest. However, they chose to withdraw from the meeting and did so. The group opposed to the project presented their objections and closed with these questions: 1. Now that Mayor Day and Alderman Mochoruk have excused themselves from further discussions will the original motion to accept the proposal in principle be declared null and void? Deputy Mayor Snaith advised that the issue has not been discussed. 2. When similar issue was before Council six years ago, you must have known there would be some backlash. Will Council have an open debate on the issue? 3. How is it possible to attach private facility to public facility? Council needs to examine this. 4. Does Council believe this proposal provides level playing field? If so, based on what research? 5. What is fair market value? 6. If the project goes ahead, will the existing hotels be given review of their tax assessments? After the Palidwars spoke in favour of the project, the matter was taken under advisement by Council and the parties were invited to stay for the rest of the meeting. The group in opposition departed and as result the proposal was not dealt with later in the meeting, which would have been the usual procedure. [12] At the next meeting on June 14, 1999, the Palidwars presented somewhat different proposal. The hotel was to be located across the street from the Evergreen Centre as opposed to being adjacent to it. It was suggested that walkway be constructed between the two structures. At this meeting Council declined to answer the six questions posed at the earlier meeting. Without discussion or debate the earlier resolution approving the proposal as quoted above was rescinded and this resolution was passed: That the second proposal submitted by Gary and Kathy Palidwar for development of hotel on Town property across the street from the Evergreen Centre be approved in principle; Further That the issue of developing price for land be referred to the Committee-of-the-Whole. Mayor Day and Alderman Mochoruk were absent throughout the discussion and the vote. [13] After the above resolution was passed, the opposition group departed. However, later that same evening the Committee-of-the-Whole met and determined selling price. They then adjourned out of committee and Council passed this resolution: THAT we offer to sell Lots and 7, Block 14, Plan CM 6842 to Gary Kate Palidwar for price of $53,200.00 plus GST for their proposed hotel development; FURTHER THAT they be responsible for all legal, survey and service costs to the hotel plus all costs related to any re-routing or replacement of existing water and sewer services, pavement, curb and gutter; AND FURTHERMORE THAT we carry on negotiations with the developers on the proposed walkway. Mayor Day and Alderman Mochoruk again excused themselves from the discussions about the selling price and the vote on the resolution to make the stated offer to the Palidwars. By letter dated June 22, 1999, the Palidwars responded as follows: Upon review of the motion at regular Council June 14, 1999, to sell lots and 7, block 14, Plan CM 6842, we are prepared to provide deposit in trust to secure this property. However, we also request private meeting with Council to negotiate the following points as conditions of the sale. 1) clarification of “all related costs to any re-routing or replacement of existing water and sewer, pavement, curb and gutter.” 2) agreements must be in place regarding the required walkway access. 3) all necessary zoning, permits and regulations to be addressed. 4) understanding of future intended use for adjacent property. [14] At the next meeting of Council, on June 28, 1999, several things took place. First, in the absence of Mayor Day and Alderman Mochoruk, the Palidwars accepted the Town’s offer to sell land, subject to clarification about the matters raised in their letter. They then requested private meeting to discuss the issues and Council referred the matter to the Committee-of-the-Whole. Later the Committee met “in camera” and then reported out as follows as recorded in the minutes: 35. RISE AND REPORT: BRUCE: THAT we rise and report. CARRIED Deputy Mayor Snaith reported that discussions were held with Gary and Kathy Palidwar on clarification of other costs for land acquisition for their proposed hotel development. Mayor Day and Alderman Mochoruk were excused from the meeting during discussions with the Palidwar’s. Shortly after, in that same meeting of Council, these two resolutions were passed: 39. DISCRETIONARY USE PERMIT REQUEST PALIDWARS: Mayor Day and Alderman Mochoruk were excused from the meeting. Deputy Mayor Snaith assumed the Chair. BRUCE: THAT the request from Gary and Kathy Palidwar for discretionary use permit for development of hotel on Lots and 7, Block 14, Plan CM 6842 be advertised for two successive weeks for public input and to be considered at Special Meeting of Council to be held July 26, 1999 at 7:30 p.m. 40. AGREEMENT DEVELOPMENT OF WALKWAY, ETC. FOR PROPOSED HOTEL: MOISAN: THAT the Town Administrator be authorized to meet with our Town Solicitor to discuss terms and prepare draft agreement with Gary and Kathy Palidwar for development of walkway from their proposed hotel to the Evergreen Centre site, on the understanding that the proposed walkway will not be attached to the Evergreen Centre building. CARRIED Mayor Day and Alderman Mochoruk returned to the meeting. Mayor Day resumed the Chair. To date the indicated agreement has not been prepared. [15] Earlier in the same Council meeting Bylaw 754/99 was given first and second reading. This was recorded in the minutes as follows: 32. BYLAW 754/99 INTRODUCTION FIRST READING: SNAITH: THAT Bylaw 754/99 being bylaw to amend Bylaw 465/82 known as the Zoning Bylaw be introduced and read first time. 33. BYLAW 754/99 SECOND READING: MOISAN: THAT Bylaw 754/99 being bylaw to amend Bylaw 465/82 known as the Zoning Bylaw be read second time. CARRIED Both Mayor Day and Alderman Mochoruk were present and voted in favour of the bylaw. The next day the applicants received by letter responses to the questions which had been posed to Council on May 25, 1999. [16] Public notice of the amending bylaw was published in the Nipawin Journal and notice was given of public hearing to be held on July 26, 1999. Because the notice was two days less than that required by statute, the meeting was cancelled. As result, Town Council held special meeting on July 26, 1999, in the course of which two bylaws were given first and second reading. The events are recorded in the minutes in this way: 23. BYLAW NO. 755/99 INTRODUCTION FIRST READING: SKLAR: THAT Bylaw No. 755/99 being bylaw to amend Bylaw 465/82, known as the Zoning Bylaw, be introduced and read first time. 24. BYLAW NO. 755/99 SECOND READING: MOCHORUK: THAT Bylaw No. 755/99 being bylaw to amend bylaw 465/82, known as the Zoning Bylaw, be read second time. CARRIED Mayor Day Alderman Mochoruk were excused from the meeting. 25. BYLAW NO. 756/99 INTRODUCTION FIRST READING: BRUCE: THAT Bylaw No. 756/99, being bylaw to amend Bylaw No. 465/82, known as the Zoning Bylaw, be introduced and read first time. 26. BYLAW NO. 756/99 SECOND READING: TRANN: THAT Bylaw No. 756/99, being bylaw to amend Bylaw No. 465/82, known as the Zoning Bylaw, be read second time. CARRIED Mayor Day and Alderman Mochoruk returned. Bylaw 755/99 is in respect to an unrelated project. have included it here because its content was also part of the earlier Bylaw 754/99 as was the content of Bylaw 756/99. The earlier Bylaw was simply split into the two present ones. [17] Public notice of Bylaw 756/99 was published in the Nipawin Journal on August 4, 1999, and notice was given of public meeting to be held August 30, 1999. Notice of an intention by Council to consider, on that same day 15 minutes later, request by Palidwars for discretionary use was published adjacent to the bylaw notice. [18] If enacted, Bylaw 756/99 will amend the existing zoning bylaw by changing an area, consisting of eight lots, which now is described as “open space” to “community service” and “discretionary uses”. It is this bylaw and the request for approval of discretionary use, i.e. construction of hotel, which are under attack in this application. [19] Section 90 of The Urban Municipality Act, 1984, S.S., c. U-11, empowers electors to apply to this Court to quash bylaw or resolution of council “. in whole or in part for illegality .”. The challenge can take number of forms, including an application for prohibition as contemplated by Queen’s Bench Rule 664(1). In Pappenfus, Board of Governors of The Spalding Union Hospital et al. v. Pearce, 1980 CanLII 2301 (SK CA), [1981] W.W.R. 291 (Sask. C.A.), at p. 295, Culliton, C.J.S. said this: The right to question the validity of municipal by-law or resolution other than by motion to quash, in my opinion, is correctly stated in Rogers, The Law of Canadian Municipal Corporations, 2nd ed. (1971), vol. 2, para. 192.1, as follows: “It is well established that the validity of municipal by-laws and resolutions may be incidentally questioned otherwise than by motion to quash. In particular, by-law may be brought into question in the following ways: by motion to quash or an appeal from conviction thereunder; by an action for declaration that by-law is invalid; incidentally in the trial of an action; by an action to declare assessments invalid under the by-law attacked; in proceedings to obtain mandamus; in proceedings to obtain prohibition or certiorari; by an action for trespass against an officer acting under its authority; or in an action for an injunction to restrain the breach of by-law or to restrain the municipality from enforcing or acting under the by-law; in an action for replevin; or in an arbitration to determine compensation for expropriated land.” (The italics are mine) These comments were most recently adopted in E.C. Argue Holdings Ltd. et al. v. Rural Municipality of Edenwold No. 158, 1999 CanLII 12500 (SK QB), [1999] S.J. 48 (Q.L. Q.B.). [20] In this case there are some facts which are in issue. This has caused me to give thought to whether the matter should proceed by way of the trial of an issue. have concluded that such is not necessary. ISSUE OF BAD FAITH [21] municipal council and its individual members have duty to always act in good faith. Should they fail to do so, their enactments are nullity. The onus of proving bad faith lies with those who allege it. Mr. Justice Estey said it this way in Kuchma v. The Rural Municipality of Tache, 1945 CanLII 27 (SCC), [1945] S.C.R. 234 at p. 239: These conclusions, however, do not dispose of the case. by-law which has not been passed by municipal corporation in good faith and in the public interest, when passed is nullity, and cannot be changed or made otherwise by lapse of time, approval, registration or promulgation. Canada Atlantic Railway Co. v. Corporation of the Township of Cambridge (1). The appellant here contends that the “by-law is not in the public interest” and further, that the council acted “in bad faith and through fraud and partiality”. The authorities are clear that the onus of proving these allegations rests upon the applicant. They are equally clear that if the applicant succeeds in proving these allegations, the by-law is invalid. useful discussion of bad faith is contained in Re Equity Waste Management of Canada et al. and Corporation of the Town of Halton Hills (1997), 1997 CanLII 2742 (ON CA), 35 O.R. (3d) 321 (Ont. C.A.) commencing at p. 340: Bad faith by municipality connotes lack of candour, frankness and impartiality. It includes arbitrary or unfair conduct and the exercise of power to serve private purposes at the expense of the public interest: see Makuch, Canadian Municipal and Planning Law (Toronto: Carswell, 1983) at pp. 215-19. The signs of bad faith were discussed in the following passage in Howard v. Toronto (City), supra, at pp. 574-75, cited by the motion judge: The Court is prohibited from quashing by-law on the ground of unreasonableness, real or supposed, provided the council in passing it acted in good faith, but the unreasonableness of the by-law may be given in evidence to establish want of good faith in the council who passed it: Consolidated Municipal Act, 1922, sec. 249, subsec. (originally enacted in 1913). The powers of the council must be exercised bona fide, and the action of its members must not be founded upon fraud, oppression, or improper motives: ... and as to refusal to hear interested parties by-law may be quashed if the council in passing it was not using its power in good faith in the interest of the public, but simply to subserve the interests of private persons ... where the principle of In re Morton and City of St. Thomas is recognised by the Court of Appeal as continuing unaffected by the statute of 1913. What is or is not in the public interest is matter to be determined by the judgment of the municipal council; and what it determines, if in reaching its conclusion it acted honestly and within the limit of its powers, is not open to review by the Court (Citations omitted) The more recent judgment of Robins J. in H.G. Winton Ltd. v. North York (Borough) (1978), 1978 CanLII 1566 (ON SC), 20 O.R. (2d) 737 at pp. 744-45, 88 D.L.R. (3d) 733 (Div. Ct.), contains similar but perhaps even broader definition of bad faith: To say that council acted in what is characterized in law as “bad faith” is not to imply or suggest any wrongdoing or personal advantage on the part of any of its members: Re Hamilton Powder Co. and Township of Gloucester (1909), 13 O.W.R. 661. But it is to say, in the factual situation of this case, that Council acted unreasonably and arbitrarily and without the degree of fairness, openness, and impartiality required of municipal government [22] The applicants submit that the Town Council has acted in bad faith and in support of their submission point to these several indicia: (1) lack of openness, frankness and candor; (2) advancement of the interests of private individuals rather than the public interest; (3) the selling price of the land is not reasonable; (4) there is pre-existing commitment to the hotel project; and (5) officials of Council had pecuniary interest in the advancement of the hotel project. will deal with each in turn. (1) Lack of Openness, Frankness and Candor [23] Exception is taken to the fact that the initial discussions between the Town Council and the Palidwars were kept confidential. While this approach may not have been the wisest, see nothing sinister or illegal about it. The purpose was solely for both sides to obtain information. It is understandable that developer may seek confidentiality until after it has been ascertained whether public body will at least entertain proposal. What is important is that the proposal not be adopted in secret. [24] The applicants seem to believe that Council had duty from the very outset to inform them of the proposal because the applicants are involved in the hotel industry. This is an erroneous belief. No such duty exists. What is required in certain instances is that the public as whole be informed about certain matters and be afforded an opportunity to make representations about them prior to decision being made. [25] In this case there were three “in camera” meetings. The first was on April 12 when the proposal was first disclosed and confidentiality was sought. At that time there appeared to be some support, but no decision was made. The second meeting was on April 26 after which Council in open session passed resolution agreeing to the proposal, but only in principle. Again no lasting decision was made and the proposal was then in the public domain. The third meeting was on June 28, when there were discussions about clarification of certain costs. This was reported out when the Council meeting resumed in open session. [26] In summary, the Palidwars’ proposal was not disclosed for two weeks. During that time no action was taken by the Council, although the members may have given thought to the proposal, something which they were entitled to do. formal decision to actually facilitate the hotel development did not occur until June 14, 1999, when resolution was passed to offer to sell land to the Palidwars. Prior to this the applicants had made their representations in opposition to the project. Accordingly, find nothing improper about the initial confidentiality of the proposal or the meetings “in camera”. [27] Another complaint is that the Council and the Palidwars arrived at certain understandings within the “in camera” meetings. agree that there were discussions, but can see no rational basis to conclude that understandings were reached. It is suggested that because Gary Palidwar stated that financing was largely in place, he somehow knew what was to be the selling price of the land. This simply does not follow. Any knowledgeable person could estimate the price and accordingly arrange contingent financing. In any event, in each instance the fact of the “in camera” meeting was recorded and the Council’s consequent action was made part of the public record. In the circumstances, reject the suggestion that there were any improper understandings. [28] The applicants are aggrieved that Town Council conducted further business on May 25 and June 14, 1999, after the applicants had departed. It was the practice of the Council to move to the Committee-of-the-Whole and then return to open session to complete its business. On each occasion the applicants were invited to stay. When they failed to do so on the first occasion, the intended resolution was deferred to the next meeting. It was the applicants’ decision to leave the meetings. They cannot now be heard to complain. In any event, nothing turned on their presence or absence and it is ludicrous to suggest that procedures were orchestrated so matters could be dealt with in their absence. [29] When look at what transpired, have no hesitation in concluding that the Town Council did not conceal anything or attempt to do so. Rather, they acted openly and with candor. (2) Advancement of Private Interests [30] The applicants submit that the Town Council is seeking to advance the interests of the Palidwars rather than those of the community. This is somewhat intriguing submission. While the applicants speak of the public interest, it appears to be intimately entwined with their personal self-interest. It may well be that new hotel will have somewhat adverse economic effect on the existing hotels and motels. However, it does not necessarily follow that new hotel will be detriment to the community as whole. It may well be in the community’s best interest. There certainly is no evidence before me to establish otherwise. [31] There is specific complaint of unfair advantage or discrimination by reason of the fact that the proposed hotel will be connected to the Evergreen Centre. My answer is this. From my reading of the material filed, and contrary to the assertions of the applicants, the Town of Nipawin has been seeking to improve its public accommodation for more than ten years. During that whole time there was an opportunity available to anyone who chose to pursue it, including the applicants. When someone finally comes along, it is not correct to say they are being afforded an unfair advantage and others are suffering discrimination. [32] Speaking specifically about the “connection”, point out that it is most nebulous. The hotel will be located across the street from the Evergreen Centre. While walkway is being discussed, it is not yet agreed upon. Even if it does come into existence, do not know what form it will take or what impact it may have. While walkway may benefit the proposed hotel, it may equally benefit the Centre. Such result would not be unheard of. In any event, absent something more than negotiations, it is not appropriate for this Court to intervene. [33] In the end am unable to conclude that the Palidwars’ interests are being advanced rather than the community’s best interest. [34] As to the last, am mindful of s. 91(2) of The Urban Municipality Act, 1984, which prohibits an attack upon bylaw or resolution “. on account of the unreasonableness or supposed unreasonableness of any of its provisions.” am also mindful of the admonition that “. the courts should respect the political process and only act where the process has descended to farce.” Harker v. Regina (City), 1995 CanLII 3906 (SK CA), [1995] W.W.R. 276 at 284 (Sask. C.A.). (3) Selling Price [35] It is proposed by the Town to sell two lots for $53,200.00. The applicants say this is not fair market value, but they have produced no evidence in support of the allegation. Equally, they have produced no evidence as to what would be proper price. On the other hand, in his affidavit the Town administrator has set out how the selling price was arrived at. see nothing erroneous or improper in the method and therefore accept $53,200.00 as the fair market value of the land. It follows that no effect can be given to this assertion by the applicants. (4) Pre-Existing Commitment [36] The applicants argue that the resolution of June 14, 1999, to offer the land for sale is an unconditional commitment by the Town of Nipawin and as result it has fettered its discretion such that it has no choice but to enact the bylaw amending the existing zoning bylaw. The critical question is whether the Town Council has actually fettered its discretion. [37] The test to be applied in determining whether there has been prejudgment so as to constitute bias was set out in Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), 1990 CanLII 31 (SCC), [1990] S.C.R. 1170 at p. 1197: In my opinion, the test that is consistent with the functions of municipal councillor and enables him or her to carry out the political and legislative duties entrusted to the councillor is one which requires that the objectors or supporters be heard by members of Council who are capable of being persuaded. The Legislature could not have intended to have hearing before body who has already made decision which is irreversible. The party alleging disqualifying bias must establish that there is prejudgment of the matter, in fact, to the extent that any representations at variance with the view, which has been adopted, would be futile. Statements by individual members of Council while they may very well give rise to an appearance of bias will not satisfy the test unless the court concludes that they are the expression of final opinion on the matter, which cannot be dislodged. In this regard it is important to keep in mind that support in favour of measure before committee and vote in favour will not constitute disqualifying bias in the absence of some indication that the position taken is incapable of change. The contrary conclusion would result in the disqualification of majority of Council in respect of all matters that are decided at public meetings at which objectors are entitled to be heard. This test was adopted by the Saskatchewan Court of Appeal in Harker v. Regina (City), supra. [38] To begin, do not believe that an unconditional commitment has been made by the Town. An offer was extended, but the offer has not been accepted. Rather response was given to the offer, but that response purported to impose conditions, which were to be negotiated. To the present time that has not occurred. Thus, the whole question of the sale is still open and at this time the Town is not subject to an unconditional commitment. [39] With that situation in mind, can it be said that the discretion of Council is fettered in respect to Bylaw 756/99? think not. The aldermen are clearly in favour of the hotel project. They have all voted in favour of it. However, they are not bound individually or collectively to maintain that position. The new bylaw is intended to facilitate the hotel project. Yet the evidence before me does not establish that the alderman will not take into account, when they ultimately vote on the bylaw, any representations made by the public. There is no legitimate reason to conclude that the minds of the aldermen are utterly closed and any representations will be futile. The considerations in respect to the zoning bylaw are broader and more extensive in scope than those pertaining to the hotel project and there is no reason to suppose that they will receive anything less than full review by the various aldermen. [40] must say that it was something of bizarre decision to entertain an application for discretionary use when such is not authorized by the existing zoning bylaw. It is obviously assumed that the amending bylaw will be approved and enacted. At best, this is presumptuous; at worst, it is extreme arrogance. agree with the applicants that it demonstrates where the Town Council is headed. However, it does not establish that they will of necessity proceed to the indicated decision. As result, it is not possible for court to intervene. (5) Pecuniary Interest [41] The Urban Municipality Act, 1984 addresses the subject of pecuniary interest of members of council. Section 33(1) provides: 33(1) When member of council has pecuniary interest in any matter in which the council or committee, board, association, commission or other organization established pursuant to this Act by council is concerned and is present at meeting of the council, committee, board, association, commission or other organization at which the matter is considered, he shall: (a) when the matter arises, disclose that he has pecuniary interest; and (b) leave the meeting while the matter is under discussion. Section 31(b) defines pecuniary interest in this way: (b) “pecuniary interest” means an interest that member of council has in any matter if: (i) he or his agent, partner, spouse, parent or child has controlling interest in, or is senior officer of, corporation that could make financial profit from or be adversely affected financially by decision of council; or (ii) he or his spouse, parent or child could make financial profit from or be adversely affected financially by decision of council. The terms “partner” and “partnership” are defined in The Dictionary of Canadian Law, 1991, as follows: Partner. n. member of partnership. Partnership. n. The relationship that subsists between two or more persons carrying on business in common with view to profit. Like definitions are to be found in Black’s Law Dictionary, 5th ed. (St. Paul, Minn.: West Pub. Co., 1979). [42] The purpose of the pecuniary interest rule was stated in Re Moll and Fisher et al. (1979), 1979 CanLII 2020 (ON SC), 96 D.L.R. (3d) 506 (Ont.Div.Ct.), at pp. 508-9: The obvious purpose of the Act is to prohibit members of councils and local boards from engaging in the decision-making process in respect to matters in which they have personal economic interest. The scope of the Act is not limited by exception or proviso but applies to all situations in which the member has, or is deemed to have, any direct or indirect pecuniary interest. There is no need to find corruption on his part or actual loss on the part of the council or board. So long as the member fails to honour the standard of conduct prescribed by the statute, then, regardless of his good faith or the propriety of his motive, he is in contravention of the statute. And should say at once, that in so far as this case is concerned there is no suggestion that the appellants acted out of any improper motive or lack of good faith. The enactment, like all conflict-of-interest rules, is based on the moral principle, long embodied in our jurisprudence, that no man can serve two masters. It recognizes the fact that the judgment of even the most well-meaning men and women may be impaired when their personal financial interests are affected. Public office is trust conferred by public authority for public purpose. And the Act, by its broad proscription, enjoins holders of public offices within its ambit from any participation in matters in which their economic self-interest may be in conflict with their public duty. The public’s confidence in its elected representatives demands no less. [43] In the instant case, Glen Day is the mayor of Nipawin and Allan Mochoruk is an alderman. Both are shareholders and directors of 622659 Saskatchewan Ltd. which owns the River Inn, a hotel located in Nipawin. Gary Palidwar, along with two others, is an equal shareholder and director of that company. Taking into account that the individuals are involved in a small, closely held private corporation, I am of the opinion that the individuals fall within the definition of partnership and they are all senior officers of the corporation. It would be otherwise were the relationship different within the corporation or if it were public corporation. [44] In addition, there is possibility that the two officials could make profit by the decision of Council. If the hotel project is allowed to go ahead, it may happen that it will be successful such that it cannot accommodate all those who seek lodging within its premises. In such event, the management may refer excess guests to the River Inn. These would result in an increased revenue for that establishment with increased profit for the two public officials. recognize that the described scenario is somewhat extreme. However, the test is not whether there will be, but whether there could be financial profit. [45] In my opinion, both Mr. Day and Mr. Mochoruk had a pecuniary interest in the Palidwar proposal within the meaning of the legislation. As such they should not have participated in any discussions or votes in respect to that proposal. Having come to that conclusion, deliberately make no finding that they intentionally acted with dishonest or wrongful intent. [46] As it happened, neither individual participated in the discussion or reading of Bylaw 756/99 which is the subject of these proceedings. However, that does no more than dance around the problem. Each did participate in the discussion surrounding Bylaw 754/99 and each did vote for it. The present bylaw is nothing more than an extension of the earlier bylaw and the criticism of the first continues into the second. In the circumstances the process as a whole is tainted and should be set aside. [47] There is one additional complaint. The applicants submit that the Town has acted in violation of s. 150 of The Urban Municipality Act, 1984, and in particular s. 150(e). simply point out that there is no evidence before me that the Town has or intends to make public facilities available to the Palidwars. Accordingly, this complaint must be rejected. ISSUE OF STATUTORY NON-COMPLIANCE [48] Section 207 of The Planning and Development Act, 1983, S.S., c. P-13.1, requires that notice be given of any intention to amend zoning bylaw and that public meeting be held for the purpose of hearing representations as to the proposed amendment. The legislation further sets out what must be contained in the notice. The applicants submit that the notice is deficient in several respects. In the light of my earlier conclusion about pecuniary interest, this application can be disposed of without determination of the adequacy of the notice. This being so, decline to make any such determination. DISCRETIONARY USE [49] The applicants seek an order prohibiting hearing in respect to the application for discretionary use by the Palidwars. Those individuals are not parties to these proceedings and accordingly, it is beyond my jurisdiction to make any order in respect to this part of the application. [50] also want to make it clear that my decision herein relates only to what has already happened. It is not anticipatory in nature and is not intended to address future conduct by the Town of Nipawin. To attempt such would be an unwarranted and wrongful intrusion into the legislative process. This Court does not belong there and has no intention of going there. Were there to be an entirely new process, totally absent the presence of Messrs. Day and Mochoruk, different result may ensue. [51] In the result, it is ordered as follows: (1) the Town of Nipawin is prohibited from holding a public hearing on August 30, 1999, in respect to Bylaw 756/99, being a bylaw to amend Bylaw 465/82, the Zoning Bylaw of the Town of Nipawin; (2) the Town of Nipawin is prohibited from giving third reading to and adopting Bylaw 756/99; (3) the application is dismissed in respect to the application for discretionary use by Kathy and Gary Palidwar; and (4) the applicants will have taxable costs of the application, which costs fix at $400.00.

In issue was whether the Town Council's proceedings in respect to a proposed hotel development, including the bylaw, were invalid by reason of bad faith and whether it met the statutory prerequisites for a public meeting. HELD: The Town was prohibited from holding a public hearing with respect to the amendment to the zoning bylaw and from giving third reading to and adopting the bylaw. The application was dismissed in respect to the application for a discretionary use for a hotel development by the Palidwars. 1)The Town Council had acted openly and with candor. It did not have a duty to inform the applicants of the proposal because they were involved in the hotel industry. There was nothing improper about the initial confidentiality of the proposal and meetings in camera. 2)The shareholders' private interests were not being advanced rather than the community's best interest. Section 91(2) of the Urban Municipality Act and Harker v. Regina were noted. 3)There was nothing erroneous or improper in the method used to determine the selling price. 4)The question of the sale was still open. The Town was not subject to an unconditional commitment. The court could not intervene as it had not been established that the Town Council had fettered its discretion. 5)The process as a whole was tainted and should be set aside. The mayor and alderman, both shareholders and directors of the corporation, fell within the definition of partnership. They both had a pecuniary interest in the proposal within the meaning of the legislation. No finding was made that they acted with a dishonest or wrongful intent. The complaint respecting a violation of s.150(e) was not established. 6)It was not necessary to determine the adequacy of the notice required by s.207 of the Planning and Development Act. 7)It was beyond the court's jurisdiction to make an order prohibiting a hearing in respect to the application for a discretionary use by the Palidwars as they were not parties to these proceedings. The court's decision is not anticipatory in nature. 8)The applicants were awarded taxable costs of the application fixed at $400.

1999skqb29.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2017 SKQB 205 Date: 2017 07 07 Docket: QBG 2314 of 2013 Judicial Centre: Regina BETWEEN: ṢEKERBANK T.A.S. and HṺSEYIN ARSLAN and MURAD AL-KATIB Counsel: Peter T. Bergbusch for the plaintiff Keven C. Mellor for the defendant, Hṻseyin Arslan Deron A. Kuski, Q.C. and K. James Rose for the defendant, Murad Al-Katib JUDGMENT BARRINGTON-FOOTE J. JULY 7, 2017 I. INTRODUCTION [1] On January 9, 2014, a preservation order was granted in this action [Order], pursuant to s. 5 of The Enforcement of Money Judgments Act, SS 2010, c E-9.22 [EMJA]. The Order prohibited any dealings with 850,000 shares of Alliance Green Traders Inc. [AGT], pending a final decision on the merits of the plaintiff’s claims against the defendant Hṻseyin Arslan in Turkey, and the conclusion of this action. The following applications are now before me: 1. On January 20, 2016, the defendants applied pursuant tos. 8 of the EMJA to terminate the Order. In the alternative, they seek an order reducing the number of shares subject to the Order, and requiring the plaintiff to post $3,081,463.14 as security pursuant to ss. 5(7) of the EMJA, and $40,000 security for costs. 2. On March 8, 2016, the plaintiff Ṣekerbank T.A.S. [Ṣekerbank] and Alternatifbank A.S. [ABank], a second Turkish bank which asserts a debt claim against Mr. Arslan, applied pursuant to Rules 3-72 and 3-84 of The Queen’s Bench Rules for an order that ABank be added as a plaintiff, and to amend the Statement of Claim. [2] The defendants’ application to terminate the Order is based on the allegation that the plaintiff has failed to prosecute this action without delay. For the reasons that follow, that application is denied. The defendants’ application to amend the Order is granted in part. The application to add ABank as a plaintiff, and to amend the draft Amended Statement of Claim which has been filed, is granted. II. THE ENFORCEMENT OF MONEY JUDGMENTS ACT This is fraudulent preference and fraudulent conveyance action. As such, the Order was authorized pursuant to ss. 5(1)(a)(ii) of the EMJA. The relevant provisions of s. of the EMJA are as follows: 5(1) In this Part: (a) "action" means legal action that would, if successful, result in: ... (ii) an order declaring gift, conveyance, assignment, transfer, delivery over or payment of property by the defendant void as fraudulent conveyance or fraudulent preference; (b) "transferee" means person who has received an interest in property from the defendant pursuant to transaction mentioned in subclause (a)(ii). (2) An application for preservation order may be made to the court by any of the following persons: (a) plaintiff in an action commenced in Saskatchewan; (5) The court may grant preservation order if the court is satisfied that: (a) the action would, if successful, result in: ... (ii) an order described in subclause (1)(a)(ii); (b) if the preservation order is not granted, the enforcement of judgment or order against the defendant or transferee is likely to be partially or totally ineffective as result of the disposition of, damage to, dissipation of, destruction of, concealment of or any dealing with property...; and (c) the action will be prosecuted without delay, other than delay caused by the defendant or transferee. (6) preservation order may do one or more of the following: (a) prohibit the disposition of property other than for purpose mentioned in subclause (5)(b)(i), (ii) or (iii); (b) prohibit the damage to, dissipation of, destruction of or concealment of property; (7) preservation order shall require the plaintiff to provide security in an amount that, in the opinion of the court, is sufficient to compensate the defendant or other person affected by the preservation order for pecuniary loss that may be caused as result of the preservation order unless, in the court’s opinion, requiring the plaintiff to provide security would cause undue hardship to the plaintiff. (9) The court may grant preservation order against any of the following persons: (a) the defendant, with respect to property of the defendant and property acquired by the defendant after the date of the preservation order; (b) transferee, with respect to property received from the defendant; [3] The defendants’ application to terminate or modify the Order is authorized by s. of the EMJA, which is as follows: 8(1) plaintiff, judgment creditor, defendant, judgment debtor or any other person affected by preservation order may apply to the court to have the preservation order extended, renewed, modified or terminated. (2) Section applies, with any necessary modification, to an application made pursuant to this section. (3) In an application to extend, renew, modify or terminate preservation order, the onus is on the applicant to establish that the preservation order should be extended, renewed, modified or terminated. (4) On application made pursuant to this section, the court may make any order that the court considers appropriate in the circumstances, including: (a) an order doing one or more of the things mentioned in subsection 5(6); and (b) an order extending, renewing, modifying or terminating preservation order. [4] The Order initially provided as follows: THIS COURT ORDERS THAT: 1. Pursuant to section 5 of The Enforcement of Money Judgments Act, the respondents Hṻseyin Arslan and Murad Al-Katib, as trustee of The Carme Trust, or prohibited from disposing of, transferring or undertaking any transaction with respect to 850,000 shares (the “Shares”) of Alliance Grain Traders Inc. transferred by Hṻseyin Arslan to Murad Al-Katib, as trustee of The Carme Trust, on about June 3, 2013. 3. Pursuant to section 7(1)(c) and section 7(2) of The Enforcement of Money Judgments Act, this preservation order shall remain in effect until the Turkish Court has rendered final decision on the merits of the Applicant’s claim against Hṻseyin Arslan and until such time as the within action is concluded, or until further court order. [5] The Order was amended by consent on October 30, 2014, to provide that Mr. Al-Katib would hold the 850,000 shares pursuant to an escrow agreement. The October 30 order also provided as follows: 3. Pursuant to section of The Enforcement of Money Judgments Act and pursuant to the terms of the escrow agreement referred to above, the Respondent Murad Al-Katib, as escrow agent, is prohibited from disposing of the Shares or undertaking any action which is contrary to the escrow agreement with respect to the Shares for the duration of this preservation order. 5. Pursuant to section 7(1)(c) and section 7(2) of The Enforcement of Money Judgments Act, the escrow agreement and this preservation order shall remain in effect until further court order of Saskatchewan court. [6] This is not the first application to terminate the Order. The defendants first applied to terminate on May 6, 2014 four months after the Order was granted alleging that the proceedings taken by the plaintiff in Turkey to prove and enforce guarantees executed by Mr. Arslan [Turkish Proceedings] had failed, and that the plaintiff had failed to prosecute those proceedings without delay. That application would finally take 32 months to wend its way through the courts. It was initially dismissed by this Court July 14, 2014: see Ṣekerbank T.A.S. Arslan, 2014 SKQB 215 (CanLII), 450 Sask 76 [Ṣekerbank #1]. The defendants’ appeal of that decision was dismissed by the Court of Appeal on June 20, 2016: see Arslan Ṣekerbank T.A.S., 2016 SKCA 77 (CanLII), 480 Sask 235 [Ṣekerbank CA]. On September 16, 2016, the defendants applied to the Supreme Court of Canada for leave to appeal Ṣekerbank CA. Leave was refused February 9, 2017 at [2016] SCCA No 384 (QL). [7] In Ṣekerbank #1, the matters at issue in the Turkish Proceedings and in this action are summarized as follows: The plaintiff alleges that the defendant Hüseyin Arslan has defaulted on his obligation to pay the plaintiff $13,813,544.88 pursuant to certain guarantees. Mr. Arslan denies that the guarantees are binding or enforceable. The plaintiff has pursued various legal actions in Turkey in an attempt to prove and enforce those guarantees. This action results from the plaintiff's concern that it will be unable to realize on any judgment which it may obtain in Turkey. The plaintiff wishes to ensure that it will be able to enforce that judgment against certain shares that Mr. Arslan transferred to Murad Al-Katib in trust. It accordingly commenced this action, which attacks this transfer as fraudulent preference or fraudulent conveyance, and, as interim relief, seeks preservation order pursuant to s. of The Enforcement of Money Judgments Act, S.S. 2010, c. E-9.22 ("EMJA"). [8] This description but for the fact that the Order is now in place remained accurate when the defendants made this application. The plaintiff continues to pursue final judgment against Mr. Arslan in two actions in Turkey. One of those actions is an enforcement proceeding. The other an action in the Turkish Commercial Court to prove that Mr. Arslan is liable pursuant to the guarantees. [9] Ṣekerbank #1 dealt with and describes the progress of the Turkish Proceedings prior to June 2014. The March 11, 2016 affidavit of Dr. Oztunc filed in response to the defendants’ application to terminate or modify the Order outlines the progress of the Turkish Proceedings from June 2014 to March 2016. Dr. Oztunc deposed that Mr. Arslan applied to have the judge in both Turkish actions recused. That application was dismissed. Mr. Arslan also objected to final ancillary attachment decisions granted in the enforcement proceedings on various grounds. Those objections were finally dismissed on May 12, 2015, resulting in final ancillary attachment decisions in favour of the plaintiff. [10] The action in the Commercial Court has also moved forward. Dr. Oztunc deposed that senior official of the debtor companies acknowledged the debts on behalf of both the companies and the guarantors in March 2015, and “accepted” the debts at court hearing on April 20, 2015. That hearing was adjourned to October 2015. [11] There is, however, third action which has further delayed the final resolution of the Turkish Proceedings. On July 13, 2015, the debtor companies were found to be insolvent in Turkish bankruptcy proceeding. On October 1, 2015, the court ordered stay of the plaintiff’s enforcement proceedings. The plaintiff objected to the stay in October 2015 and in February 2016. Those objections resulted in further process which, according to Dr. Oztunc, could result in final decision against Mr. Arslan and other objecting guarantors at hearing scheduled for June 30, 2016. If that occurred, Mr. Arslan could appeal, and further delay enforcement proceedings pending disposition of the appeal. [12] The defendants filed two affidavits in support of their application. The December 9, 2015 affidavit of Akin Arikan describes the status of the Turkish Proceedings, and the bankruptcy proceedings. His description was consistent with that of Dr. Oztunc. However, Mr. Arikan did not agree that the Turkish Proceedings might be concluded by June 2016. He deposed that they would take three more years. [13] The defendants also filed January 19, 2016 affidavit sworn by Murad Al-Katib. Mr. Al-Katib deposed that the plaintiff has done nothing to prosecute this fraudulent preference action since filing the Statement of Claim. The plaintiff does not deny that allegation. [14] The Al-Katib affidavit also contains evidence in support of the alternative application to modify the security. It appends an opinion from Jeremy Herbert, lawyer at Felesky Flynn LLP [Herbert opinion], that “it is reasonable to expect” the Carme Trust [Trust] and its beneficiaries would have reduced their Canadian tax liability by $2,004,321 in 2014 and 2015 if it had been possible for the Trust to cease being Canadian resident “on or about January 9, 2014”. The Herbert opinion states that the migration of the Trust was delayed “largely as result of the Preservation Order”. It does not identify the other factors that may have contributed to that delay. There is no evidence as to the training or experience that may have qualified Mr. Herbert to provide the opinion. Some, but not all, of the assumptions underlying the opinion are disclosed. [15] Mr. Al-Katib also deposed that the price of AGT shares increased from $16.80 on January 9, 2014, to $36.19 on January 15, 2016, and that the Canadian dollar had appreciated against the Turkish lira by 4.282%. In the result, he deposed that the value of the 850,000 AGT shares subject to the Order was $30,761,500 as of January 15, 2016, or $18,435,647.45 more than the plaintiff’s claim. V. THE APPLICATION TO ADD ALTERNATIFBANK A.S. [16] shall deal first with the application by Ṣekerbank and ABank to add ABank as party, and to amend the Statement of Claim [ABank application]. Ṣekerbank claims that Mr. Arslan has failed to pay 27.872.906,68 Turkish Lira owing to Ṣekerbank pursuant to certain guarantees. It says it has been denied the opportunity to enforce that payment obligation as result of the wrongful transfer of shares by Mr. Arslan to Mr. Al-Katib as the trustee of the Trust. It seeks various forms of relief pursuant to The Fraudulent Preferences Act, RSS 1978, F-21 and the Fraudulent Conveyance Act, RSO 1990, F.29. [17] ABank wishes to pursue the same relief. It seeks amendments to the Statement of Claim that would allege that Mr. Arslan has failed to pay 21.114.869,82 Turkish Lira owing to ABank, and that it is entitled to the same relief as Ṣekerbank, as result of the same fraudulent transfer by Mr. Arslan. The source of the alleged debt owing by Mr. Arslan to ABank is different than the alleged debt owing to Ṣekerbank. [18] The ABank application refers to Rules 3-72 and 3-84 of The Queen’s Bench Rules, which provide as follows: 3-72(1) party may amend the party’s pleading, including an amendment to add, remove, substitute or correct the name of party, as follows: (c) after statement of defence is filed: (i) by agreement of the parties filed with the Court; or (ii) with the Court’s prior permission, in any manner and on any terms that the Court considers just. 3-84(1) At any stage of the action, the Court may order that any person be added as party if: (a) that person ought to have been joined as party; or (b) the person’s presence as party is necessary to enable the Court to adjudicate effectively and completely on the issues in the action. (2) At any stage of the action, the Court may grant leave to add, delete or substitute party, or to correct the name of party, and that leave shall be given, on any terms that the Court considers just, unless prejudice will result that cannot be compensated for by costs or an adjournment. [19] In its brief, the defendants also responded to this application on the basis that it engaged s. 20 of The Limitations Act, SS 2004, L-16.1. They were correct to do so. The defendants’ claim that the limitation period that applies to ABank’s claim has expired, and that the application should be denied for that reason. Section 20 relates to the addition of parties and claims after the expiration of limitation period. It provides as follows: 20 Notwithstanding the expiry of limitation period after the commencement of proceeding, judge may allow an amendment to the pleadings that asserts new claim or adds or substitutes parties if: (a) the claim asserted by the amendment, or by or against the new party, arises out of the same transaction or occurrence as the original claim; and (b) the judge is satisfied that no party will suffer actual prejudice as result of the amendment. [20] In my view, this application should be disposed of pursuant to s. 20. As Richards J.A. (as he then was) said in Cameco Corp. Insurance Co. of State of Pennsylvania, 2008 SKCA 54 (CanLII), 310 Sask 89 [Cameco]: 105 As this Court has said on four separate occasions, s. 20 confers an unfettered discretion to be exercised judicially limited by the requirements listed in s. 20(a) and (b) and no others. The legislature could not have made its intent more clear. Section 20 is not addressed solely to adding party, but substituting party and adding claim. [21] The question, accordingly, is whether the two conditions specified in ss. 20(a) and (b) are met. First, did ABank’s claim arise out of the same transaction or occurrence as Ṣekerbank’s claim? In Stomp Pork Farm Ltd. Lombard General Insurance Co. of Canada, 2008 SKQB 405 (CanLII), 316 Sask 262 [Stomp Pork], Ottenbreit J. (as he then was) summarized the meaning of “same transaction or occurrence”, as follows: 61 …The section does not refer to the same "claim" or the same "injury, loss or damage" or the same "act or omission". In my view the terms "same transaction or occurrence" are broad terms in the sense of precipitating event which allows the court to step back and take view of what is reasonable in the circumstances. It allows for situations where an event happens which results in varying injury, loss or damage as result of varying acts or omissions, resulting in varying claims which may or should nevertheless be tried together. 62 This meaning of "transaction or occurrence" is alluded to by Richards J.A. in Cameco at para. 31 when he refers to the case of Dusterbeck v. Beitel 1988 CanLII 5386 (SK CA), [1988] W.W.R. 669 (Sask. C.A.) and at para. 32 to the words of Sherstobitoff J.A. who at p. 671 of the case said: ... While the judge was correct in describing Dusterbeck's claim as new cause of action, it was one which was permitted by the section because: (a)it arose out of the same occurrence (the accident) as the original action; ... 63 In Duke v. Vervaeck, [2000] S.J. No. 591, 2000 SKQB 414 (CanLII), Mr. Justice Klebuc (as he then was) authored comprehensive analysis of what constitutes claim arising out of the same transaction or occurrence as the original claim. After reviewing number of authorities he opted for broad interpretation and stated at para. [21] ... there need only be some temporal and factual relationship between the occurrences on which the original claim is based and those on which proposed counterclaim or similar claim is based. [22] In 1348623 Alberta Ltd. Choubal, 2013 SKQB 439 (CanLII), at paras 29-37, 435 Sask 70 [Choubal], Ryan-Froslie J.A. (ex officio) cited Stomp Pork with approval, and adopted (at para. 32) “the definition of “transaction or occurrence” as being, in broad terms, precipitating event”. Kovach J. reviewed the case law in Pollock Saskech Inspection Ltd., 2013 SKQB 409 (CanLII), at paras 26-37, 432 Sask 227 [Pollock], adopting the test proposed in Duke Vervaeck, 2000 SKQB 414 (CanLII), 197 Sask 253. That is: is there sufficient temporal and factual relationship between the original and amended claims? See also, to the same effect, Klaptchuk Tiefenbach, 2012 SKQB 195 (CanLII), 398 Sask 100 [Klaptchuk]. In Cameco (at para 29), Richards J.A. provided guidance as to limits of the court’s discretion, commenting that “the notion of an "amendment" necessarily carries with it the idea that the proposed changes to the original pleadings must not be so dramatic as to effectively create wholly new proceeding”. [23] There is, in my respectful opinion, sufficient temporal and factual relationship between the Ṣekerbank and ABank claims that they arise out of the same transaction or occurrence. That is so despite the fact that their rights to seek the relief sought in this action are based on different debt claims against Mr. Arslan. The claims of both Ṣekerbank and ABank are based on the allegation that Mr. Arslan transferred AGT shares to the Trust on or before June 3, 2013, at time when he had ceased paying his debts or was unable to pay his debts in full. Both allege that they have, as result of that transfer, and Mr. Al-Katib’s agreement to assist Mr. Arslan by acting as the trustee, been denied the opportunity to collect on their debts. Both seek the same relief, including judgment against both defendants under The Fraudulent Preferences Act and The Fraudulent Conveyances Act. The addition of ABank as a plaintiff, and amending the Statement of Claim in the manner proposed, would not create a wholly new proceeding. [24] The second question, then, is this: am I, as required by ss. 20(b) of The Limitations Act, satisfied that neither of the defendants will suffer “actual prejudice” as result of the proposed amendments? In Stomp Pork (at para 67), Ottenbreit J. held citing 287993 B.C. Limited Nanaimo (Regional District), 2006 BCCA 507 (CanLII), that “actual prejudice” means “prejudice associated with the delay itself which affects the ability of the opposing party to respond to the amended claim”. The same test was adopted in Cameco, Choubal, Pollock and Klaptchuk. [25] The defendants submit that there is rebuttable presumption that defendants will be prejudiced by delay, and that the prejudice will increase with the passage of time. They cite Tanguay Brouse, 2010 ONCA 73 (CanLII) in support of that proposition. That case related to an application to dismiss for want of prosecution. In International Capital Corp. Schafer, 2010 SKCA 48 (CanLII), at para 45, 350 Sask 160 which also related to dismissal for want of prosecution Richards J.A. confirmed that “a court can infer that the passage of time will typically have at least some effect on the memories of witnesses”. [26] The defendants claim that there has been delay of as much as three years from the time ABank knew it had cause of action. am prepared to infer that memories may have faded to some extent. There is, however, no evidence that documents or witnesses are no longer available. Nor is there any evidence that fading memories would have particular impact on the ability of the defendants to respond to this new claim. The necessary prejudice has not been demonstrated. [27] In the result, the two conditions specified in ss. 20(a) and (b) exist. It is, in my view, appropriate that exercise my discretion to order that ABank be added as plaintiff, and that the Statement of Claim be amended in accordance with the draft Amended Statement of Claim filed with the application. [28] will deal next with the application to terminate or modify the Order. VI. THE APPLICATION TO TERMINATE OR AMEND THE ORDER 1. The Legal Test [29] The legal test that applies on an application to terminate preservation order pursuant to s. of the EMJA that has been granted by consent was settled in Ṣekerbank CA. Caldwell J.A. there adopted the following test from Ṣekerbank #1: 103 For these reasons, endorse the following approach set forth by the Chambers judge for addressing applications arising under s. of the EMJA to set aside preservation order obtained by consent: [55] In my view, this is the correct approach. It is open to the court to terminate preservation order granted by consent pursuant to s. of the EMJA if the applicant shows grounds that would vitiate contract. It is also open to the court to terminate consent preservation order if the facts or the law on which the consent order was based have changed to the extent that the plaintiff, as result of those changes, no longer meets the three conditions specified in s. of the EMJA. Failing that, the court should not terminate the order, or revisit the issues which the parties intended to resolve through that order. That is so regardless of whether the order is expressly made "until further order of the court", unless there is evidence that the parties intended that phrase to mean that the order was not intended to resolve the issues. [30] In this case, the issue is whether the facts on which the Order was based have changed to the extent that the plaintiff no longer meets the third of the three conditions specified in s. of the EMJA, which will repeat for ease of reference: (5) The court may grant preservation order if the court is satisfied that: (c) the action will be prosecuted without delay, other than delay caused by the defendant or transferee. [31] The defendants submit that the plaintiff no longer meets this condition. They do not allege that the plaintiff has failed to proceed expeditiously in the Turkish Proceedings. Rather, they note that the plaintiff has chosen to await the outcome of the Turkish Proceedings before taking any steps to advance this action. It is their position that this action is “totally independent” from the Turkish Proceedings, and that even if there is “some logic” in securing the Turkish judgment before dealing with enforcement, that approach became unacceptable once preservation order with the impact of the Order was in place. The defendants also note that in his affidavit filed in Ṣekerbank #1, Dr. Oztunc estimated that the Turkish Proceedings could be concluded in early 2015, which is now long past, and that the Turkish Proceedings may take years to complete. [32] In response, the plaintiff submits that the Turkish Proceedings and this action cannot be viewed in isolation. It notes that it must prove that Mr. Arslan is liable pursuant to the guarantees that is, it must succeed in the Turkish Proceedings in order to succeed in this action. Defendants’ counsel conceded that is so. The plaintiff argues that sequential approach awaiting the outcome in Turkey before pursuing this action is justified for that reason. [33] The failure to prosecute an action without delay could call for termination of preservation order. As noted in Ṣerkerbank #1: 69 There are certainly circumstances in which evidence of failure by plaintiff to prosecute its claim without delay could constitute sufficient change in the facts to justify the termination of preservation order. However, not every delay meets that mark. The court must consider the extent of and reasons for the delay, in the context of the proceedings as whole. If the defendants wish to rely on change in circumstances to justify termination, they have the onus to satisfy the court that the change is sufficient to justify that result. [34] However, do not read the requirement that the action “be prosecuted without delay, other than delay caused by the defendant or transferee” to mean that the plaintiff must litigate as if speed is the only consideration. Rather, the plaintiff must proceed expeditiously, in manner intended to conclude the action as soon as is reasonably possible. Further, while the plaintiff must be held to high standard, its actions should not be measured against standard of perfection, with the benefit of hindsight. [35] The question of whether the plaintiff has complied with this requirement turns on the facts. The relevant circumstances include the nature, extent and cause of the delay. Relevant evidence may include, among other things, the complexity of the action; whether tactical, procedural or other litigation decisions that caused the delay were comprehensible, or reasonable; and whether any part of the delay is attributable to, the defendants, third party, institutional delay or other events beyond the control of the plaintiff. [36] The defendants submit that should take the same approach in considering the failure to prosecute the action without delay as would if this preservation order was an interlocutory injunction. In my view, the case law relating to applications to terminate interlocutory injunctions as result of delay is of some assistance. However, it must be applied with care, given that very different test applies on an application for an interlocutory injunction. [37] An unreasonable delay in bringing matter to trial may result in an order to dissolve an interlocutory injunction: see, for example, Bauscher-Grant Farms Inc. Lake Diefenbaker Potato Corp. (1999) 1999 CanLII 12463 (SK QB), 178 Sask 119 (QB), at paras 19-30; Ciba-Geigy Ltd. Novopharm Ltd., 1997 CanLII 6388 (FC), [1998] FC 527, at paras 28-30; and Hutchens Scam.com, 2011 ONSC 56 (CanLII), at paras 170-174. Those cases reflect similar approach to that suggested above. That is, while past delay may be significant, it is not conclusive. The decision is contextual, and must take account of the test that applies to the grant of an interlocutory injunction. Here, it must take account of the test that applies to the grant of preservation order. [38] The defendants also submit that must terminate the Order if find that the plaintiff has failed to prosecute the action without delay. With respect, do not agree. Section 5(5)(c) is forward looking. It is open to me to continue or modify the Order, provided that am satisfied as stated in s. 5(5)(c) that the action will be prosecuted without delay. past failure to prosecute without delay is relevant, but not conclusive. [39] If the court concludes that the plaintiff has not prosecuted the action without delay, it is entitled to consider the appropriate remedy. In some cases, delay will call for immediate termination. In others, the court may decide it should do nothing, or modify the order. The facts relevant to that decision may include, for example, the risk of and the potential extent of the damage to the defendant if the order is continued, and to the plaintiff if the order is terminated; whether the existing or additional security posted by the plaintiff would adequately mitigate the potential impact on the defendant; the risk that the plaintiff will not proceed expeditiously in the future; and whether time limits or other terms could be imposed to ensure that it does. [40] Further, the court can modify preservation order even if it finds that the plaintiff has prosecuted the action without delay. It may, for example, decide it is appropriate to increase or decrease the amount of the security provided by the plaintiff, if there has been sufficient change in the facts or law that the assumptions that resulted in an order in that amount no longer hold true. Changed circumstances relevant to the amount of security could, as here, include evidence of changes in the value of the security, or of the likelihood or extent to which the plaintiff may be unable to enforce judgment as result of dealings with property. a. Has the plaintiff failed to prosecute the action without delay? [41] Ṣekerbank failed to take any steps from June 2014 to the date of the application, period of 20 months. The plaintiff has explained why it chose to proceed as it did. It chose to await the outcome of the Turkish Proceedings, knowing that it could not succeed in this action unless it succeeded in proving Mr. Arslan is indebted to and obliged to pay the plaintiff. [42] The plaintiff also noted that there appeared to be consensus among the parties that this action needed to await the result of the Turkish Proceedings. Even if, as counsel for the defendants submitted, there was no such consensus, it is entirely understandable why the plaintiff thought there was. In Ṣekerbank #1, the defendants alleged that the plaintiff had failed to proceed expeditiously in the Turkish Proceedings. They did not rely on the plaintiff’s failure to take steps in this action. Further, the defendants made the following statement in their memorandum of law in Ṣekerbank CA: 42. The answer to the question of whether the action has been prosecuted without delay has changed with effluxion of time and in itself justifies periodic review of such an order or application by party subject to an order. In this case the Respondents have self-evidently failed to meet by at least one year their prediction of when Turkish judgment ought to have been secured by exercising due diligence. 48. Following registration, Sekerbank will need to enforce its judgment. Enforcement, however, can only occur if Sekerbank is successful in the fraudulent preference action in Saskatchewan, which cannot start in earnest until the outcome of the Turkish proceedings is known. As this court knows, proving the fraudulence or bona fides of Mr. Arslan’s gift to the Trust could take well over year, assuming no appeals. (emphasis added) [43] As the plaintiff notes, this statement appears to contemplate exactly the sequential approach that has been taken by the plaintiff. The delay resulting from that approach weighed in favour of the defendants in Ṣekerbank CA. Not surprisingly, the sequential approach was not questioned at that stage, but used to buttress the argument that there would be excessive delay. It now cuts in the opposite direction. Not surprisingly, it has been characterized by the defendants as an inappropriate choice. [44] It must also be kept in mind that the delay in pursuing this action result from delays in the Turkish Proceedings. Accordingly, the cause of those delays is relevant. In Ṣekerbank #1, found that the plaintiff could not be faulted for the delays in those proceedings to June 2014. Similarly, the evidence on this application does not establish that the delay in completing the Turkish action is attributable to the plaintiff. Rather, it is the result of Mr. Arslan’s vigorous defence, and the bankruptcy proceedings. The plaintiff’s decision to await the outcome of the Turkish Proceedings must be assessed in light of the fact that those proceedings could have been far more advanced. The delay is, to this extent, attributable to Mr. Arslan and to third parties. [45] In these circumstances, it is my opinion that the plaintiff has not failed to prosecute the action without delay. Further, the evidence does not support the conclusion that either Ṣekerbank or ABank will fail to do so in the future. They state that they are now prepared to proceed with this action. Further, Ṣekerbank and ABank jointly applied in March 2016 for the appointment of case management judge, and have been appointed for that purpose. That appointment will enable the parties to seek directions to assist in the expeditious resolution of this action. [46] For these reasons, the application to terminate the Order is dismissed. b. Should the Order be modified to reduce the number of shares subject to the Order? [47] The defendants have applied in the alternative for an order that the Order be modified to reduce the number of shares from 850,000 to 100,000. This aspect of the application engaged the second of the three conditions specified in ss. 5(5) of the EMJA: that is, will the plaintiff’s ability to enforce judgment likely to be partially or totally ineffective as result of the disposition of, damage to, dissipation of, destruction of, concealment of or any dealing with property? will deal with this issue on the basis of the action as it was when the form of the security was agreed, being claim by Ṣekerbank for $13,813,544.88. will comment briefly below on the implications of the order to add ABank as plaintiff. [48] There are various elements to the defendants’ argument that the number of shares held should be reduced. They have provided evidence that the value of the shares on January 15, 2016 was $30,761,500, or $18,435,647 more than the plaintiff’s claim from Mr. Arslan. They claim that Mr. Arslan is solvent, and could accordingly pay judgment. They submit that all or part of any indebtedness he may have pursuant to the guarantees will likely be satisfied through distribution of the assets of the primary debtors, or payments by the other alleged guarantors. That, in turn, would reduce the burden borne by Mr. Arslan. [49] In response, the plaintiff notes that the parties agreed on the number of shares to be held, well knowing that both sides bore risk that the value of the shares would fluctuate. It notes that risk remains. The plaintiff also submits that should not speculate about Mr. Arslan’s other assets. [50] In my opinion, the evidence is not sufficient to justify reduction in the number of shares subject to the Order. The defendants say Mr. Arslan is solvent. That is relevant consideration. However, they did not provide sufficient evidence that he has sufficient exigible assets to pay judgment in the amount at issue in this claim. Mr. Arikan deposed that liquidation of the debtor companies has not begun. He did not depose when it may occur. Further, there is no evidence of the net proceeds that may be realized from any liquidation, or the amount that might be available to pay the plaintiff. Similarly, there is no evidence that the plaintiff has judgment against other guarantors, or whether they are willing and able to pay. [51] Further, the issue is whether there has been material change in the relevant circumstances since the date of the Order. Here, there has been change in the value of the shares. There is no evidence that there has been material change that reduces the risk to the plaintiff specified in ss. 5(5) in relation to the other factors identified by the defendants. [52] The defendants’ evidence as to the value of the security also falls short of demonstrating a sufficient change in circumstances. It discloses the price of AGT shares on January 9, 2014 and January 15, 2016. There is no evidence as to why the price increased, how the share price has fluctuated over time, or the likelihood that the price will remain close to or above the level it reached in January 2016. There is accordingly insufficient evidence to conclude that the plaintiff’s claim, including interest and costs, would be secured for the necessary period and to the extent contemplated by this consent Order, by a lesser number of shares. Further, and as the plaintiff noted, both parties knew that the price would fluctuate, and agreed based on factors that are not in evidence that 850,000 shares was the right number. That was one of the assumptions on which the consent Order was based. [53] In the result, am not prepared to reduce the number of shares subject to the Order. It is my view that is the correct answer without taking account of the fact that have now ordered that ABank which has very substantial claim in its own right be added as plaintiff. Even if had found that the security should be reduced if the issue was the value of the Ṣekerbank claim alone which did not would have reached the opposite conclusion based on the combined value of the claims. c. Should the plaintiff be obliged to post security? [54] It is, however, my view that the Order should be modified to provide that Ṣekerbank provide security as contemplated by ss. 5(7) of the EMJA, despite the fact that the defendants agreed to an Order that did not provide for security. reach that conclusion for two reasons. [55] First, agree with the conclusion of Danyliuk J. in Custom Foundations Ltd. Welcome Homes Ltd., 2017 SKQB 148 (CanLII), at paras 41-43 [Custom] that ss. 5(7) requires that the plaintiff provide security. Section 5(7) describes the measure to be applied: that is, the security should be in an amount “sufficient to compensate the defendant or other person affected by the preservation order for pecuniary loss that may be caused as result of the preservation order”. [56] Further, the plaintiff should, to the extent possible, deal with this issue in its application: see Custom at paras 39-40, and Alliance Pulse Processors Inc. Hudson Bay Port Company, 2016 SKQB 307 (CanLII), at para 14. That said, agree with Danyliuk J. that plaintiff may have little or no ability to quantify defendant’s potential losses. It should not be denied relief for that reason. In practical terms, the defendant may be obliged to provide evidence if it wishes to ensure there is adequate security. [57] To be clear, do not suggest that the parties acted inappropriately by failing to deal with security in the Order. There are various possible explanations. The defendants may, for example, have waived that requirement in exchange for some other consideration. They may have believed that they would suffer no losses given the nature and anticipated needs of the Trust during the relevant period. [58] Second, and particularly given the lack of clarity as to the reasons for the lack of provision for security in the Order, find there is evidence of sufficient change in circumstances to justify this modification. am satisfied that Mr. Al-Katib, or more correctly, the Trust, may have suffered and may in future suffer losses as result of the Order. The parties identified two potential sources of such losses. First, losses could arise from the inability of the trustee to dispose of or otherwise deal with the shares, which are publicly traded and have changed significantly in value. note, however, that there is no evidence that the Order has prevented specific disposition, or would prevent proposed disposition in the foreseeable future. [59] Second, losses could arise as result of increased taxes paid in 2014 and 2015. Mr. Al-Katib has counterclaimed, among other things, for the amount estimated by the Herbert opinion. am, however, not satisfied that the loss attributable to the Order could reasonably include the entire amount identified by Mr. Herbert. That is so for several reasons. [60] First, and as is noted above, there is no evidence as to Mr. Herbert’s training or experience. am accordingly unable to accept his opinion as an expert opinion. In any event, the Herbert opinion even if accepted it as an expert opinion would not constitute proof of loss of $2,004,321. It does not identify the other factors that may have delayed the migration of the Trust, and how those factors may have influenced the timing of the migration. Indeed, it is not clear from the evidence that the Trust would have migrated on or about January 9, 2014 but for the Order, or that the plaintiff is responsible for the fact that the Order was not amended to permit the migration until October 2014. [61] Further, there is no evidence that the fact that the Trust would have paid less Canadian tax in 2014 and 2015 means that the Trust will finally suffer net loss in that amount. Even if it did, and as the plaintiff noted, the tax loss related to all of the assets of the Trust. The 850,000 shares affected by the Order constituted only 25.66% of the 3,312,601 AGT shares held by the Trust as of January 9, 2014. Accordingly, and even if the tax loss was attributable entirely to the Order, it appears at first blush that the loss relating to the 850,000 shares would be $514,277. [62] Ṣekerbank and ABank are unable to reasonably estimate the losses that could be suffered by Mr. Arslan or the Trust. will fix the amount of security at $1 million, an amount which takes account of the significant value of the 850,000 shares and the evidence that they have significantly changed in value. Security in that amount, in form acceptable to the defendants, shall be posted by Ṣekerbank within 30 days, and held until further order by this Court. If the parties are unable to agree on the form of the security, either of them may apply to me for further direction. [63] note that it is open to the defendants to apply to modify the Order in other respects. Mr. Al-Katib may, for example, decide that he wishes to dispose of the AGT shares and substitute other security. Further, would be prepared to consider an application, whether by consent or otherwise, to modify the Order to provide that the security be provided by both Ṣekerbank and ABank, in shares specified in the Order. [64] Finally, the defendants seek an order pursuant to Rule 4-24 of The Queen’s Bench Rules that the plaintiff post $40,000 as security for costs. Counsel for Ṣekerbank did not take issue with that application. In my view, such an order is justified based on the considerations specified in Rule 4-24. CONCLUSION [65] For the foregoing reasons, it is ordered as follows: 1. The defendants’ application to terminate the preservation order dated January 9, 2014, as amended by the order dated October 30, 2014 [Order], is dismissed. 2. The Order shall be amended to provide that Ṣekerbank shall provide security in the amount of $1 million within 30 days of the date of this order, in a form to be agreed by the parties, and failing such agreement, in a form determined by this Court on further application by any party. 3. Ṣekerbank shall pay the sum of $40,000 into court within 30 days of the date of this order as security for costs, pursuant to Rule 3-34 of The Queen’s Bench Rules. 4. Alternatifbank A.S. shall be added as a plaintiff, and the Statement of Claim may be amended in the manner specified in the draft filed. [66] Given that there has been mixed success on these related applications, there shall be no order as to costs. J. B.A. BARRINGTON-FOOTE

Civil Procedure – Queen’s Bench Rules, Rule 3-72, Rule 3-84Statutes – Interpretation – Enforcement of Money Judgments Act, Section 5, Section 8 The proposed plaintiff, Alternatifbank (Abank) applied pursuant to Queen’s Bench rules 3-72 and 3-84 to be added as a plaintiff to the action of the plaintiff, Sekerbank, against the defendants and to amend the statement of claim. ABank asserted a debt claim against the defendants. The defendants applied pursuant to s. 8 of The Enforcement of Money Judgments Act (EMJA) to terminate the preservation order, which prohibited any dealings with 850,000 shares, or alternatively they sought an order reducing the number of shares subject to the order and requiring the plaintiff to post $3 million as security pursuant to s. 5(7) of the EMJA and $40,000 security for costs. Regarding ABank’s application, it argued that its claim in debt against the defendant arose out of the same transaction based on the allegation that Arslan transferred the shares to a trust (the other defendant was the trustee) in June 2013, the time at which he stopped paying his debts in full and thus denied it the opportunity to collect its debt. ABank sought the same relief as Sekerbank: judgment against both defendants under The Fraudulent Preferences Act and The Fraudulent Conveyances Act. The defendants argued that the limitation period that applied to ABank’s claim had expired and the application should be denied. Regarding the defendants’ application, they argued that the plaintiff’s strategy in the Saskatchewan action was to await the outcome of the proceedings they had initiated in Turkey against the plaintiff. The Saskatchewan action was independent from the Turkish action, and the plaintiff’s approach was unacceptable in the circumstances of the preservation order made against them in 2014. The plaintiff had not prosecuted its actions against them without delay as required by s. 5(c) of the EMJA. The defendants asserted that the share prices increased since 2014 and were now worth $18 million more than the plaintiff’s claim. If the preservation was not terminated, they requested that the number of shares be reduced to 100,000. HELD: The proposed plaintiff’s application was granted. The defendants’ application to terminate the preservation order or to reduce the number of shares subject to the order was dismissed. The court ordered the plaintiff to post $1 million as security under the EMJA and an additional $40,000 as security for costs. The court found that although the limitation period had expired, it would add ABank as a plaintiff and amend the statement of claim pursuant to s. 20 of The Limitations Act, because to do so would not create a wholly new proceeding and the defendants had not provided evidence that they would suffer prejudice. The preservation order was not terminated after the court reviewed the history of the proceedings in both Saskatchewan and Turkey and found that the plaintiff had not failed to prosecute its action without delay. The court found that there was insufficient evidence to justify the reduction in the number of shares subject to the order. The information of the value of the security fell short of demonstrating a sufficient change in circumstances, especially in light of the addition of ABank’s claim. The court found that the order should be modified under s. 5(7) of the EMJA to have the plaintiff provide security because there was evidence that the trust may have suffered and could suffer losses in the future as a result of the order. The order for security for costs was justified based on the considerations specified in Queen’s Bench rule 4-24.

4_2017skqb205.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2006 SKQB 536 Date: 2006 12 15 Docket: Q.B.G. No. 78 of 2004 Judicial Centre: Melfort BETWEEN: TKACHUK FARMS LTD. and LE BLANC AUCTION SERVICE LTD. and RITCHIE BROS. AUCTIONEERS (CANADA) LTD. Counsel: G. Carson for the Plaintiff N. Turcotte and I. Smith for the defendants JUDGMENT WILKINSON J. December 15, 2006 1) In legal circles, fairness of process is every bit as important as fairness of result, hence the saying that justice must be done, and it must be seen to be done. In the auction ring, where the auction is held “unreserved”, public impression is everything. The auction must be clean, and it must appear to be clean, with each fall of the hammer signifying sale to the highest bona fide bidder. An owner of consigned property cannot bid, directly or indirectly, or allow another individual to bid on his behalf. In the old case law, one found these concerns expressed by references to “puffers” or “puffing”, terms used to describe secret bidding at auction by or on behalf of seller, or attempts to run up the price by making spurious bids on behalf of the owner. 2) While a number of issues require exploration in the present case, the preeminent question is whether the plaintiff, the owner of certain farm equipment consigned for sale at unreserved auction, has indirectly allowed another individual to bid on its behalf, or for its own benefit. 3) The plaintiff, Tkachuk Farms Ltd., agreed to sell its entire inventory of farm equipment at unreserved auction on April 12, 2004, for guaranteed return of $577,500. The guarantee was supplied by the defendant, Ritchie Bros. Auctioneers (Canada) Ltd. The auction was to be conducted by LeBlanc Auction Services, newly formed division of Ritchie Bros. The principal of Tkachuk Farms Ltd., one Taras Tkachuk, was purportedly retiring from farming and moving to Saskatoon. 4) Ritchie Bros. had acquired the Saskatchewan company known as LeBlanc Auction Services Ltd., and the transaction was in the closing stages at the time the plaintiff was first approached to become potential customer. In this transitional period, the contractual negotiations between the plaintiff and the defendants generated two standard form agreements, preliminary “LeBlanc” contract dated December 23, 2003, and subsequent “Ritchie Bros.” contract dated March 28, 2004. This raised questions as to which of the two documents contained the pith and substance of the parties’ agreement. 5) After the auction sale was concluded, the defendants refused to pay the plaintiff the guaranteed price. The defendant Ritchie Bros. declared its guarantee unenforceable under provisions of the “Contract to Auction” dated March 28, 2004 and ultimately charged the plaintiff commission of 14% on the gross proceeds. The contractual provision invoked by this defendant, namely (Clause 4.05), reads as follows: 4.05 Default by Owner (b) Owner, directly or indirectly, by agency or otherwise, bids or permits another to bid on Owner’s behalf on the Property or any part thereof at the auction; or ... (d) Owner fails to complete refurbishing in timely manner, as set out in Clause 3.02; or (e) Owner fails to prepare auction site in timely manner, as set out in Clause 3.10; then: (f) Auctioneers’ guarantee of minimum gross proceeds from the sale of the Property shall be unenforceable at the option of the Auctioneers. Clause 4.05 goes on to provide: If, as result of the actions or inactions of Owner, Auctioneers’ guarantee of minimum gross proceeds from the sale of the Property is unenforceable, the commission rate to be paid by Owner to Auctioneers shall be fourteen percent (14%) of the gross proceeds from the sale of that part of the Property sold at the auction and fourteen percent (14%) of the fair market value of that part of the Property not sold at the auction; In the event Owner is in violation of subparagraph 4.05(b), in addition to any other rights or remedies Auctioneers may have under this Contract, Auctioneers shall, at its sole discretion, have the right to sell or re-sell the property by public or private sale and Owner shall pay to Auctioneers as liquidated damages in addition to all other amounts due hereunder, an amount equal to twenty percent (20%) of the proceeds realized from such sale or resale. 6) The first issue, then, is whether Clause 4.05 in the Ritchie Bros. Contract to Auction forms part of the contractual fabric between the parties, or whether, as the plaintiff insists, the terms of the contract were settled by the December 23, 2003 agreement and are to be found partly in writing, and partly in oral representations made by the defendant, LeBlanc Auction Services Ltd. 7) If the March 28, 2004 agreement represents the entire contract between the parties, the next issue is whether the prohibition against the owner bidding directly or indirectly at auction was transgressed when one Orval Caruk, Tkachuk relative and the successful bidder on several large pieces of equipment, was later discovered to have (1) commercial relationship with the plaintiff (leasing all the plaintiff’s cattle), and (2) the benefit of 100% financing from his uncle, Taras Tkachuk, for the sole and express purpose of making the impugned equipment purchase. Taras Tkachuk is the directing mind of Tkachuk Farms Ltd. and its controlling shareholder, with minority shares held by his spouse. 8) The defendants also raised issues of breach of contract insofar as the plaintiff’s alleged failure to refurbish equipment and to adequately prepare the auction site in advance of the sale (clauses 4.05 (d) and (e)). Although these alleged breaches were the focus of considerable attention at trial, they are not central to my decision in the final analysis. 9) If the March 28, 2004 agreement governs the parties and the plaintiff is in breach, there is an issue whether clause 4.05, and its 14% commission rate, amounts to penalty clause, and whether the plaintiff should be relieved of its consequences. 10) Finally, there is an issue concerning combine sold “on terms” to buyer at auction. It was announced at the auction that the plaintiff was willing to take 25% down, and defer payment of the balance until August 1, 2004 with respect to some of the larger pieces of equipment. The combine sold on that basis and with the understanding that the plaintiff would hold the combine as vendor in possession until full payment was received. Before August 1, the defendants attended the plaintiff’s farm without forewarning, removed the combine, and delivered it to the buyer who had paid the balance of the purchase price to Ritchie Bros. directly. The defendant’s justification for proceeding in that fashion is that the plaintiff had actually been paid in full, in that Ritchie Bros. had included the full sale price of the combine when it calculated the gross proceeds of sale, less 14% commission under clause 4.05. The plaintiff argues the taking amounted to trespass and conversion, and seeks damages. 11) As stated, the case has much to do with the unique nature of “unreserved auctions”, where goods are sold to the highest bidder, and the owner is precluded from affecting sale prices either by the use of reserve bids or through involvement, directly or indirectly in the bidding process. Ritchie Bros. has built an international reputation in this domain, and scrupulously enforces their corporate policy to ensure not only that “clean auction” has in fact taken place, but that the public perceives it to be so. Accordingly, there are “no owner buybacks, no artificial or manipulated values, no reserves, and no minimums” and in case where an owner is caught in direct attempt to buy back his own property, or bid up the price, the breach is obvious and the response is swift. An announcement is made to the crowd, and the item is pulled and re-auctioned for sale to the highest bona fide bidder. What constitutes bid indirectly on an owner’s behalf, or for his benefit, is far more elusive question. 12) Where an owner consigning his goods for sale at an unreserved auction has the added benefit of guaranteed price, it is obvious that the full risk of an unsuccessful auction passes to the auctioneer should sale fall short of expectations. 13) For Ritchie Bros., offering guarantees has been commercially viable proposition in the long term. The assumption of risk has, at times, involved significant cost to Ritchie Bros., sometimes in the six or seven figure bracket, cost it pays without hesitation, it says, provided no advantage has been taken by the owner. It is for that reason, among others, that the standard form “Contract to Auction” contains very explicit prohibition against owner involvement in, or influence upon, the auction, or the bidding process and very stringent consequence for breach, namely that the guarantee will be voided. Effectively, it is considered fundamental breach going to the root of the parties’ contract. 14) It is an area of concern has also received legislative attention in the form of s. 57(3) and (4) of The Sale of Goods Act, R.S.S. 1978, c. S-1, which state: 57 In the case of sale by auction: (3) Where sale by auction is not notified to be subject to right to bid on behalf of the seller it shall not be lawful for the seller to bid himself or to employ any person to bid at the sale or for the auctioneer knowingly to take bid from the seller or any such person. sale contravening this rule may be treated as fraudulent by the buyer; (4) sale by auction may be notified to be subject to reserve or upset price and the right to bid may also be reserved expressly by or on behalf of the seller. Where right to bid is expressly reserved but not otherwise the seller or any one person on his behalf may bid at the auction. 15) Besides the considerable risk to business reputation, owner bidding or buybacks can expose the auctioneer at unreserved auctions to liability. The Act states the sale can be treated as fraudulent by the buyer, and fraud will void the sale. Section 58 of the Act also makes it clear that the rules of the common law, and in particular the rules relating to the effect of fraud shall continue to apply. Thus, an auctioneer at unreserved auction who knowingly takes bid from an owner, or person bidding on the owner’s behalf, may find himself facing claim for damages, equitable remedies, solicitor-client costs and any of the other potential consequences of fraudulent transactions. 16) To further reinforce the prohibition against owner buybacks or direct or indirect bidding, all potential customers at Ritchie Bros. unreserved auction sale are required to enter into, and sign, Bidder’s Registration Agreement which states in clause 11 that “No person shall bid on any Lot: (a) of which he is the consignor; or (b) as agent, associate, or on behalf of the consignor.” 17) For additional good measure, an announcement is made to the public prior to the commencement of the auction emphasizing that no owner buybacks or bidding are allowed, and that the goods are sold unreserved to the highest bidder. An open and level playing field is critical to the integrity of an unreserved auction. If an owner is willing to accept terms of payment (a percentage down, the balance at later date) that is similarly announced at the commencement of the auction, and the terms offered are available to all prospective buyers. 18) It is in this context that the issues in the present case arise, as between litigants well versed in auction etiquette. turn to chronology of the events. Factual Background 19) In 2003, Taras Tkachuk, the principal shareholder and operating mind of the plaintiff, Tkachuk Farms Ltd., was planning to exit farming after more than 30 years involvement. He was experiencing some health issues, and although this was not matter of public knowledge, it was generally known in the community that he had rented out the majority of his lands the year previously. He first explored the prospect of major dispersal of farm equipment in 2002 and, at that time, had arranged for local enterprise, Hodgins Auctioneers Inc., to come and inspect his machinery and equipment. He subsequently decided to continue farming for another year. 20) In an announcement made at Agribition in late November 2003, Ritchie Bros. advertised its plan to acquire LeBlanc Auction Services Ltd. (“LeBlanc’s”), small but successful Saskatchewan business specializing in farm dispersals, estate auctions, and other auction services. The formal transaction was not effectively concluded until January, 2004. It was apparently share acquisition, such that LeBlanc’s became wholly owned subsidiary of Ritchie Bros. LeBlanc’s was an established auction company in its own right, and Ritchie’s made proprietary use of the name, advertising the Saskatchewan company as “a division of Ritchie Bros.” 21) In the first flush of togetherness, the defendants were keen to hold an auction in the Melfort area and engage the competition head to head. They wanted to establish themselves as presence in regional market previously dominated, if not monopolized, by the aforementioned Hodgins Auctioneers Inc. Their sales pitch to the plaintiff came at time of significant upheaval when LeBlanc’s was “transitioning” from their established trade practices to those of Ritchie Bros., who had significantly different modus operandi. LeBlanc’s had never been in the business of conducting unreserved auction sales, nor did it have the financial wherewithal to guarantee return to its customers. 22) Lorne Campbell, long-time employee of LeBlanc’s with auctioneering credentials and wealth of auction experience, was charged with seeking out business in the Melfort area. It was he who made the initial approach to Taras Tkachuk, to inquire whether he had any interest in selling his farm equipment at auction. This occurred somewhere around the end of November, 2003. Mr. Tkachuk told him to come and look at the equipment and they could discuss it. Lorne Campbell completed an inspection of the equipment, although several pieces were not easily accessible from the farm site and it is disputed whether Mr. Tkachuk supplied the particulars on these, or whether Lorne Campbell obtained them on his own. 23) In the course of these initial discussions, Lorne Campbell told Mr. Tkachuk of the impending takeover of LeBlanc’s by Ritchie Bros., explaining to him that with Ritchie’s resources, it meant access to huge customer base, and the ability to conduct an unreserved auction, with Ritchie Bros. guaranteeing firm price to the plaintiff. Mr. Tkachuk is not novice when it comes to auction sales and auction practices. He had attended approximately hundred such sales in his farming career. Approximately one-fifth of them were auctions actually conducted by Ritchie Bros, in Edmonton, Alberta. He understood the language of “unreserved bids, no buy backs, and no bid-ins” and has expressly acknowledged that to be the case. He knows that the essence of an unreserved auction is that equipment is sold to the highest bona fide bidder. 24) According to Mr. Tkachuk, he was told by Lorne Campbell he would not have to do anything, the defendants would do everything in preparation for the auction, and could cut him cheque at the end of the sale for guaranteed amount. As corroboration, Mr. Tkachuk pointed to brochure they left him, advertising the comprehensive services provided by LeBlanc including the claim that they could handle “Every detail pertaining to your auction”. He argues this essentially became term of their contract. 25) Mr. Campbell, on the other hand, said he made it entirely clear to Mr. Tkachuk that cleaning, refurbishing and preparation of the equipment was the owner’s responsibility, but as an extra service, and at an additional cost, specialized crews could be provided to the owner to complete these requirements. Despite his adamant insistence that he was expected to do nothing, Mr. Tkachuk did allow that he agreed to refurbish some of the equipment in need of obvious attention specifically Bourgault cultivator with cracked hitch that required welding, truck with broken rear spring, and various pieces of equipment with flat tires. 26) Lorne Campbell took the information gleaned from his inspection of the equipment, and told Mr. Tkachuk he would be back to discuss guaranteed price. He worked on the pricing, in joint effort with Jason LeBlanc, the regional manager for LeBlanc Auction Service, and Kevin Tink, the agricultural division manager for Ritchie Bros. They estimated fair market value for the equipment at auction utilizing Ritchie Bros.’ vast database of information. 27) In the meantime, Mr. Tkachuk approached Hodgins Auctioneers Inc. to see what they might be prepared to offer. representative of Hodgins came out again to look at Mr. Tkachuk’s equipment. 28) Although the sequence of events is not entirely clear, there are indications Mr. Tkachuk was being more than little coy, and not entirely above board, in his efforts to secure the most lucrative price. In the next round of discussions with LeBlanc’s on December 23, 2003, Mr. Tkachuk rejected defendant’s offer of price guarantee in the $555,000 range, saying “the competition” had offered him $5,000 more than that. In fact, when Mr. Tkachuk discussed prices with Grant Hodgins, (the owner of Hodgins Auctioneers), he was told that Hodgins could not possibly match the guaranteed offer from Ritchie Bros. and that $450,000 was what the equipment might fetch at auction, in their best estimation. (This information was gratuitously volunteered by Mr. Tkachuk in his testimony in chief with view to demeaning the defendant’s evaluating skills, but by the same token, reflects poorly on Mr. Tkachuk’s notions of bargaining in good faith.) 29) In the December 23 discussions, Lorne Campbell and Taras Tkachuk were at Mr. Tkachuk’s residence, with Jason LeBlanc participating by phone. They ultimately agreed on guaranteed net of $577,500 to the plaintiff for the equipment, but with the inclusion of one additional piece of equipment that Mr. Tkachuk had earlier declined to sell. It was agreed that any sale proceeds over and above $617,500 would be split 50-50. Any sale proceeds between $577,500 and $617,500 would constitute commission to the defendants (approximately 6.5%). It was not always worded with admirable clarity in later written documents, but insofar as the monetary aspects of their agreement are concerned, there is no dispute that this was the understanding. 30) This agreement was recorded on standard form contract normally utilized by LeBlanc Auction Service Ltd. It was document singularly unsuited to the purpose, because LeBlanc Auction Services did not conduct unreserved auctions and had never, in their years of operation, guaranteed return to owners/consignors. However, the Ritchie Bros. standard form contracts were not yet available to them for use. As such, the “December 23 contract” contained number of seemingly irreconcilable provisions. Specifically, it provided that “the Auctioneer makes no guarantee, representation, warranty or agreement, with respect to the selling price of any consigned property and any estimate by us with respect to the selling price is for information purposes only”. 31) The document of December 23, standing alone, cannot comprise the agreement between the parties as Mr. Tkachuk contends. It was merely stop-gap, and the inherent contradiction in terms (guarantee/no guarantee) are so fundamentally irreconcilable that the contract would be void for uncertainty by any standard. Mr. Tkachuk knew the guarantee was only available from Ritchie Bros. He had expressly conveyed that fact to Grant Hodgins when endeavouring to seek out matching or better offers. Jason LeBlanc, who found to be credible and candid witness, verified that there were explicit discussions during the December 23 meeting regarding the need for Ritchie Bros. contract, and that new policies and procedures would be in place because of that company’s acquisition of LeBlanc Auction Services Ltd. 32) In any event, there are indications Mr. Tkachuk did not feel inescapably bound to contract with the defendants at that point in time. While Mr. Tkachuk testified at trial that his discussions with Mr. Hodgins were before the December 23 meeting with the defendants, that is contradicted by his answers in examination for discovery, where he indicated that Mr. Hodgins was told, very explicitly, of an offer made by Lorne Campbell in the amount of $577,500, guaranteed. Mr. Hodgins said he could not match that offer. Mr. Tkachuk could not have represented that as concrete offer from the defendants at any time before December 23 because it simply did not exist. It might be inferred from this course of conduct that Mr. Tkachuk was continuing to explore more lucrative opportunities after December 23, 2003, and did not feel he had binding contract with the defendants, notwithstanding his assertion that the entire contract between the parties was formed on December 23, 2003. 33) Lorne Campbell says that on December 23 Mr. Tkachuk also asked if he would be allowed to bid at the sale. Mr. Campbell’s response was that it was “no-no” and would void the contract. He explained that it kills the prices, and the buyers will just back right off. To this, Mr. Tkachuk apparently responded “well, can just get someone else to buy it for me”. Mr. Campbell said he “didn’t know anyone around here who would do something like that” or words to that effect. For his part, Mr. Tkachuk absolutely denied ever talking to Lorne Campbell about the prospect of buying back equipment for himself. 34) As it happened, by December 2003 (if not before) Mr. Tkachuk had formed an intention to remain in the cattle business, despite advising the defendants he was retiring from farming. That intention was not communicated. The defendants advertised the auction as farm dispersal auction. Mr. Tkachuk’s impending retirement was considered sufficiently noteworthy to merit special mention in the sale fliers under the heading “Auctioneer’s Note”. It stated: “Taras has rented his land and is retiring from farming to Saskatoon. Taras has large line of good cattle related and farm equipment...”. This is not information that is without relevance to bargain hunters. retiring farmer presumably has no hidden agendas, and no interest other than in disposing of his equipment, once and for all. 35) Tkachuk Farms Ltd. proceeded to make an arrangement with Orval Caruk, described as lease of all the company’s existing and after-acquired cattle herd, with Mr. Caruk providing all labour and services necessary for boarding the cattle and breeding operations and receiving, in exchange, 70% of the proceeds of the sale of all calves born to cattle covered by the agreement. 36) Mr. Tkachuk saw another lawyer (not his counsel at trial) in order to have the lease agreement prepared. Although the agreement is dated February 27, 2004, Mr. Tkachuk is not certain when it was actually signed. Nonetheless, am satisfied the plan was in place by December, 2003 since Schedule “A” to the lease agreement, dealing with after-acquired cattle, contains the following Acknowledgement: Orval Caruk hereby acknowledge [sic] receipt of the undernoted cattle from TKACHUK which shall be governed by the Agreement made between TKACHUK on Dec 15, 2003. This agreement made on December 15th 2003 for the lease off [sic] one hundred and fifty cows or there about [sic] to be purchased before the end off [sic] 2004. Dec 15/2003 30 cows and one Bull Feb 27/04 41 cows and Heifers Mar 11/04 14 cows July 30/04 34 cows and one Bull Oct 26/04 26 cows Dated on Feb 27, 2004 37) Furthermore, Mr. Caruk confirmed that the lease agreement with Tkachuk Farms Ltd. was entered into before the first delivery of cattle to him, and that by late December, 2003 or early January, 2004 he had received the first deliveries of cattle from the plaintiff under the terms of their lease. 38) The plaintiff entered into separate transaction with Bruno Beaudry, specifically, under lease for one year covering 26 head of cattle, with the plaintiff paying to Beaudry 65% of the proceeds of sale of all calves born to the cattle covered by the agreement. Mr. Beaudry was apparently unable to fulfill the terms of lease due to health reasons, and the subject cattle ended up with Orval Caruk at some unspecified point in 2004, albeit under the terms of his lease, rather than Mr. Beaudry’s. 39) None of this was known to the defendants, of course. There was, in fact, very little in the way of communication between the plaintiff and the defendants after December 23. Both parties share the blame for this state of affairs. Having seemingly achieved their major objectives the plaintiff, guaranteed price for his equipment, the defendants, sale in their competitor’s backyard all of them were apparently too busy to attend to details. 40) Lorne Campbell said he did try, repeatedly, to contact Mr. Tkachuk, but Mr. Tkachuk was never available and his wife would say he was gone fishing, or away, or whatever. This is corroborated to some extent by Jason LeBlanc, who said he was extremely upset that Mr. Campbell wasted an entire day sitting in Mr. Tkachuk’s yard trying to get hold of him. Mr. Tkachuk, on the other hand, complains he tried to make contact with the defendants number of times, but they were the ones who were always too busy. 41) In January 2004, Lorne Campbell provided Mr. Tkachuk sign for the purpose of advertising the forthcoming sale. It bore the wrong date. Mr. Tkachuk corrected it and put the sign up himself. 42) By letter dated January 27, 2004, LeBlanc Auction Service Ltd. forwarded list of the equipment to be advertised for sale by auction, requesting Mr. Tkachuk to review it carefully and correct any errors in description. Mr. Tkachuk signed it on February 10, 2004, with the express written acknowledgement that it was the plaintiff who would bear responsibility for any errors or omissions in description. There was in fact an error in the year, and the number of hours of operation in the description of Versatile Tractor. It was out by about 200 hours or more (roughly season’s worth of use). This was not discovered until the day of sale and had to be announced to the crowd, to make the necessary correction. 43) The defendants proceeded to advertise the sale extensively, taking out ads in three provinces and in the northern United States, preparing thousands of catalogues for mass distribution, and directly delivering 1,500 posters to farm yards and mail boxes in Melfort and area. Lorne Campbell dropped off sample copy of the poster with Mrs. Tkachuk, as, once again, he was unable to catch Mr. Tkachuk at home. Having further opportunity at that time to view the state of the equipment, Mr. Campbell was concerned as numerous flat tires had not been fixed yet, and other refurbishing had not been done. In his view, no apparent efforts were being made by Mr. Tkachuk to prepare for sale. Mr. Tkachuk, for his part, was also experiencing some concern because he felt the sale preparation was entirely the defendant’s responsibility and nothing was being done by them. Neither appear to have taken any meaningful steps to address their respective concerns. 44) On March 27, 2004 an independent contractor came to the Tkachuk farm to power-wash all the major pieces of equipment. This was arranged by Mr. Campbell. There was disagreement as to whose responsibility it was to pay for the cleaning. Mr. Campbell said Mr. Tkachuk should pay, Mr. Tkachuk said it was not his responsibility, he had been told they would attend to everything. Lorne Campbell remained at the yard site most of the day, while the equipment was being cleaned. He pointed out to Mr. Tkachuk that flat tires still had not been replaced, the broken hitch was not repaired, and the Morris cultivator needed to be ploughed out of the field where it was sitting (some miles away) and moved to the yard in readiness for the auction sale. 45) On March 28, 2004, Lorne Campbell went back to the Tkachuk farm around 9:00 a.m with the Ritchie Bros. standard form “Contract to Auction” finally in hand. Again, Mr. Tkachuk was not there. Later that evening, Mr. Campbell returned and finally succeeded in catching Mr. Tkachuk at home. They went over the contract. Mr. Tkachuk refused to accept responsibility for the power-washing bill. Clause 3.02 of the Ritchie contract, which deals with the owner’s responsibility to clean and refurbish equipment to standard acceptable to the Auctioneers, was completed rather ambiguously, in the following manner: Owner shall: 3.02 Refurbishing of Equipment (a) paint, clean and refurbish, prior to the auction, the Equipment to standard acceptable to Auctioneers. Should Auctioneers organize and pay for painting, cleaning or refurbishing any part of the Equipment, Auctioneers shall be reimbursed for these costs plus ten percent (10%) provided that the total cost shall not exceed as needed dollars($ Nil without authorization from Owner. 46) find that the handwritten words “as needed” were inserted by Mr. Campbell, and the handwritten words “Nil” were inserted by Mr. Tkachuk, reflecting their disagreement over who bore responsibility for cleaning. am aided in this conclusion by the fact that the handwriting is distinguishably different. The result of this contradictory stipulation is that the provision for reimbursement is rendered wholly insensible. 47) Mr. Tkachuk also struck out/amended other provisions in the contract, namely: (1) part of clause 1.02 which in its generic form allows the Auctioneer 21 days to make payment. He inserted provision that he would be paid on sale day instead; (2) part of clause 3.10 that states if Owner fails to carry out direction from Auctioneer regarding preparation of the auction site within 10 days of the scheduled auction date, Auctioneer may, in its discretion, prepare the auction site at the expense of the owner; (3) part of clause 4.05 (i) requiring Owner to reimburse Auctioneers for all out-of-pocket expenses incurred in preparation for the auction. 48) Mr. Campbell objected to the strikeouts. Despite this, the agreement was signed by both and bears the initials of Lorne Campbell and Taras Tkachuk on each page. Mr. Tkachuk denies initialling two of the pages, but did not say which two. He acknowledged all the pages appear to be initialled, but says everything happened in big hurry because he was in the process of moving cattle, and he had heifers on the road requiring his attention. He said Lorne Campbell had merely indicated nothing had changed from their earlier agreement that this document was just something Ritchie’s needed to “update their file”. observe that Mr. Tkachuk was obviously unconvinced, because he went through the document in some detail. 49) Clause 3.07 of the Contract to Auction of March 27, 2004 states: SECTION 3: OWNER’S OBLIGATIONS AND RESPONSIBILITIES Owner shall: 3.07 No Buybacks, Unreserved Auction Sale not bid, directly or indirectly, nor allow any other person to bid on Owner’s behalf, by agency or otherwise, on the Property or any part thereof at the auction. Owner acknowledges the auction is unreserved and Auctioneers shall have no obligation or duty to withdraw the Property or any part thereof from the auction sale or to cancel the auction. The Property shall be sold to the highest bidder. 50) Under cross-examination, Mr. Tkachuk acknowledged and agreed that with respect to clause 3.07 he was made aware of the provision while reviewing the agreement. However, he said he specifically asked Lorne Campbell whether it would be okay if his son bought at the sale, since his son was going into the cattle business, and that Lorne Campbell said that would be alright. The fact that he put this question, inaccurate as it is, demonstrates he was certainly alive to the possibility of controversy. Mr. Campbell denies it, and says the only discussion was that buybacks would nullify the guarantee. 51) Mr. Tkachuk further acknowledged and agreed that clause 4.15 was not struck out, altered or amended by him in any way. That clause provides: 4.15 Entire Agreement this Contract: (a) constitutes the entire agreement between the parties, and supersedes and takes the place of all prior contracts, understandings, representations or warranties; (b) may not be amended except in writing. There are no understandings, agreements, promises, terms, conditions or warranties expressed or implied, whether orally or by law, statute, or trade usage, other than as specifically stated herein; and (c) shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, administrators, successors and assigns. 52) Mr. Tkachuk requested copy of the contract, and Mr. Campbell had none available an unacceptable business practice by any standard. He told Mr. Tkachuk that copy would be mailed to him, but Mr. Tkachuk only received his copy on the day of the auction sale. 53) Nonetheless, on the cardinal issue, namely the impact of clause 3.07 and the prohibition against the owner bidding directly or indirectly, am satisfied Mr. Tkachuk reviewed and understood the provision. If he asked Lorne Campbell the question about the propriety of his “son” purchasing at the sale because his son was going into the cattle business it does not offer him vindication of any sort. That hypothetical omits two critical factors, the existence of lessor/lessee relationship between the “son” and the plaintiff, and the existence of debtor/creditor relationship created to facilitate the purchase of the equipment. It thus bears no resemblance to the scenario that is now impugned as breach of clause of 3.07 and as constituting form of indirect bidding “on Owner’s behalf.” 54) Jason LeBlanc had telephone conversation with Mr. Tkachuk toward the end of March. He discussed the prospect of Mr. Tkachuk accepting “terms” at auction (25% percent down on April 12, balance payable on buyer taking possession August 1) with respect to some of the larger pieces of equipment: the two Case combines, the Versatile tractor, and the Prairie Star swather. Jason LeBlanc explained that in their experience, if the buyer had time to come up with the balance, it would likely get Mr. Tkachuk more money on the larger items. The fact that an owner is willing to accept terms of payment, and the nature of those terms is announced right at the commencement of the sale. It is an attractive option for buyers of larger, more costly, pieces of equipment. Mr. Tkachuk agreed and document was prepared to that effect which Jason LeBlanc later took to the auction sale for Mr. Tkachuk’s signature. 55) In the days leading up to the sale, Mr. Tkachuk said he became increasingly concerned because nothing was happening. He was told by Lorne Campbell that LeBlanc’s was very busy, he should just go ahead and get started. Lorne Campbell, on the other hand, said he attended at the Tkachuk farm on number of occasions after March 28, and saw nothing was being done so he spoke to Jason LeBlanc about it. With days to spare, Mr. Tkachuk did arrange for woman to come in and clean the cabs in the motorized equipment. He said he only did this because Lorne Campbell had agreed to reimburse him for the cost of this (about $250). He was not repaid. 56) Mr. Tkachuk’s son, Tracy, an instructor in the armed forces in Victoria, B.C. came home to the family farm about week before the sale. It was Tracy Tkachuk who ended up doing all the work in preparation for the sale, with the assistance of neighbour who was paid for his services. No advice or direction was provided by Lorne Campbell, or anyone from LeBlanc’s. In the few days before the auction sale, Mr. Tkachuk was apparently in hospital for monitoring of his heart condition, although he did not communicate this to the defendants. 57) By all accounts, Tracy Tkachuk and his helper did yeoman’s service, lining up equipment for sale, cleaning, and getting the yard site in order. They were not provided with map showing the Auctioneer’s preferred layout, although Jason LeBlanc said that would be the normal practice, and was Lorne Campbell’s responsibility. The Tkachuk’s were not given any lot numbers to display on the equipment, although this, too, appears to be the usual practice. Lorne Campbell said he had discussed with Mr. Tkachuk on March 28 that the equipment should be lined up certain way, and lot numbers could be displayed, but acknowledged he did not actually have the lot numbers with him that day or, apparently, until the day of the sale. 58) On April 11, 2004, the day before the auction sale, Lorne Campbell and Jason LeBlanc attended at the Tkachuk farm. They had number of concerns about the readiness of the yard site for auction, deficiencies in the cleanliness and state of repair of some of the equipment, the configuration of the equipment line-up, and the fact some of the equipment going into the auction (tractor, grain auger) was still in use for feeding cattle. It had, in fact, been in regular and continual use throughout, in connection with livestock requirements and the plaintiff’s ongoing involvement in cattle operations. 59) do not intend to go into these issues in great detail, because these do not ultimately bear on my conclusions in the case. It suffices to say that in connection with the Auctioneer’s obligation to supervise the preparation and organization of the auction, (clause 1.05 of the Ritchie contract) do not believe Mr. Campbell’s supervisory efforts were all that meaningful, and it is clear from Jason LeBlanc’s evidence that Mr. Campbell was charged with that responsibility. 60) By the same token, the plaintiff’s use of certain equipment right up to the date of auction sale, including equipment already power-washed in preparation for sale, is not the norm for someone who is supposedly retiring from farming and proceeding with farm dispersal auction. Of course, as is now apparent, Mr. Tkachuk was not really retiring from farming, and was rather significantly involved in the acquisition, feeding and transporting of cattle. The ongoing use of the equipment put him rather plainly in jeopardy of contravening his obligation to deliver the equipment “in condition equivalent to or better than its condition when viewed by Auctioneer’s representative on or about 27 Mar, 2004" (clause 3.03 (iii) of the Ritchie contract). March 27 was, of course, the date the equipment was power washed in preparation for sale. 61) Of more direct concern is the arrangement between the plaintiff and Orval Caruk regarding the lease of the plaintiff’s cattle, and financing arrangement for the purchase of equipment at auction sale. Orval Caruk testified he did not have any money of his own to buy equipment at the auction, but made an arrangement to borrow up to $100,000 from his uncle for that purpose. He said that all came about prior to April, 2004 when there were discussions between he and Mr. Tkachuk about the pricing of the equipment and Mr. Tkachuk commented he was getting “a huge dollar” for the sale. With that information imparted to him, Mr. Caruk decided to ask his uncle to finance him for the purchase of some equipment. He reasoned that since he was leasing his uncle’s cattle, and would continue to receive cattle, such an arrangement made sense as purchasing equipment would assist him to meet his obligations under the lease. To put it in another perspective this would enable Mr. Caruk, single individual, to acquire roughly one-sixth of the anticipated value of the entire equipment at auction, without paying dollar down. Mr. Tkachuk was prepared to facilitate that arrangement. 62) At the auction sale, Orval Caruk signed the Bidder’s registration card. He did not inquire about his ability to bid, and did not tell anyone of his relationship to Mr. Tkachuk, or of his legal associations with the plaintiff, Tkachuk Farms Ltd. Obviously, he told no one of the financing he had received from his uncle. He ultimately purchased $88,983 worth of equipment at the auction, including tractor, flat-deck trailer, goose-neck cattle trailer, truck-tractor, hay trailer, and round baler equipment useful in cattle operations although obviously for other general farming purposes as well. Sometime after the sale, Mr. Caruk signed promissory note in favour of Taras Tkachuk in the amount of $90,000 with interest at 5% from April 13, 2004, payable on demand. He acknowledged that nothing at all has been paid on this promissory note to date, despite the fact some two and one-half years have passed since the date of the auction sale. 63) The auction sale proceeded, although not auspiciously. 266 bidders were registered in person, supplemented by internet bidders and proxy bidders. Jason LeBlanc had to make an announcement correcting the year and hours of operation on the Versatile tractor. He said this can have an adverse effect on an auction, because purchasers come prepared, have done their homework, and secured financing, and if the hours are off by season’s worth of use or more it has negative impact. He was the one that discovered the mistake. There are apparently two instrument settings on the dial, one that gives hours of use at last maintenance, one that gives total hours of use. He conveyed this to Mr. Tkachuk and was surprised that Mr. Tkachuk was not aware of the fact. Mr. Tkachuk blamed Mr. Campbell for the error. Mr. LeBlanc pointed out it was the owner’s responsibility to verify the accuracy of information, since no one knows the equipment better. 64) As earlier agreed between Mr. Tkachuk and Jason LeBlanc, it was announced at the commencement of the sale that the plaintiff was prepared to accept “terms” of 25% down and balance by August 1, on the four large pieces of equipment identified, with the plaintiff retaining possession and insuring the items until paid in full. 65) As the auction progressed, Jason LeBlanc sensed things were not going well. The crowd was unresponsive, and it became increasingly evident the auction sale was not going to meet target expectations. He said it happens sometimes and if you have guaranteed the owner price, you accept your losses, cut your cheque and move on. But some red flags started going up as he observed single bidder buying more and more of the larger pieces of equipment. In his considerable years of experience it was an unusual pattern, since most buyers at auction tend to limit themselves to one big item. He did not know at the time who Bidder #195 was, or that he had any connection whatsoever to the plaintiff. He simply noted that Bidder #195 was purchasing cattle-related equipment in quantities that exceeded the norm for single auction sale. 66) Lorne Campbell was in the midst of the crowd. He, too, felt something was up. He wondered if Bidder #195 was “jockey”, someone who purchases at auction with view to resale to specific customer. As the buyer’s residence is always announced with each fall of the hammer, he knew Bidder #195 came from Weirdale. He recalled Mr. Tkachuk speaking of nephew from Weirdale. Bidder #195 was Orval Caruk. Whether Lorne Campbell directly confronted Mr. Caruk with his suspicions is neither here nor there. He says he did Orval Caruk cannot remember it happening. 67) After the sale was over, Lorne Campbell told Jason LeBlanc he smelled rat. Jason LeBlanc agreed. They conveyed their concerns to Robert Caulfield, Ritchie’s Bros. Senior Manager and the person charged with handling legal and litigation related issues for the company. Taras Tkachuk demanded to be paid the full amount of his guarantee, and the defendants wanted time to investigate the matter further. The gross proceeds of the auction sale were only $452,800, well short of expectations. 68) Mr. Tkachuk was directed to contact Robert Caufield, by phone. Mr. Caufield reiterated and explained to Mr. Tkachuk their no buy-back policy and that there were concerns this had been contravened. He explained that there would be need to investigate and collect information before any money changed hands. He explained if the concerns were justified they would be relying on clause 4.05 of the contract which nullifies the guarantee, and provides for commission rate of 14% to Ritchie Bros. on the gross proceeds of sale. He set out the concerns in greater detail in letter to the plaintiff’s lawyer dated April 22, 2004. Of course at that time, the defendants did not have all the details of the arrangements between the plaintiff and Mr. Caruk, nor did they know of the terms given to Mr. Caruk for 100% financing of the equipment purchased at auction. These details emerged only in the course of these proceedings, which were commenced on May 11, 2004. As such, more significant emphasis was placed on the lesser issues such as failure to refurbish, and failure to prepare the auction site adequately. 69) To add another wrinkle, combine that was sold at auction “on terms” was sold to an individual named David Espenant, of Hudson Bay. The terms were down payment of $20,500 and the balance of $36,750 due and payable on or before August 1, 2004, with the combine being held and insured by the plaintiff until full payment was received. (A Case header was also included in the purchase.) However, on April 21, 2004 the defendants paid the plaintiff $387,799.25 as its share of the auction proceeds. This was calculated by deducting the defendant’s 14% commission ($63,392), and the pressure washing bill and other incidental charges ($1,608.75), from the total auction proceeds of $452,800. The total auction proceeds therefore included Mr. Espenant’s full purchase price for the combine and header, even though $36,750 had not yet been paid. It was Ritchie Bros. that was out this money. 70) Somehow or other, it was arranged that Mr. Espenant would pay Ritchie Bros. directly, rather than the plaintiff. Lorne Campbell then attended at the Tkachuk farm on July 27, 2004 without forewarning, and in Mr. Tkachuk’s absence, entered the shed, and removed the combine, using master key that he had in his possession. The plaintiff accordingly claims the unpaid amount, not as unpaid purchase price he had already been inadvertently paid when the sum was included in the gross auction sale proceeds but as damages for trespass and conversion. 71) The plaintiff’s claim is for $189,700.75, being the difference between the guaranteed amount of $577,500 and the amount actually paid of $387,799.25, and the additional claim for damages for trespass and conversion, in the amount of $36,750, related to the “unlawful taking” of the combine. 72) The Ritchie Bros. Contract to Auction dated March 28, 2004 is valid, enforceable and unambiguous contract, with the single exception of clause 3.02. resolve any ambiguity in favour of Mr. Tkachuk. The contra preferentum rule is principle of interpretation applying to contracts generally. Where there is any ambiguity in term of contract, it is resolved against the author, and in favour of the other party to the contract who did not participate in its drafting, or had no opportunity to modify its wording: Hillis Oil Sales Ltd. v. Wynn’s Canada Ltd. 1986 CanLII 44 (SCC), [1986] S.C.R. 57. Ritchie Bros. has, in clause 4.21 of the contract, provision that makes the entire contract subject to the approval of Head Office and the ability to nullify it within twenty days of signing. It had the last say, and the ability between March 28 and April 12, to resolve any apparent ambiguities in the language. It chose not to do so and proceeded to auction based on the contract as it stood, replete with amendments and strikeouts effected by Mr. Tkachuk. That has consequences for its claim to be reimbursed for the power-washing, and it is my conclusion that this amount was improperly deducted from the proceeds of sale payable to the plaintiff. 73) As for Mr. Tkachuk, am satisfied he read the contract thoroughly, deleted those portions he found offensive, and clearly understood it contents. Mr. Tkachuk is an intelligent individual and an astute businessman, who understands the nature and importance of legal contracts. Even in family dealings (i.e. with Orval Caruk) he was careful to have legal documents properly drawn up and executed. He presumably would have had no difficulty in accessing legal advice, had he so chosen. He argues that Lorne Campbell expressly represented to him that nothing had changed, the document was just something Ritchie Bros. required for their files. He knew that was not the case, otherwise why did he bother to go through and make any number of amendments? 74) The defendants cite Lord Denning in Gallie v. Lee, [1969] Ch. 17 at 36-37 (C.A.) where he said: ...whenever man of full age and understanding, who can read and write, signs legal document which is put before him for signature by which mean document which it is apparent on the face of it, is intended to have legal consequences then, if he does not take the trouble to read it, but signs it as it is, relying on the word of another as to its character or contents or effect, he cannot be heard to say that it is not his document.... 75) Here, Mr. Tkachuk did in fact take the trouble to read the contract, rather carefully it seems, and has readily acknowledged he understood its contents. He is contractually bound by its terms and precluded from asserting otherwise. 76) The fact that the contract contains an “entire agreement” clause is also detrimental to the plaintiff’s position. The following quotation from Parrish Heimbecker Ltd. v. All Peace Auctions Ltd., 2001 ABQB 1104 (CanLII), (2001), 309 A.R. 62 (Q.B.), at paragraph 111, aptly summarizes the consequences: ...Moreover, there is an “entire agreement” clause included in the Auction Contract, being Clause of the Terms and Conditions of the Auction Contract. Clauses of that nature, subject to the wording of the particular clause at issue, generally have the effect of rendering inadmissible extrinsic evidence to prove terms other than those in the written contract. (Chitty on Contracts at para. 12-102) And, as additionally noted in Ritchie Bros. Auctioneers (Canada) Ltd. v. AIMS International Systems Inc., 2003 BCSC 1111 (CanLII), [2003] B.C.J. No. 1680 (B.C. S.C.) (QL) at para. 24: Even if there was evidence of pre-contractual representation, the representation would not override the specific terms of the contract. Paragraphs 4.15 and 4.16 of the contract supersede any prior understandings, representations or warranties. The contract constitutes the entire agreement between the parties. The contract is clear on its face; commission is payable if the defendants fail to deliver the equipment. Subject to the defence of estoppel, the corporate defendants are bound by the terms of the contract. 77) The latter case dealt with claim by Ritchie Bros. for the contractually stipulated commission in circumstances where an owner withdrew equipment from the sale. Ritchie Bros.’ right to commission was upheld by the court, as constituting genuine pre-estimate of damages. 78) Ritchie Bros.’ failure here to provide copy of the auction contract to the plaintiff until the day of the auction sale is highly objectionable business practice. However, in the end, it cannot absolve the plaintiff of contractual commitments accepted by executing the contract with knowledge of its contents. Consumer protection legislation provides remedies to individuals affected by unfair trade practices where the transactions relate to goods and services ordinarily provided for personal, family or household purposes (The Consumer Protection Act, S.S. 1996, c. C-30.1). The present situation falls outside the ambit and scope of the legislation: see Statutory Regulation of Unfair Business Practices in Saskatchewan: Possibilities and Pitfalls, Prof. Tamara M. Buckwold, Saskatchewan Law Review (1999), 62 Sask. L. Rev. 45‑84. Did the Plaintiff breach Clause 3.07 of the contract? 79) The provisions of clause 3.07 prohibiting an owner from bidding directly or indirectly, and from allowing any other person to bid on his behalf, and the similar concerns that are addressed in s. 57(3) and (4) of The Sale of Goods Act, supra, reflect principles that have an ancient provenance. 80) The Court of Exchequer Chamber in Warlow v. Harrison (1859), E. E. 309, 120 E.R. 925, addressed the issue in case where the auctioneer, at an auction without reserve, completed sale to the owner on bid one guinea higher than the immediately preceding bid by the plaintiff. At page 928, they stated: ...the auctioneer who puts the property up for sale upon such condition pledges himself that the sale shall be without reserve; or ... contracts that it shall be so; ... this contract is made with the highest bonâ fide bidder; and, in case of breach of it ... he has right of action against the auctioneer.... 81) As human ingenuity evolved so did the law, and the prohibition against direct bidding by an owner was extended to include indirect forms of bidding by another individual on the owner’s behalf. An early example of statutory prohibition similar to the provisions currently found in The Sale of Goods Act is found in 31Vic. Ont. passed in 1868. 82) In Heron v. Moffatt, [1875] O.J. No. 205 (Ont. Ch.) (QL), the court held that the 1868 Ontario statute, 31 Vic., ch. 28, was passed for the purpose of putting an end to the conflict between the Courts of Law and Equity, as to the validity of sales where “puffer” was employed. At para. 21, the court said that the statute: .... defines puffer to mean person appointed to bid on the part of the seller, in this respect differing from the Imperial statute on the same subject, which defines it to be person appointed to bid on the part of the owner; and enacts that the sale shall be taken to be without reserve, unless otherwise stated in the conditions [22 Gr Page376] or particulars of sale, and upon any sale without reserve it shall not be lawful for the seller or for puffer to bid. 83) In Jones v. Huntingdon, [1870] O.J. No. 370 (Ont. Ch.) (QL) there was claim for specific performance of contract regarding an auction sale of lands at which the plaintiff was bidder. The defendant argued that the plaintiff bought the land as defendant’s agent, that plaintiff was “puffer” and the sale was illegal since the auction sale was without reserve and that the whole proceeding was scheme of the plaintiff to get the lands cheap. In deciding whether the defence should be struck as scandalous, the Court was of the view that an assertion that purchase was in contravention of “the Act against puffers, 31 Vic. Ont. 1", was relevant plea and should not be struck. 84) The risk usually assumed by the owner of goods offered for sale at an unreserved auction is described in these terms in the case of O'Connor v. Woodward, [1875] O.J. No. 245 (Ont. Ch.) (QL), also reported at P.R. 223 at para. 14: According to the standing conditions under which this property was offered for sale, the highest bidder is the purchaser, and the highest bidder cannot be deprived of his right by the auctioneer refusing to knock the property down to him: McAlpine v. Young, Chy. Ch. 171. When the property was offered for sale on the 7th of March, there being no reserved bid, think the provisions of the 31 Vict. c. 28, (O.), applied, and the sale must be deemed to have been without reserve, and therefore it was not open to the vendors, having once offered the property for sale, to refuse bid, however small. Mere inadequacy of price, unless so great as to be evidence of fraud, is no ground for refusing specific performance of contract biter partes: Emery v. Wase, Ves. 517; nor yet for opening biddings: Ware v. Watson, DeG. M. G. 739; Creswick v. Thompson, Prac. R. 52; and where the sale is by auction, that fact of itself is generally considered bar to enquiry as to the adequacy of consideration: White v. Damon, Ves. 30; Ex parte Latham, Ves. 35, note; Shelly v. Nash, Madd. 232. 85) This considerable risk passes to the auctioneer, where the auctioneer has contracted to provide the owner guaranteed return. Contractual provisions such as Clause 3.07 and 4.05 in the Ritchie Bros. contract, are the understandable response, to ensure the sale proceeds without concealment or deception on the part of the owner, and with due regard for the rights and interests of bona fide bidders. 86) more contemporary review of the nature of unreserved auctions can be found in Proctor v. Almansask Distributors Ltd. and Welsh (1984), 37 Alta. L.R. (2d) 164, (Alta. Prov. Ct.) where the Court said at para. 6: The opinions expressed in Warlow v. Harrison also reflect the unilateral contract approach: (1) The contract is made with the highest bona fide bidder. He alone meets the conditions peculiar to an auction without reserve: (a) neither the seller nor anyone on his behalf shall bid; and (b) the highest bidder shall be entitled to the sale of the property. The lower bidders do therefore not have contract: contra, Gower (1952), 68 L.Q. Rev. 457‑58. Lower bids lapse when higher bid is made: Ontario Law Reform Commission Report on Sale of Goods, vol. at p. 88, relying on Treitel on Contracts, 4th ed., at p. 8. (2) It is immaterial whether bid by or on behalf of the owner is made with the knowledge or privity of the auctioneer and also immaterial whether it is the final bid or whether it is made while the property is under the hammer. Any such bid does not comply with the conditions and breaches the auctioneer's contract. (3) If the auctioneer knows that bid is made by or on behalf of the owner, such bid is not revocation of the auctioneer's authority. The auctioneer should refuse the bid on the grounds that the sale is "without reserve". The owner cannot be the buyer, for he shall not bid. And at paragraph 9, the Court concludes: ...if the conditions specify sale without reserve, the auctioneer's call for bids amounts to an offer to sell to the highest bona fide bidder as determined in accordance with the conditions of sale. The conditions apply throughout the auction even when the auctioneer purports to complete sale which does not comply with the conditions: McManus v. Fortescue, [1907] 87) The essential phrase in clause 3.07 for present purposes is “...nor allow any other person to bid on Owner’s behalf, by agency or otherwise...”. The defendants refer to number of decisions, in variety of contexts, that have interpreted “on behalf of” an owner as meaning “for the benefit of” the owner: See Strata Plan VR 368 v. Marathon Realty Co. (1982), 1982 CanLII 493 (BC CA), 141 D.L.R. (3d) 540 (C.A.) at para. 16; Gilbert v. British Columbia (Forest Appeals Commission), 2002 BCSC 950 (CanLII), [2002] B.C.J. No. 1491 (B.C. S.C.) (QL), at paras. 26 and 27. The latter case was appealed, and in decision reported at 2005 BCCA 117 (CanLII), [2005] B.C.J. No. 408 (B.C. C.A.) (QL), the British Columbia Court of Appeal said, at paragraph 20: In my opinion this finding was both reasonable on the evidence and under the statute. In addition, it was correct in law. Dictionary definitions make it clear that the term “on behalf of” includes or means “for the benefit of”.... 88) In the context of the issues before me that interpretation is logically consistent, and the issue therefore becomes: did the plaintiff allow Mr. Caruk to bid for the plaintiff’s benefit? 89) It seems Mr. Tkachuk was alive to the risks inherent in contravening clause 3.07. He skirted the issue by asking Lorne Campbell whether son going into the cattle business could bid at the sale. Why pose question in that manner? Mr. Tkachuk knew exactly what he was doing with his cattle business, so why put questions in the hypothetical? Jason LeBlanc testified that relatives of the owner can and do bid at auction quite frequently. There is nothing ostensibly wrong with that, provided the fact is disclosed openly to the attending crowd. It is not the existence of family relationship, per se, that offends the contractual prohibition. family member can be bona fide purchaser as well as anyone else, but the nature of an unreserved auction dictates that such relationships be disclosed to the public. The essence of the problem, and the underlying purpose behind clause 3.07, is to protect bona fide bidders, and to ensure that there is be no surreptitious bidding by another for the owner’s benefit. 90) Did the plaintiff allow Mr. Caruk to bid at the sale for the plaintiff’s benefit? Certainly. It went beyond the passive act of “allowing” him to bid. It actively facilitated the bidding. Mr. Caruk acknowledged he had no money to buy equipment. Mr. Tkachuk lent him up to $100,000 for that express purpose. It is immaterial that the loan came from Mr. Tkachuk personally rather than from the company he controls and directs. Did the plaintiff benefit? Certainly. It has leased all its cattle to Mr. Caruk and the equipment will be of significant value to the fulfilment of that contract. It is immaterial that it can be put to other uses as well. “For the benefit of the owner” does not have to mean for the exclusive benefit of the owner. 91) All one needs to ask is whether any of the other bidders at auction might have been interested in purchasing that same equipment on equivalent terms to those made available to Mr. Caruk immediate possession, no money down, no fixed date for repayment, and interest at 5% per annum until paid. The fact that nothing has been paid on the debt in two and one-half years underscores the concern The undisclosed arrangement between Mr. Tkachuk and Mr. Caruk gave the nephew a significant advantage at auction. That advantage was magnified by the fact he possessed “insider information” – he knew his uncle had guaranteed price from Ritchie’s for the equipment, because that information, which is not generally disseminated to the public at large, had been imparted to him by his uncle. 92) All one needs to add is that Mr. Tkachuk would have profited very significantly had his arrangement with the nephew gone undiscovered. He would have secured guaranteed price, while procuring the commercial advantages of having his cattle lease fulfilled using equipment the nephew could not otherwise have afforded to purchase. 93) In an area of commercial enterprise where bona fides are of fundamental importance, and particularly where an owner has the advantage of guaranteed price from the auctioneer “huge” price as Mr. Tkachuk put it to his nephew deliberate non-disclosure of material information can have an impact every bit as significant as deliberate and obvious misrepresentation The plaintiff should have disclosed the arrangements with Mr. Caruk to the defendants. In not doing so, and in allowing and enabling Mr. Caruk to bid at the auction, the plaintiff breached clause 3.07. 94) The decision in Kam’s Industrial Auctions Ltd. v. 331616 Alberta Ltd. (c.o.b. Ed Wiebe Contracting), 1990 CanLII 5549 (AB QB), [1990] W.W.R. 605 (Alta. Q.B.) was cited by the plaintiffs. Kam’s case involved situation where the auctioneer declared the price guarantee unenforceable for the owner’s failure to deliver equipment on time, in good working condition, and properly refurbished. The court was of the view the breaches were minor and the auctioneer was aware of the breaches for month and half before the sale took place. The owner argued that by proceeding with the sale, the auctioneer was estopped from relying on its right to terminate the price guarantee. The court agreed, holding that clause 3.02 gave the auctioneer the right to pay for the refurbishing and demand repayment from the owner, and the reasonable course would have been to for the auctioneer to give notice to remedy the defects rather than proceeding with the auction and invoking the provision nullifying the guarantee. 95) If had determined this matter involved nothing more than alleged breaches of Owner’s responsibility for refurbishing, or preparing the yard site, this case would have bearing. have concluded otherwise. breach of clause 3.07 strikes at the very foundation of agreements relating to unreserved auctions. Does Clause 4.05 constitute penalty? 96) The plaintiff argues that the consequence imposed for breach are in the nature of penalty, rather than liquidated damages. Snell’s Principles of Equity (27th ed. 1973) at page 535, which is cited with approval in H.F. Clarke Ltd. v. Thermidaire Corp. 1974 CanLII 30 (SCC), [1976] S.C.R. 319, states the applicable doctrine as follows: The sum will be held to be penalty if extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach. 97) In H.F. Clarke Ltd., supra, the amount exacted by the contract for breach of non-competition covenant was almost three times the amount the courts would have awarded on ordinary principles governing the assessment of damages. The Supreme Court of Canada stated that the contractual stipulation for liquidated damages was “disproportionate and unreasonable when compared with the damages sustained or which would be recoverable through an action in the courts”. The party in breach was relieved from the consequences of the penalty clause, and the issue of damages was remitted back for determination in the ordinary course. 98) For those cases where the conceivable losses arising from breach of covenant are not so readily quantifiable, the seminal decision of the House of Lords in Dunlop Pneumatic Tyre Co. v. New Garage and Motor Co. (1915) A.C. 79 (H.L.) enunciates the doctrine in more apt terms, saying: ...where the agreement is for an act other than the payment of money and the injury that may result from breach is not ascertainable with exactness, depending upon extrinsic circumstances, stipulation for damages, not on the face of the contract out of proportion to the probable loss, may be upheld... 99) The difficulty in assessing damages in the case of breach of clause 3.07 is obvious, particularly when the breach is only discovered after the auction sale is concluded. In S. M. Waddams, The Law of Contracts, (4th ed.), (Toronto: Canada Law Book, 1999), the author describes the difficulty of ascertaining damages in auction sales in other contexts, but the concerns are of equal force in the present one. At para. 35, the author asks: ...Would the auctioneer be liable to all potential bidders or only to the one who would have been the highest? If to all, what is the measure of damages reliance expenses or the loss of the chance of bidding successfully? If to the highest bidder, is an auction to be held in the court to determine who that would have been?... 100) How does one measure the loss to business reputation? If the extent of the loss likely to be caused by the breach is difficult to estimate, that is good reason for upholding the parties’ agreement: see McCuaig v. Kilbach 1945 CanLII 407 (SK CA), [1945] D.L.R. 117 (Sask. C.A.). 101) The provision for 14% commission on the gross proceeds of sale as consequence of breach of fundamental term of the contract is not extravagant or unconscionable and, as the defendants pointed out, they did not elect to exercise their conjunctive right in clause 4.05 to additional amounts as liquidated damages. The concluding paragraph would have entitled them, in addition to all other rights and remedies, to re-sell the property acquired by Mr. Caruk and to retain an amount equal to 20% of the proceeds realized. 102) In Ritchie Bros. Auctioneers (Canada) Ltd. v. AIMS International Systems Inc., supra, commission of 12% on the first $300,000 and 20% over $300,000 on the fair market value of equipment withdrawn by the owner from auction sale was considered to be fair, and genuine pre-estimate of damages, in circumstances where Ritchie Bros. had given the owner guaranteed minimum selling price on its equipment. 103) am satisfied the provision for 14% commission on the gross proceeds of sale does not constitute penalty. Damages for trespass and conversion regarding the combine sold to David Espenant? 104) On July 27, 2004 when Lorne Campbell entered onto the plaintiff’s property and removed the combine, the defendant Ritchie Bros. had paid the plaintiff in full by including the entire price of the combine in the gross proceeds of the auction sale and paying the same to plaintiff on April 22, 2004, less its 14% commission. Mr. Espenant had, as result, paid the balance of his unpaid purchase price to Ritchie Bros. The plaintiff argues his possessory lien over the combine continued because the unpaid balance was not remitted to him, and thus the taking by the defendants was an unlawful one. 105) The defendants rely on clause 3.03 of the “Contract to Auction”. Under this provision, the owner is to deliver the equipment to the auction site together with documents evidencing title, properly endorsed, and it concludes with the following words: 3.03 Delivery ... Owner hereby assigns Power of Attorney to Auctioneers for the limited purpose of executing on Owner’s behalf, all documents required to transfer title to, and permit registration or ownership of, any part of the Property by the purchaser thereof. The defendants also rely on clause 4.08 of the same contract, which states: 4.08 Creation of Lien in addition to any other rights or remedies available to Auctioneers, this Contract creates lien and charge upon the Property and may be registered under any Personal Property Security legislation as may be in effect from time to time and entitles the Auctioneers to seize and retain possession of the Property as security for, and/or to sell the Property to recover, all sums owing thereunder. 106) One might also add that clauses 4.11 and 4.12 have some bearing. They state (emphasis added): 4.11 Collection of Proceeds Auctioneers shall collect the full proceeds from the sale of the Property and Owner assigns to the Auctioneers: (a) the amount required to discharge and satisfy all charges, liens, claims, mortgages and encumbrances in respect of the Property; and (b) all amounts payable to Auctioneers hereunder, including commission and any advances, together with interest thereon which shall be repayable at the time of the sale. 4.12 Uncollected Proceeds Auctioneers may, as it deems necessary, re-auction any part of the Property not sold or paid for at the auction... 107) The combined effect of these provisions and the clear expression in clause 4.11 that it is the auctioneer’s responsibility to collect sale proceeds means that there could be no basis for objection if Mr. Espenant paid his unpaid balance to the auctioneers. Once he paid, he was entitled to possession of the combine. The auctioneers had limited power of attorney for the purpose of permitting the buyer to have ownership of the property purchased. The actions of Lorne Campbell on July 27, 2004 appear odious and high-handed, in light of the fact that legal proceedings were already underway, however it does not automatically follow that those actions constituted trespass in law. 108) In Perlitz v. DBM Heating and Air Conditioning Ltd., [1994] O.J. No. 1167 (Ont. Gen. Div.) (QL), the Court held that party taking possession of property under contractual right to do so (in that case an unpaid seller, DBM) was entitled to resort to ruse, or contrivance, to gain entry to the purchaser’s (plaintiff’s) premises for that purpose, provided there was no breach of the peace. In that case, DBM gained entry to the purchaser’s residence by misleading the housekeeper. In the Court’s opinion there was no trespass. These comments appear at paras. 61 and in 64-65: 61 The leading case in Ontario on repossession of goods is the decision of the Court of Appeal in Stackaruk v. Woodward et al., 1966 CanLII 284 (ON CA), [1966] O.R. 32 where, at p. 34, the classic statement in Bl. Com., pp. 3-4, is expressly approved, as follows: The right to recaption without process of law may exist at common law, by contract or by statutory authority. The limitations upon that right are stated in Bl. Com., pp. 3-4, to be II. Recaption or reprisal is another species of remedy by the mere act of the party injured. This happens when any one hath deprived another of his property in goods or chattels personal ... in which case the owner of the goods ... may lawfully claim and retake them wherever he happens to find them, so it be not in riotous manner, or attended with breach of the peace. The reason for this is obvious; since it may frequently happen that the owner may have this only opportunity of doing himself justice: his goods may be afterwards conveyed away or destroyed, and his wife, children, or servants concealed or carried out of his reach; if he had no speedier remedy than the ordinary process of law. If therefore he can so contrive it as to gain possession of his property again without force or terror, the law favours and will justify his proceeding. But as the public peace is superior consideration to any one man's private property; and as, if individuals were once allowed to use private force as remedy for private injuries, all social justice must cease, the strong would give law to the weak, and every man would revert to state of nature; for these reasons it is provided that this natural right of recaption shall never be exerted where such exertion must occasion strife and bodily contention, or endanger the peace of society. 64 It is also appropriate to deal at this point with the submissions on behalf of the plaintiff to the effect that DBM's representatives by entry to the house be means of ruse committed trespass. In my opinion there was no trespass. 65 Under the amended terms of the original contract DBM had the right to retake the goods in any of the circumstances there stipulated. As read the decision in Stackaruk, supra, and the excerpt therein from the Court of Appeal decision in R. v. Shand (1904) 1904 CanLII 109 (ON CA), O.L.R. 190, the actions of DBM in this case do not amount to trespass because its representatives entered pursuant to the provisions of the governing contract and did so without breach of the peace and so there was no trespass. The contractual provisions confer licence, exercisable in certain circumstances to enter the premises of the plaintiff where the goods are situate. 109) The plaintiff’s claim for damages for trespass and conversion must be dismissed. 110) The defendant’s claim solicitor-client costs pursuant to clause 4.03 of the contract which provides as follows: 4.03 Legal Costs should either party be required to participate in any action or proceeding in respect of this Contract, the prevailing party shall be entitled to recover all costs incurred, including legal fees, on solicitor and own client basis. 111) Having prevailed on all aspects of the litigation other than on the minor issue of the costs of power-washing, which conclude were wrongfully deducted from the sale proceeds, the defendants are prima facie entitled to costs on solicitor and client basis, but in the circumstances there are issues whether they should be restricted to one set of costs, and other issues relating to appropriate quantum. The issue of costs will be assessed by me on application made pursuant to Rule 565, with the defendants serving upon the plaintiff, and filing, draft bill in the form required for solicitor and client bill, an affidavit of disbursements, and written argument, and allowing the plaintiff 14 days to reply. If required, special time may be set aside for the hearing in consultation with the registrar. (1) The plaintiff will have judgment against the defendants in the amount of $1,316.64 together with prejudgment interest calculated in accordance with the provisions of The Pre-Judgment Interest Act, S.S. 1984-85-86, c. P-22.2, from the 12th day of April 2004 until paid, the said amount representing the power washing bill wrongfully deducted from the auction sale proceeds payable to the plaintiff; an (2) In all other respects, the plaintiff’s action is dismissed with costs, to be determined on a solicitor client basis, upon further application by the defendants under Rule 565 as herein directed. J. Y.G.K. Wilkinson

The primary issue is whether the plaintiff, the owner of certain farm equipment consigned for sale at unreserved auction, has indirectly allowed another individual to bid on its behalf, or for its own benefit. The plaintiff corporation agreed to sell its entire inventory of farm equipment at unreserved auction for a guaranteed return of $577,500. The guarantee was given by the defendant corporate auctioneers (Ritchie). The auction was to be conducted by the defendant corporate auctioneers (LeBlanc), a newly formed division of Ritchie. After the auction sale was concluded, the defendant refused to pay the plaintiff the guaranteed price. The defendant declared the guarantee unenforceable under provisions of the 'Contract to Auction' and ultimately charged the plaintiff a commission of 14% on the gross proceeds. The defendant alleges that the plaintiff indirectly allowed another individual to bid on its behalf or for its own benefit. HELD: 1) Clause 3.07 of the Contract to Auction prohibits an owner from bidding directly or indirectly, and from allowing any other person to bid on his behalf. The issue here is whether the plaintiff allowed a family member to bid for the plaintiff's benefit. A family member can be a bona fide purchaser as well as anyone else, but the nature of an unreserved auction dictate that such relationships be disclosed to the public. The essence of the problem and the underlying purpose behind clause 3.07 is to protect bona fide bidders, and to ensure that there be no surreptitious bidding by another for the owner's benefit. 2) The plaintiff allowed Mr. Caruk to bid at the sale for the plaintiff's benefit. It went beyond the passive act of allowing him to bid. It actively facilitated bidding. Mr. Caruk acknowledged he had no money to buy equipment. The plaintiff lent him up to $100,000 for that express purpose. It is immaterial that the loan came from Mr. Tkachuk personally rather than from the plaintiff company he controls and directs. The plaintiff corporation benefited. It has leased all its cattle to Mr. Caruk and the equipment will be of significant value to the fulfillment of that contract. 'For the benefit of the owner' does not have to mean for the exclusive benefit of the owner. 3) The undisclosed arrangement between Mr. Tkatchuk and Mr. Caruk gave the nephew a significant advantage at auction. That advantage was magnified by the fact that he possessed insider information. He knew his uncle had a guaranteed price from Ritchie's for the equipment, because that information had been imparted to him by his uncle. All one needs to add is that Mr. Tkachuk would have profited very significantly had his arrangement with the nephew gone undiscovered. He would have secured a guaranteed price, while procuring the commercial advantages of having his cattle lease fulfilled using equipment the nephew could not otherwise have afforded to purchase. 4) In an area such as this where bona fides are of fundamental importance, and particularly where an owner has the advantage of a guaranteed price from the auctioneer, a deliberate non-disclosure of material information can have an impact every bit as significant as a deliberate and obvious misrepresentation. The plaintiff should have disclosed the arrangement with Mr. Caruk to the defendants. In not doing so, and in allowing and enabling Mr. Caruk to bid at the auction, the plaintiff breached clause 3.07. 5) The provision for a 14% commission on the gross proceeds of sale as a consequence of breach of a fundamental term of the contract is not extravagant or unconscionable and, as the defendants pointed out, they did not elect to exercise their conjunctive right in clause 4.05 to additional amounts as liquidated damages. The concluding paragraph would have entitled them, in addition to all other rights and remedies, to re-sell the property acquired by Mr. Caruk and to retain an amount equal to 20% of the proceeds realized. The provision for a 14% commission on the gross proceeds of sale does not constitute a penalty. 6) The defendants' claim solicitor and client costs pursuant to clause 4.03 of the contract. The defendants are prima facie entitled to costs on a solicitor and client basis, but in the circumstances there are issues whether they should be restricted to one set of costs, and other issues relating to appropriate quantum. The issue of costs will be assessed by this Court pursuant to Rule 565, with the defendants serving and filing a draft bill in the form required for a solicitor and client bill, an affidavit of disbursements, and written argument. The plaintiff shall have 14 days to reply. 7) The plaintiff will have a judgment against the defendants in the amount of $1,316.64 representing the power washing bill wrongfully deducted from the auction sale proceeds payable to the plaintiff. In all other respects, the plaintiff's action is dismissed with costs.

2006skqb536.txt

J. Q.B.G. A.D. 1996 No. 2272 J.C. R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: JASON SPRINGER and SASKATCHEWAN GOVERNMENT INSURANCE DEFENDANT Margot A. Dynna for the plaintiff Joan M. Eremko for the defendant JUDGMENT MALONE J. July 6, 1998 On February 22, 1996, the plaintiff's residence, mobile home located on his grandparents' farm site in the Rocanville district was totally destroyed by fire. The mobilehome, and its contents, were insured with the defendant whohas denied liability on the policy alleging that the plaintiffdeliberately started the fire, or caused it to be started. The plaintiff testified that he was awakened shortly before 6:00 a.m. by buzzing noise from the smoke detector. He found the mobile home already to be in flames and rushed to his grandparents' house to have them call the fire department. He testified that when he returned to the mobile home, his brother, who also lives on the farm site, was present and they both attempted to gain access to the home but were prevented from doing so by the heat of the fire and heavy smoke. Constable Bell of the Moosomin detachment of the R.C.M.P. attended at the fire scene and took an initial statement from the plaintiff on that day. In that statement the plaintiff stated the following: Smoke detector buzzed few times and it woke me up. My bedroom is at the west end of the trailer. had to come down the hallway to escape. The fire was either in the living room or kitchen on the north side of the trailer. Once got out went over to grama [sic] and grandpa's and they called the fire department. raced back to the trailer to try and get somethings [sic] out of the trailer. We tried to get somethings [sic] out but we couldn't get near it. When walked down the hallway looked into the living room and kitchen the fire looked as if it the couch and chair were engulfed and was up the wall and across the ceiling and down the hall. When returned from my grandma's the fire was coming out of the window where the couch sits. On April 4, 1996, Constable Bell took warned statement from the accused wherein the following passage is contained: Q.Okay Jason in your own words, uh, could you just explain to me the morning of the fire. Uh the way that you explained in statement that you provided me earlier. A.Right from when woke up or what? Q.From when you, right from when you noticed the fire A.The smoke detector went off, which woke me Q.Okay A.And got out of bed, put my clothes on that wore the night before, always leave them laying by the bed. Put them on, got dressed quickly, got up to the exit going out of the hallway that goes into the living room or into the porch, and then went into the porch, got my boots on and ripped over to my grandma and grandpa's and called the fire department. came back from grandma and grandpa's and my (inaudible) grandparents and he came over right away too and we tried to get some of the stuff out of the trailer but there was so much smoke and stuff blowing out that we couldn't get nothing out and when was going out the hallway the fire was in the living room or kitchen or wherever and it was starting to come into the hallway, not on the sides or bottom but it was at the top. Q.Okay, on the ceiling A.On the ceiling yeah Q.Okay. Alright A.And then the fire department come Q.Okay, um, you say the fire was coming down the hallway? A.It was starting to come over Q.Okay, how far between the door that you enter out of and where the fire was? A.It was right above that door. Q.It was right above the door that you went out. A.Well, between that door, like the door is here and there is about feet before you walk into the wide open area. Q.Okay. A.So it was shade into the hallway. Q.Okay. A.So it was shade into the hallway. Q.Okay A.But it was in the hallway and between the door and right along the living room or something. Q.When you got back there did you get in could you see in their or did you get in there. A.No, cause um, by the time we got back the smoke was rolling so heavily over top of the trailer and was going directly from that roof right across and we tried to go up to the window but by the time we got the window broke you couldn't even breath Q.Okay A.The smoke was Q.So you broke the window to get into the office part? A.Yeah, we could never hold our breath that long for the smoke to get it Throughout the investigation and during his testimony, the plaintiff gave substantially this version of what he saw after being awakened by the smoke detector and his actions thereafter. The onus the defendant must meet to be successful in its defence of this action was set out by Maher J. in the case of Grover Holdings Ltd. v. Saskatchewan Government Insurance (1982), 1982 CanLII 2630 (SK QB), 18 Sask. R. 373. After reviewing the various authorities, Maher J. stated the following at p. 381: It is clear from these authorities that in an action where arson is raised as defence, once the assured establishes that loss by fire has occurred, the onus or burden of proof is then upon the insurer to establish, by balance of probabilities commensurate with the occasion, that the fire was caused by the deliberate act of the assured or at his behest. The more unlikely or improbable the allegation required to be proved, the more cogent is the evidence required to overcome the unlikelihood or improbability. But there is no obligation on an insured in the first instance to explain the cause of the fire. In this regard counsel for the defendant called several witnesses including two employees of the defendant's investigation unit. found their evidence to be suspect and their testimony has played no part in this decision. The evidence of three independent witnesses, however, find to be credible and persuasive. The first of these was Constable Bell who testified he had been voluntary fire fighter in the Northwest Territories for several years and had received certification as fire fighter. He stated that he was suspicious of the version of events given to him by the plaintiff because he showed no visible signs of having been involved in fire and did not smell of smoke. The second witness was Dr. Wo Yuen, senior research scientist with the Saskatchewan Research Counsel. He conducted tests on samples taken from the debris of the burned out home and found them to contain small quantity of petroleum hydrocarbons. He testified that in his opinion the hydrocarbons were likely gasoline. Finally Mr. Peter L. Heyerhoff, an experienced fire investigator from Oakville, Ontario, concluded on the basis of Dr. Yuen's findings and the plaintiff's own version of events that the fire was deliberately set. He testified that in his opinion significant quantity of "fire accelerant" had been used. In his written report he stated the following: In my opinion, if Springer had encountered the circumstances he described would have expected the following: he should have been suffering to some degree from carbon monoxide poisoning; he should have been coughing for some time; his hair should have been singed; he should have had soot on his face, at least around the nostrils and mouth; his clothes should have smelled of smoke. The entire scenario described by Springer is incredible and springs from mind which cannot have been in real fire situation. Any fire which develops within compartment such as this trailer, whether in the smouldering or free burning stage, will develop considerable volumes of smoke. Smoke will rise with the hot gases and migrate along the ceiling and will fill voids at the highest levels very rapidly. When the hot gases and smoke encounter obstructions (walls, door headers) they will build down. The hot gases will be transported by convection and radiation. As read the material, Springer showed no signs of the effects of heat, such as thermal burns on his skin or his hair having been singed. The plaintiff did not call evidence to rebut Mr. Heyerhoff's opinion nor was the plaintiff's brother called to confirm the plaintiff's testimony that he attempted to re- enter the mobile home after arranging for the fire department to be called. When I consider the evidence of the threeindependent witnesses I have referred to I am satisfied thedefendant has met the onus referred to in the Grover Holdingcase and has established that the fire was deliberately set. While there is no direct evidence to establish that theplaintiff set the fire himself, in the circumstances, I drawthe inference that he did or, in the alternative, causedsomeone else to do so. The plaintiff\'s claim is therefore dismissed. Counsel have leave to speak to the matter of costs at their convenience.

The plaintiff's residence, a mobile home, was totally destroyed by fire in 1996. The insure denied liability on the policy alleging the plaintiff deliberately started the fire or caused it to be started. HELD: The plaintiff's claim was dismissed. 1)When the evidence of the three independant witnesses was considered, the defendant insurer met the onus referred to Grover Holdings and established that the fire was deliberately set. While there was no direct evidence to establish the plaintiff set the fire himself, the inference was drawn that he did or, in the alternative, caused someone else to do so. 2)Had the plaintiff been in the mobile home he should have been suffering to some degree from carbon monoxide poisoning, he should have been coughing, his hair should have been singed, he would have had soot on his face and his clothes would have smelled of smoke. 3)The plaintiff did not call evidence to rebut the fire investigator's opinion that a significant quantity of fire accelerant had been used nor was his brother called to confirm his testimony that he attempted to re-enter the mobile home after arranging for the fire department to be called.

1998canlii13992.txt

nan SUPREME COURT OF NOVA SCOTIA Citation: v. C.R.H., 2012 NSSC 101 Date: 20120308 Docket: CRH 346803 Registry: Halifax Between: Her Majesty The Queen Provincial Crown Accused Editorial Notice Identifying information has been removed from this electronic version of the judgment. Restriction on publication: Section 486.4 of the Criminal Code Judge: The Honourable Justice Peter P. Rosinski Heard: February 21, 22, 23, 27, 28, 29, 2012, in Halifax, Nova Scotia Counsel: Eric Taylor, for the Provincial Crown Accused, Self-Represented, By the Court: Introduction [1] This decision will address whether the Crown has proved beyond a reasonable doubt that Mr. H. is guilty of sexual offences involving SG. Mr. H. [DOB January 4, 1968] is charged with four counts as follows:1. That he between the 16 day of October 1999 and the first day of April 2009 at or near Dartmouth... did unlawfully commit a sexual assault on SG contrary to s. 271(1)(a) of the Criminal Code;2. that he between 16 day of October 1999 and the first day of May 2008, did for a sexual purpose touch SG, a person under the age of 14 years, with a part of his body - the tongue and hands... contrary to s. 151 of the Criminal Code;3. that he between 16 day of October 1999 and the first day of May 2008, did for a sexual purpose, invite SG, a person under the age of 14 years, to touch directly a part of his body - the penis of C. R. H., contrary to s. 152 of the Criminal Code;4. that he between the first day of May 2008, and the first day of April 2009, did for a sexual purpose touch SG, a person under the age of 16 years with the part of his body - the hands... contrary to s. 151 of the Criminal Code. [2] At his trial heard from the following Crown witnesses: 1. K. C. DOB February *, 1993 classmate (and boyfriend of SG for approximately years i.e. 2006 2009); 2. N. S. DOB May *, 1994 classmate and very close friend of SG she returns to N. for the summers with her parents; 3. J. L. DOB August *, 1994 classmate and very close friend of SG; 4. J. R. [previously D.] DOB August *, 1969 guidance counsellor at School in Dartmouth since 2004; 5. M. G. DOB May *, 1967 mother of SG; 6. S.G. DOB October *, 1993; 7. Detective Constable Sandra McNaughton DOB May 15, 1970 RCMP Officer who was the lead investigator regarding these allegations; and for the defence: 8. A. G. DOB June 15, 1992 biological daughter of the accused, C. H.. [3] In this case it is important to outline the family relationships as number of individuals were referred to in testimony. [4] At all material times hereto, Mr. H. has been in common-law relationship with D. G., with whom he has two children: A. DOB June *, 1992; and K. [born approximately 1996]; while he was stepfather to D. G.’s son, M. C. C. [born approximately 1982]. [5] D. G. is D. G.’s brother, and they are some of the children of B. and C. G.. [6] The biological father of SG, according to her mother, is C.C., who has had no contact with her since she was two months old. D. G. in all respects acted as the father of SG from very shortly thereafter. SG only became aware in May 2009 that he was not in fact her biological father. [7] D. G. and M. G. had son together, J, DOB March *, 1996. [8] At no times relevant to these allegations did D. G. and M. G. live at the same residence. Both SG and J. continuously lived with M. G. at all times relevant hereto. [9] Nevertheless, D. G. was considered to be the father of both SG and J. by all concerned. will refer to him as such, since he has continuously acted in this role throughout the children’s lives to date. [10] Between approximately 1998 and 2009, SG and J. regularly visited their father on weekends, and during the summers. Their mother was insistent that they maintain this regular access with their father, who throughout all relevant time periods herein lived in Dartmouth, Nova Scotia. [11] am satisfied that from approximately 2003/2004, D. G. lived with his sister D. and her family, including the accused, C. H.. Consequently when SG and J. visited their father, they necessarily visited the residence of C. H.. All the allegations herein, save one incident are to have taken place at Mr. H.’s residence(s). [12] Throughout that time period, both children considered Mr. H. an uncle, by marriage [in fact, if not legally married] to D. G., their father’s sister. [13] In late April and early May 2009, SG disclosed her allegations to her close friends, K. C., N. S., J. L., and the school guidance counsellor, J. R., who revealed the existence of the allegations to SG’s mother, after which the police were notified. [14] Most of the witnesses who testified were questioned about where SG was living at the time of the alleged incidents, in comparison to where her father and Mr. H. were living. While all the parties were living in Dartmouth, Nova Scotia at all material times, each household, (i.e. that of M. G. and Mr. H./D. G.), moved number of times during the period of 1999 2009. As result, there is some confusion between the evidence of the witnesses about where each household lived for what period of time, which has implications for where and when the alleged incidents are to have taken place. [15] Of the witnesses that testified, SG and her mother, and A. G. were the only ones in position to say where the households might have lived and for what time periods between 1999 and 2009. keep in mind that SG was born in October 1993 and A. was born in June 1992. Thus they would have been between and 16 years, and and 17 years old respectively. Given their young ages during some of these time periods, and the frequencies of their relocations within Dartmouth, some confusion may be expected. [16] M. G. in her evidence suggested that: 1. She lived at Road around the time that SG was born and that she moved to Road in about 1999, and then to Road in approximately 2003 A. G.’s evidence may be taken to have suggested that C. G. lived with them at Street, [I conclude that she was not credible about that since SG’s mother seemed to have more precise recollection of why D. moved to Street when he did, i.e. because he shared an apartment with his dad, C. G. at Road and when his dad died he moved in with Mr. H.’s family at Street and it would seem unusual to me that D. would allow the father that molested her, to reside in home with her young daughter present]; 3. that thereafter, D. G. moved to Street, to share residence with his sister D. and Mr. H. [which from the evidence, estimate to be between late 2003 and early 2004]; 4. she has known Mr. H. for approximately 18 years through D. G. [which from the evidence, estimate to be since approximately 1994], however she did not know where Mr. H. was living at the time she was living with her children on Road. [I conclude that Mr. H. was not proved to be living with D. G. or in the Road area before D. moved in with him at Street in 2003 2004. note that A. G. in her evidence suggested that she attended primary school at school which is much closer to [the other schools she attended i.e. Elementary and School than to the Road area]; 5. from Road she and her children moved to Street, which is the upstairs apartment to the residence in which D. G. and C. H.’s family lived downstairs being Street [she estimated that it may have been couple of years before they moved there after D. did which from the evidence estimate is approximately 2004 2005. SG in her testimony indicated that she went to School, which is in the vicinity of Road, until grade four when she would have been 10 in June 2004 she testified that she attended school for grades five and six at which time she would have been between 10 and 12 years of age which suggests it was likely in 2004 that they moved to Street which is close to the school note that M. G. testified, when asked about what schools SG was in and where they lived at the time, that sometime between grades five and six, they moved from Road to Street this suggests it was between 2005 and 2006 that they moved to Street conclude that most likely SG and her family moved to Street at the end of her grade year, which would be around the time she was still 10 years old in summer 2004]; 6. She did not say how long she believed they stayed at that address, but it is clear that they did move to Street thereafter, and that that was after D. and C. H.’s family had moved to Street [a large white house] again SG testified that sometime around grade 7, she moved to Street, and that D. G. and C. H.’s family had moved to Street before them this suggests that SG moved to Street approximately in 2007, and that Mr. H. had moved to Street sometime between the summer of 2004 and 2006 A. G. was not able to recall when they moved to Street [I conclude that Mr. H. moved to Street sometime in 2006]; 7. at the end of 2009 they moved to *, Halifax, although SG continued to attend grades 10 to 12 at the School [SG agreed with this in her testimony moreover she testified that D. G. and C. H.’s family had moved from Street to Crescent before SG and her family moved to *, Halifax A. G. was not able to recall when they moved to Crescent, however she did say when she started dating her boyfriend in March 2009, she was living at therefore it would seem from the evidence that sometime between their move to Street in 2006 and April 2009, Mr. H. had moved to Crescent moreover, the evidence also suggests that at the time of the disclosure in April 2009, Mr. H. was living at Crescent note that Crescent is in the immediate vicinity of Court and Drive which is not far distance from School this is significant because SG described “the most recent incident” happened in and referenced *, although she did not know the specific name of the street, it was “by C.” A. confirmed in her testimony that these landmarks are consistent with Crescent and that it was also very close to dealership]. [17] This summary of that evidence contains my view of the facts that have accepted regarding where when SG and her family, and Mr. H. and his family were living in Dartmouth at the material times. Crown Position [18] In relation to the four counts on the Indictment, the Crown’s position as to which allegations relate to each are as follows [bearing in mind SG was born October *, 1993]: Count #1 s. 271 Criminal Code October 16, 1999 to April 1, 2009 sexual assaults i) the most recent incident happened at Crescent, where couple of months before the late April 2009 disclosure by SG, when she was 15 years old, Mr. H. intentionally “grabbed’ or “squeezed” her breast while she was holding garbage bag in the kitchen area; ii) at the house in the area of Street and area Crescent] Mr. H. while in the process of tickling SG in A.’s room, put his hand part way down the front of her pants near to her vagina [SG testified that she was attending School [grade to 9] at this time [Fall 2006 June 2009] and she was already dating K. so it would have been between grade and grade when she was 13 to 15 years old (Fall 2007 to the end of 2008]. iii) at Street she was sitting alone at night playing computer card game wearing baggy shirt with no bra, when Mr. H. came up behind her and put his hand inside her shirt and was rubbing her breast, skin to skin [D. G. lived at Street [with Mr. H.] between late 2003 and 2006, thus this most likely happened when SG was between 10 and 12 years old]; iv) at Street the “pool incident” SG was on her way to the pool in the summer, when Mr. H. intercepted her, and scooped her up taking her into K.’s room, where he placed her on some form of table, pushed aside her one piece bathing suit and licked her vagina to times [she estimated she was in grade or 6, thus it would have happened in the summer of 2005 or 2006 when SG was 11 to 12 years old]; v) at Street the “couch incident” SG testified she was asleep on the couch and awoke to the feel of being touched between her legs, with Mr. H. on his knees right in front of her [she was unable to precisely identify when this happened, but the other evidence suggests that it was between 2004 and 2006, when SG was between 10 and 12 years old]; vi) the first incident she remembers “the bathroom incident” SG testified that she was “tiny” and estimated she was either in School [which she attended to the end of grade in June 2004 and she would have been 10 years old] or school where she attended grades and 6, at the time Mr. H. took her into the bathroom, sat himself on the toilet seat and put her across his knees at which point he had removed her clothing and then licked her vagina [from the other evidence available it is possible that this took place either at Drive (since School is close by, and D. G. only moved to Street sometime between late 2003 and early 2004 after his father died), or Street]; Count #2 s. 151 Criminal Code October 16, 1999 to May 1, 2008 sexual touching of SG by Mr. H. with his tongue and hands: i) this allegation refers to the sexual assault allegations of Count #1 that happened before SG’s 14 birthday on October 2007. Count #4 s. 151 Criminal Code May 1, 2008 April 1, 2009 sexual touching of SG by Mr. H. with his hands: i) this allegation refers to the sexual assault allegations of Count #1 that happened after SG’s 14 birthday on October *, 2007. Count #3 s. 152 Criminal Code October 16, 1999 May 1, 2008 invitation to sexual touching made by Mr. H. to SG: i) at Street SG was playing computer games in K.’s room when Mr. H. came in and offered her $20 “if would do something to him or let him do something to me... knew in my head what he wanted was nothing appropriate... to touch my breasts or something” [this incident having happened at Street therefore likely occurred between 2004, and sometime between the latter part of 2004 and 2006 when it appears D. G. and Mr. H.’s family moved to Street most likely it was between 2005 and 2006 when SG was between 11 and 13 years old]; ii) the the dog” incident SG had walked from Street to Street with her dog, and gone upstairs into A.’s room looking for her. Mr. H. followed her up the stairs. While no one else appeared to be in the home, and while SG was inside that room, he stood at the entryway of the room, dropped his pants to his ankles exposing his penis to her and stated “If you don’t take your pants off, will”; and told her repeatedly to “just touch it”, which by words and actions she refused [given the other evidence herein, this incident would likely have taken place between the time when SG was in grade (September 2006 June 2007) and before Mr. H. moved to (likely after 2006 and before 2009) during this time SG would have been between 12 and 13 years old]. [19] The evidence the Crown tendered also included incidents that it says reflected Mr. H.’s “ongoing sexual interest” in SG, for example: i) as SG testified, “at random times”, mostly at Street but also in other locations thereafter [likely Street and Crescent], Mr. H. would “flash” or expose to SG alone his soft penis and laugh SG estimated this happened at least five times to her memory; ii) when SG lived upstairs from Mr. H. at Street, one night when she thought no adults happened to be home, Mr. H. came to her upstairs apartment wearing his bathrobe, boxers and no shirt where he found SG on the couch. He talked to her for couple of minutes on the couch and the next thing that happened SG testified “I am on my back trying to push him off me... he was grabbing onto my wrists... was using my legs trying to push him off of me”, at which point the telephone rang and Mr. H. allowed her to answer it, after which he went downstairs; iii) at Mr. H.’s Street residence, C. C. found web camera in the area of the toilet in the bathroom he alerted others and D. G. and SG also saw it. Moreover, D. G. and J. G. were downstairs and found monitor in an area which Mr. H. used as workshop which was streaming live feed from the web camera in the bathroom, such that they could see persons in the bathroom. Very shortly thereafter Mr. H. became aware of it, and he went into the bathroom it was never seen again. [At this point, wish to emphasize will not take this evidence into account in any way because there is no direct evidence that Mr. H. had anything to do with the placing of the camera in the bathroom, moreover any probative value of this evidence is greatly outweighed by the prejudice to Mr. H.’s fair trial rights]; iv) at Street, SG was taking shower in the bathroom when unexpectedly Mr. H. walked into the bathroom claiming to be looking for bar of soap. While she was in the shower, SG stated the shower curtain rod was dislodged [“I did not pull it... I’m not going to say he tugged on the shower curtain”] such that while he was there, it fell and she had to wrap herself in the shower curtain in order not to be seen naked by Mr. H.. Defence Position [20] Mr. H.’s position herein is an outright denial of any of the allegations made by SG. He suggests that SG made up generalized allegation in April 2009 against him in order to cause her boyfriend K., to not continue with his intention to break up with her. However, once she had made generalized allegation to him, it became necessary for her to maintain the lie and also tell her other friends as well, and ultimately the guidance counsellor, J. R., her mother and then the police. When pressed for details, she was forced to give the generalized allegation greater specificity. [21] Mr. H. also argues that moreover, her evidence is not credible since: i) She is inconsistent as between her testimony in court and her prior preliminary inquiry transcript and police statement; ii) her behaviour is not rational when one considers that not only did she not immediately scream out when she was touched by Mr. H., or report any of the incidents to other persons shortly thereafter, but that she kept going back to visit her father who lived with Mr. H. even after these incidents, and repeatedly put herself at risk by allowing herself to be alone with Mr. H.; iii) she delayed her disclosure for so long, which is not rational or believable since she had numerous persons whom she could have confided in and disclosed to, which could have thereby ended the alleged incidents once and for all. [22] Mr. H. also points out that her evidence is contradicted in important respects by that of A. G.: for example, that in household full of people all the time, there was virtually no opportunity for Mr. H. to commit such offences without someone having noticed something was wrong and taken further action. [23] Mr. H. says there is no evidence beyond reasonable doubt that he committed any of these offences. The Relevant Law [24] The relevant sections of the Criminal Code of Canada between 1999 and 2009 are the offence sections, sections 151, 152 265 and 271. Some of these sections changed over time. The relevant portions of sections 265, 271 and 273.1 did not change. [25] Section 150.1(1) and (2) from May 1, 1989 to April 30, 2008 precluded complainant under the age of 14 years from consenting to offences against them under sections 151, 152 or 271 in case such as this. Similarly, from May 1, 2008 onward, those subsections precluded complainant under the age of 16 years from consenting to offences against them under sections 151, 152 or 271 in case such as this. [26] Similarly, from May 1, 1989 to April 2008, section 151 made it an offence for any person “who, for sexual purpose, touches, directly or indirectly, with part of the body or with an object, any part of the body of person under the age of 14 years...”. [27] From May 1, 2008 onward, the wording is identical except that it is an offence in relation to “a person under the age of 16 years...”. [28] Similarly from May 1, 1989 to April 30, 2008, section 152 made it an offence for any person “who, for sexual purpose, invites, counsels or incites person under the age of 14 years to touch, directly or indirectly, with part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites the body of the person under the age of 14 years...”. [29] From May 2001 onward, the wording is identical except that is an offence in relation to “a person under the age of 16 years...”. [30] The essential elements of sexual assault were comprehensively addressed by the Supreme Court of Canada in v. Ewanchuk 1999 CanLII 711 (SCC), [1999] SCR 330. In summary, to ground conviction the Crown must prove beyond reasonable doubt that the accused: i) Touched the victim; ii) in manner such that he has violated the sexual integrity of the victim [all the circumstances surrounding the relevant conduct must be examined in an objective fashion to determine whether the conduct was of sexual nature and violated the victim’s sexual integrity]; iii) in the absence of consent to do so from the complainant [the absence of consent is subjective. It is determined by reference to the victim’s internal state of mind towards the touching when the touching takes place]; and that iv) the accused intended to touch the victim, and v) that the accused had knowledge of, or was reckless, or willfully blind regarding the victim’s lack of consent. [31] To ground conviction under s. 151 of the Criminal Code, the Crown must prove beyond reasonable doubt the following essential elements of the offence: i) That the accused intentionally touched the victim [being less than 14 years old or less than 16 years old depending on the time period in question]; ii) intending sexual interaction of any kind with the victim, and with that intent makes contact with the victim’s body [“for sexual purpose”]. [32] To ground conviction under s. 152 of the Criminal Code, the Crown must prove beyond reasonable doubt the following essential elements of the offence: i) That the accused, for sexual purpose, communicated with victim [being less than 14 years old or less than 16 years old, depending on the time period in question], in manner constituting an invitation, incitement or counseling of conduct in which that the victim would touch any person, including the accused or the child him or herself; and ii) that the accused intended the victim receive the communication as an invitation, incitement or counseling to do the physical conduct, or by present state of mind that an accused knew the substantial and unjustified risk that the victim would receive the communication as an invitation, incitement or counseling to do the physical conduct, coupled with knowing the communication was for sexual purpose. Assessment of the Evidence [33] very carefully followed the evidence of each witness, and watched the manner of giving their evidence [eg. Whether they gave it after due consideration, or volunteered answers before questions were finished; their gestures; their seriousness/recognition of the serious nature of the proceedings; their composure and reaction, particularly under cross examination; and the confidence with which they appeared to give their answers]. This list is of course not exhaustive. [34] As to the assessment of the credibility of witnesses, while it is by no means an exhaustive list, find useful the aspects cited, by Provincial Court Judge Clyde F. Macdonald in R. v. DLC [2001] NSJ No. 554 at para. 8, where he said, in part: And certainly keep in mind in this case, as well, that the task of finding the facts...involves the weighing of the evidence but it is certainly not an exercise in preferring one witness’ evidence over that of another. And of course, that's because the doctrine of reasonable doubt applies to the issue of credibility ... I'm going to indicate some aspects of witnesses testimony that find helpful and this determination is as follows. They are in no particular order: 1. The attitude and demeanor of the witness. ask whether the witness is evasive, belligerent, or inappropriate in response to questions and keep in mind the existence of prior inconsistent statements or previous occasions where the witness wasn't truthful. Those are useful to me. 2. consider the external consistency of the evidence. And by that mean, is the testimony of the witness consistent with independent witnesses which is accepted by me, the trier of fact; and 3. consider the internal consistency of the testimony. By that mean, does the witness’ testimony or evidence change while on the stand. 4. concern myself with whether the witness has motive to lie or mislead the Court. consider the ability of the witness to originally observe the event, to record it in memory and recall the event; and 5. Of course, the passage of time since the event in question is factor in this regard. This is one factor in lot of cases, and in this case, find is most important. 6. concern myself with sense of the evidence. Does common sense, when applied to the testimony of the witness, suggest the evidence is impossible, improbable or unlikely? And what other results are there when apply my common sense to the evidence? [35] As this list suggests, witness' credibility is mixture of their reliability (are they now accurately recalling matters they had proper opportunity to observe and commit to memory in the past?) and impartiality or honesty (are they disinterested in the outcome of the case and do not favour any party over another?) [36] Generally, also keep in mind that SG and A. G. were born on October *, 1993 and June *, 1992 respectively. They would have been between 10 to 15 and 11 to 16 years old respectively during the most relevant time periods herein. SG disclosed these allegations when she was 15.5 years old. A. G. was almost 17 years old, and would have become aware of those allegations very shortly thereafter. Until that point in time, both of them had been “like sisters”, since SG and her brother J. spent pretty well every weekend and their summers visiting their father who lived at the same location as C. H. and his daughter A. G. between approximately 2004 and May 2009. [37] When they testified SG was 18 years old whereas A. was 19.5 years old. Nominally they were children when these offences allegedly occurred, and they testified while they were adults. [38] Before examining their evidence in more detail, it is important to recall that the courts have set out certain guidelines to assist judges and juries in assessing the credibility of witnesses such as SG and A. in cases such as this. [39] In number of decisions in the early 1990's, courts came to realize that they must approach the evidence of children not from the perspective of rigid stereotypes, but rather on “common sense” basis, taking into account the strengths and weaknesses which characterized the evidence offered in any particular case see for example v. RW 1992 CanLII 56 (SCC), [1992] SCR 122 paras. 23 26 per McLachlin, J. (as she then was) for the court. [40] Previously the unsworn evidence of child could not found conviction unless it was confirmed or corroborated by independent evidence. Once courts acknowledged that children experience the world differently from adults, it was hardly surprising that the details important to adults, like time and place, may be missing from the recollection of children. [41] Assessing the credibility of an adult witness describing offences alleged during their childhood was also contentious. In that respect, McLachlin, J. in v. R.W. noted at para. 26: It is neither desirable nor possible to state hard and fast rules as to when witness's evidence should be assessed by reference to "adult" or "child" standards ‑‑ to do so would be to create anew stereotypes potentially as rigid and unjust as those which the recent developments in the law's approach to children's evidence have been designed to dispel. Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. But would add this. In general, where an adult is testifying as to events which occurred when she was child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying. [42] also keep in mind the comments of the Ontario Court of Appeal, per Blair, JA (Cronk, JA concurring) in v. HPS 2012 ONCA 117 (CanLII) that simply being satisfied about the sincerity, and believability of the witness, may not be sufficient to conclude that they are credible, because one must be satisfied about their reliability as well. [43] In that respect, Blair, JA stated at paras. 35 and 37 38: Memory is fallible. Courts have long recognized that even an apparently convincing, confident and credible witness may not be accurate or reliable and that it is risky to place too much emphasis on demeanour alone where there are contradictions and inconsistencies in the evidence: see R. v. McGrath, [2000] O.J. No. 5735 (S.C.), at paras. 10‑14; R. v. Stewart (1994), 1994 CanLII 7208 (ON CA), 18 O.R. (3d) 509, at pp. 515‑18; R. v. Norman (1993), 1993 CanLII 3387 (ON CA), 16 O.R. (3d) 295, at pp. 311‑15. As Finlayson J.A. noted in Stewart, at pp. 516‑17: It is evident from his reasons that the trial judge was impressed with the demeanour of the complainant in the witness box and the fact that she was not shaken in cross‑examination. am not satisfied, however, that positive finding of credibility on the part of the complainant is sufficient to support conviction in case of this nature where there is significant evidence which contradicts the complainant's allegations. We all know from our personal experiences as trial lawyers and judges that honest witnesses, whether they are adults or children, may convince themselves that inaccurate versions of given event are correct and they can be very persuasive. The issue, however, is not the sincerity of the witness but the reliability of the witness's testimony. Demeanour alone should not suffice to found conviction where there are significant inconsistencies and conflicting evidence on the record: see R. v. Norman for discussion on this subject. [Citations omitted, emphasis added.] ... The allegations in this case relate to events that occurred many years before the trial, when the complainant was little girl and teenager. She was 36 when she testified. In such cases cases evolving out of allegations of distant events, including allegations involving historical acts of physical and sexual abuse particular caution and scrutiny are called for in approaching the reliability of evidence. Rosenberg J.A. highlighted the need to be cautious about relying upon adult memories of childhood impressions in R. v. M.(B.) (1998), 1998 CanLII 13326 (ON CA), 42 O.R. (3d) (C.A.), at p. 29. Memories become increasingly frail over time. Evidence that might have existed had the matter been dealt with earlier may have disappeared. Or it may become contaminated. Life experiences can colour and distort the memory of what occurred. [44] In v. HPS, Justice Blair continued at paras. 39, 40, 41: 39 Minden J. discussed these cautionary considerations in McGrath, at paras. 11‑14: Much of the author's focus is on the need for particularly rigorous approach to issues of reliability given the frailties of memory of distant events: see: R. v. S.(W.) (1994), 1994 CanLII 7208 (ON CA), 90 C.C.C. (3d) 242 (Ont. C.A.). The trier of fact's experience and knowledge about human nature and memory may serve to betray rather than guide in cases of this kind: see also R. v. M.(B.) (1998), 1998 CanLII 13326 (ON CA), 130 C.C.C. (3d) 353 (Ont. C.A.). Accordingly, careful scrutiny must be paid to the evidence: see R. v. Norman (1993), 1993 CanLII 3387 (ON CA), 87 C.C.C. (3d) 153 (Ont. C.A.). In that regard, number of factors should be kept in mind. witness' difficulty in recollection due to the passage of time must not lead to an "undiscriminating acceptance" of his or her evidence. trier of fact must pay particular attention to serious inconsistencies in the account, as well as to significant inconsistencies between present testimony and prior accounts. Such inconsistencies may disclose unreliability: see, for example, R. v. G.G. (1997), 1997 CanLII 1976 (ON CA), 115 C.C.C. (3d) (Ont. C.A.). There must be rigorous analysis of whatever independent, extrinsic evidence still exists. trier of fact must be aware that an apparently honest, confident or convincing witness may not necessarily be an accurate witness: see R. v. Norman, supra. Nor does an abundance of detail in the recounting of an event necessarily imply an accurate memory. As well, trier must bear in mind the "subtle and not so subtle influences" that may have over time distorted memory. The influences upon the life of witness over the course of many years also make it difficult to fairly assess an apparent lack of motive to fabricate. In this context, the trier must be particularly vigilant to ensure that the burden of proof is not shifted to the accused. trier of fact must be alive to the fact that passage of time provides more opportunities for collusion or contamination between multiple complainants. This must be kept in mind when assessing the probative value of similar act evidence. 40 Following that review, Minden J. concluded, at para. 15: Finally, in the overall assessment of the evidence, there is special need to self‑instruct on the frailties of evidence concerning events from the distant past. Trials concerning distant events may call for direction to proceed cautiously before acting on unconfirmed evidence, even in case in which the particular circumstances do not otherwise mandate special warning. In the application of the reasonable doubt standard, trier of fact must be especially mindful of the absence of evidence that might have been available had the matter been prosecuted at an earlier date. 41 agree. The idea that trial judges should consider the "need to self‑instruct on the frailties of evidence concerning events from the distant past" is sensible one for all of the reasons summarized in McGrath. Each case will depend upon its own circumstances, and do not mean to suggest that some type of formal instruction need necessarily be given. Where, however as here, and in this type of case generally there are objective reasons to scrutinize carefully the reliability of witness whose testimony is central to the proof of guilt, the trial judge's reasons should demonstrate that he or she is alert to the frailties of, and the risks associated with, such evidence, and to the need to address it with that careful scrutiny. [45] Around that same time, the doctrine of recent complaint was also extinguished, [which only allowed evidence of sexual complaint to be admissible if made: 1. at the first reasonable opportunity; 2. without questions of the leading, inducing or intimidating character or suggesting the guilt of the accused, and 3. In relation only to the alleged offence and nothing else: v. Creemer and Cormier 1967 CanLII 711 (NS CA), [1968] CCC 14 (NSCA)]. [46] In contrast, the modern principles regarding behaviour of sexual offence victims have rejected stereotypical presumptions about how victims will react to such offences whether that be at the time of the offence itself [by for example resisting or screaming out, etc.] or thereafter, particularly as to when and under what circumstances they disclose the allegations. [47] In v. DD 2000 SCC 43 (CanLII), Justice Major for the Majority put the issue in that case as follows: This appeal raises the question of whether expert evidence may be admitted to inform the jury that children who have suffered sexual abuse respond in different ways with respect to disclosing the abuse. The expert here did not interview the child, so his evidence was not specific to this complainant, but was general explanation applicable to all children. [48] Justice Major continued on: In my view, the content of the expert evidence admitted in this case was not unique or scientifically puzzling, but was rather the proper subject for simple jury instruction. This being the case, its admission was not necessary. Distilling the probative elements of Dr. Marshall’s testimony from its superfluous and prejudicial elements, one bald statement of principle emerges. In diagnosing cases of child sexual abuse, the timing of the disclosure, standing alone, signifies nothing. Not all victims of child sexual abuse will disclose the abuse immediately. It depends upon the circumstances of the particular victim find surprising the suggestion that Canadian jury or judge alone would be incapable of understanding the simple fact. Paras. 58 59. [Emphasis added] [49] Furthermore, in relation to the discredited common law doctrine of recent complaint, he stated: Application of the mistake reflected in the early common law now constitutes reversible error. See v. RW 1992 CanLII 56 (SCC), [1992] SCR 122 per McLachlin, J. [as she then was] at page 136: Finally, the Court of Appeal relied on the fact that neither of the older children was "aware or concerned that anything untoward occurred which is really the best test of the quality of the acts." This reference reveals reliance on the stereotypical but suspect view that the victims of sexual aggression are likely to report the acts, stereotype which found expression in the now discounted doctrine of recent complaint. In fact, the literature suggests the converse may be true; victims of abuse often in fact do not disclose it, and if they do, it may not be until substantial length of time has passed. The significance of the complainant’s failure to make timely complaint must not be the subject of any presumptive adverse inference based upon now rejected stereotypical assumptions of how persons [particularly children] react to acts of sexual abuse [citations omitted]. Para. 63. [Emphasis added] [50] Notably he continued to expand on this theme and stated: trial judge should recognize and so instructed jury that there is no inviolable rule on how people who are the victims of trauma like sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or lack of understanding and knowledge. In assessing the credibility of complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of particular case. delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant. Para. 65. [Emphasis added] [51] Nevertheless, in v. RGB 2012 MBCA 17 (CanLII), that court reminded triers of fact that having rejected previous stereotypical presumptions about sexual offence victims, we must be careful not replace them with an unreasoned acceptance of new form of stereotypical presumptions [for example that one should expect non-disclosure from true victim and that that standing alone should therefore enhance their credibility see paras. [52] Ultimately the non-disclosure of sexual abuse offences should be neutral factor standing on its own, unless in the circumstances of any particular case it is prompted to relevance by other evidence e.g. See also the comments of O’Connor, ACJO in v. LCT 2012 ONCA 116 (CanLII) at para. 96. [53] In many cases involving young persons alleging sexual offences against person in authority or position of trust, there will be evidence available regarding certain behaviours of the young person that may be relevant to, when and where the allegations may have taken place, and consistent with the truthfulness of the allegations. [54] An example of this is found in v. JHS 2007 NSCA 12 (CanLII) where our Court of Appeal was faced with that issue among others. JHS was convicted by jury on charge of sexual assault. The victim was the stepdaughter of JHS. She had testified that JHS had sexually assaulted her over number of years until she was in her early teens. Her mother and sister also lived with JHS. There was no evidence before the jury of any improper behaviour between JHS and his stepdaughter. In the course of her evidence, the stepdaughter testified that her behaviour changed, that she was out of control, and that she started cutting herself. The mother testified that she discovered her daughter at age or 10 cutting herself and gave evidence as to her behavioural changes, including breaking into houses and rebelling at everything. JHS argued in his evidence that it was only later that the stepdaughter really got out of control and started to harm herself and that she only alleged sexual assault after she was told she would be sent to Catholic school. [55] Justices Oland and Fichaud overturned the conviction on the basis that the trial judge erred by failing to properly instruct the jury as to the test set out in v. DW (1991) 1991 CanLII 93 (SCC), 63 CCC (3d) 397 (SCC). Justice Saunders in dissent disagreed, but also went on to consider the other alleged errors argued by JHS. [56] At the appeal, JHS argued that the evidence of “bad behviour” of the victim introduced by the Crown at trial was inadmissible, or that the trial judge failed to give limiting instruction to the jury as to the use to be made of it. Justice Saunders did not find the evidence to be inadmissible or that the judge erred in not providing limiting instruction. He observed that JHS was particularly objecting to the evidence presented at trial of the complainant cutting herself. JHS argued that such evidence is “self-serving” and “offends the rule against oath helping”, and was highly prejudicial and ought to have been rejected for that reason as well. Lastly, JHS contended that limiting instruction was necessary once the evidence was admitted para. 39. [57] Justice Saunders rejected each of these submissions, but what is most significant is his drawing of distinction between evidence that is “oath helping”, and evidence that is “corroboration”. He pointed out: 41 There is difference between evidence that would be barred because it is introduced solely for the purpose of proving the truthfulness of the witness (oath‑helping) and evidence that is introduced to lend credence to the witness' statement (corroboration). See, for example, R. v. B.(F.F.), 1993 CanLII 167 (SCC), [1993] S.C.R. 697 at para. 70; R. v. B.(R.H.), 1994 CanLII 127 (SCC), [1994] S.C.R. 656 at para. 28. As noted in McWilliams, supra at 11:20.50.10: The prohibition against oath‑helping evidence is not absolute. The rule against oath‑helping prohibits the admission of evidence whose sole purpose is to bolster witness's general credibility; however, evidence about specific "feature of the witness's behaviour or testimony" may be admissible. (Citations omitted) 44 The prohibition against oath‑helping arises out of concern that the triers of fact must not subjugate their ultimate responsibility in deciding whether witnesses are providing reliable testimony, to the experience or opinions of experts, or lay persons, as to whether those witnesses are being truthful. In R. v. B.(F.F.), supra, Iacobucci, J. speaking for the majority on this point, referred to the rule against oath‑helping as follows: 70 ... The rule against oath‑helping prohibits party from presenting evidence solely for the purpose of bolstering witness' credibility before that witness' credibility is attacked. This type of evidence is of the sort that would tend to prove the truthfulness of the witness, rather than the truth of the witness' statements. It includes psychiatric evidence that the witness is likely to tell the truth in court (see, e.g., R. v. Kyselka (1962), 1962 CanLII 596 (ON CA), 133 C.C.C. 103 (Ont. C.A.)), evidence of good character called solely to illustrate that witness is likely telling the truth (see, e.g., R. v. Clarke (1981), 1981 ABCA 222 (CanLII), 63 C.C.C. (2d) 224 (Alta. C.A.)) and polygraph evidence (see, e.g., R. v. Béland, 1987 CanLII 27 (SCC), [1987] S.C.R. 398). ... 53 In summary, there is no exclusionary rule that would disallow evidence describing the bad behaviour or character of the complainant, similar to that barring disreputable character evidence against an accused. Because there is no rule excluding the complainant's own evidence about her conduct, the test for admissibility will depend on relevance, and weighing probative value against prejudicial effect. [58] On appeal, the Supreme Court of Canada restored the conviction, on the basis of the only issue argued before them that is whether the instruction to the jury regarding the v. DW was correct v. JHS 2008 SCC 30 (CanLII). [59] In the case at Bar, there was evidence that SG had marks on her neck around the time of her disclosure of these allegations, which could be seen to be consistent with self-inflicted cutting. The Crown did not request the Court to take note of these marks in its argument, and there were no questions asked of SG by the Crown or the Defence about them, other than to explain why SG may have been taken to the IWK Hospital. find that the evidence of marks on her neck is neutral evidence and has no probative value, as corroboration of SG’s allegations, or otherwise. [60] The sentiment in these cases serves as sober reminder that each case is unique, and requires its own unique calibration of the concerns evoked above regarding proper, reasoned and fair assessment of the evidence of children as well as adults describing events that allegedly occurred while they were children. [61] Along the spectrum of circumstances, regarding the age of the complainant at the time of the offence(s) in relation to the time of disclosure and trial, the tension between providing an accused with fair trial and the boundaries of the so-called “search for the truth” process can be taut. [62] In the case at Bar, there are elements of these concerns and will take them into account and calibrate them to the circumstances of this case. [63] In the case at Bar, also heard Crown evidence regarding its position that Mr. H. had an “ongoing sexual interest” in SG. This evidence came only from SG. [64] Since Mr. H. is self-represented, and not legally trained, it falls to the court to ensure that he has fair trial process. As general statement, the Crown is precluded from presenting evidence that suggests an accused is of “bad character”. Such evidence is viewed as having no probative value except possibly to show disposition or propensity on the part of the accused to commit crime in general, or specifically the same as the one alleged against the accused [in the nature of “similar act evidence”] see the comments of Fichaud, JA in v. CJ 2011 NSCA 77 (CanLII). [65] In the case at Bar, the Crown has argued that the evidence of Mr. H.’s “ongoing sexual interest” in SG relates to the same time period as covered by the four count Indictment; and is directly relevant to the charges against Mr. H., as that evidence is not tendered to show general propensity on his part to commit crimes (generally or specifically), but rather are relevant to show that throughout the period in question Mr. H. created sexualized environment in an effort to enable himself to establish sexual relationship with SG. [66] As general statement, accept that such evidence can be admissible, and in this case find it admissible as it is relevant; moreover its probative value is not outweighed by any prejudice occasioned by its admissibility to Mr. H.’s fair trial rights. Regarding the specific instances relied upon by the Crown in this case, find that in the circumstances of this case, the evidence of the web camera in the bathroom, and the evidence of the shower curtain rod collapsing after Mr. H. came into the bathroom unexpectedly while SG was showering, to be of slight probative value and significantly outweighed by any prejudice to his fair trial rights. Therefore, those incidents will not affect my assessment of the evidence regarding whether there is proof beyond reasonable doubt that Mr. H. committed the offences alleged. The Evidence of SG [67] The evidence of SG is determinative in this case. If conclude that believe her evidence regarding the allegations beyond reasonable doubt after considering all the evidence, Mr. H. must be found guilty. [68] Regarding the attitude and demeanor of SG, found she gave her evidence in manner which conclude demonstrates that she was: aware of the seriousness of the proceedings and responded accordingly; not belligerent or evasive in her answers, admitting when she could not remember details, and when she was faced with inconsistencies between her testimony and prior statements [police video taped statement or preliminary inquiry transcript] she accepted that she may have been inconsistent; however throughout her evidence she struck me as doing her best to be truthful and accurate. noted that she became upset and tearful on number of occasions, especially when questioning focussed on the actual incidents of sexual behaviour in issue. She at no point in her evidence, struck me as an individual who had “an axe to grind” or was attempting to portray Mr. H. in consistently bad light. [69] For example: i) When she was confronted at trial with her preliminary inquiry transcript evidence where appears: “Question at some point, think... does half-hour sound right?” She had responded: “May be bit longer.” [Page 168, lines 11], in relation to the incident of Mr. H. rubbing her breast at Street while she was playing cards on the computer she affirmed that that was her answer: “Yes”, without any attempt at elaboration; ii) regarding the flashing of Mr. H.’s penis, she was asked in cross-examination whether at trial was the first time she had mentioned such incidents, to which she responded: “Yes” [thereafter Defence counsel clarified that in her police videotaped statement at p. 14, lines 12 19 she had previously mentioned it before when she stated that he had done it “once”]; iii) she similarly readily accepted that she had never mentioned the “shower rod curtain incident” before her trial evidence; nor that she had mentioned the awakening on the couch to the feeling of being touched between her legs with Mr. H. kneeling in front of her. Notably however, she did give explanations as to why those incidents came to her mind between her testimony on one day and her testimony on the next day. She freely admitted that she had spoken to her friend N. generally, and when N. asked her whether she was comfortable with staying at her house, SG said that she was not, as she did not trust any older men, and she told N. about this incident for that reason. When asked whether by talking with her in this fashion she was violating the direction from the Court to not discuss her evidence, she was adamant that she did not think it was her “evidence” since she had not yet mentioned it on the stand [I accept her explanation as truthful]; iv) although during cross examination she accepted that in direct examination she could not remember what Mr. H. said to her when he had dropped his pants down to his ankles, when it was later put to her in cross-examination that she had said in her police statement, Mr. H. told her to “just touch it”; and in her preliminary inquiry transcript that she could not remember what Mr. H. said whereas in her testimony she stated that he said: “If you don’t take them off, will”; she responded in her cross examination that: “I now remember that”; v) she noted in her re-direct examination that she did not read the entire preliminary inquiry transcript or police statement in their entirety because “I know what happened”. She acknowledged that the Crown Attorney and police officer asked her to read them both, and that she told them she would. She pointed out that at the time of her police statement she “wasn’t comfortable” regarding having to disclose such embarrassing incidents to strangers. vi) SG was on the witness stand for lengthy time, and as with any witness, frustration creeps in on such situations. SG noted she was missing time from school because of her testifying, and no doubt felt it unfair that after having disclosed these allegations April 26, 2009; having provided videotaped police statement May 7, 2009; having testified at the preliminary inquiry in March 2011; she was now being subjected to extensive cross examination. keep in mind her age, and the nature of these allegations, and that they are made against someone who she considered to be an “uncle”, and that thereby the family has been fractured. In my view, although she at times was frustrated, and at times was unable to recall precisely, and at times was shown to be inconsistent as between her testimony, police statement and preliminary inquiry transcript, on the whole, her demeanor in the broad sense was consistent with a young person doing their best to be truthful and accurate in circumstances that are fairly described as intimidating, embarrassing, and which involve the examination of a complainant’s very personal information. [70] As to the external consistency of SG’s evidence, or the extent to which it is consistent with the evidence accepted by me of other witnesses, note: i) Her description of the places she went to school, the places she lived with her family, and her father lived with Mr. H.’s family are generally consistent with the evidence of other witnesses; ii) her description of the sequence of disclosure by her to her first boyfriend K., then to her guidance counsellor, Ms. R., as well as the circumstances of the disclosure are consistent as between herself and K. C. J. R.; iii) her reference to the pool was confirmed by A. G. who testified it was only in place for one summer and then only had fence around for the last month it was in place at Street; iv) her evidence regarding the sleeping arrangements was consistent with that of A. G. - both testified that SG slept with A. and in exceptional circumstances SG slept in her dad’s room at all material times when SG and her brother were staying overnight at their dad’s place / Mr. H.’s residence. A. G. testified that her mother had rule that noone was allowed to sleep on the couches. Consistent with this, SG testified she only once recalled sleeping on the couch at C. H.’s residence, and at that location she woke up to feeling of being touched with him kneeling before her; v) her evidence regarding the insistence of her mother that she and her brother spend weekends at their father’s residence, was also confirmed by the other witnesses who testified; vi) her evidence that she was rarely left in situation where she was completely alone with C. H., is consistent with the evidence of other witnesses that the household was generally always full of people coming and going; vii) her evidence of C. H. tickling her is consistent with A. G.’s evidence that “we were all tickled” viii) SG testified that when at C. H.’s residence visiting her father and staying overnight, if she took shower there, she would ask A. to come into the shower with her to keep her company. A. G., in her testimony, conceded that they spent time in the bathroom together while each of the other was showering. [71] Regarding the internal consistency of SG’s testimony that is whether the evidence changes while the witness is on the witness stand, note: i) earlier observed that in contrast to her police statement, preliminary inquiry transcript [she first made mention in direct examination of the webcam incident] and her initial direct examination at trial, after day of testimony, the next day when she testified SG had added incidents such as the “shower curtain rod incident”, and the waking while on the couch to the feeling of being touched between her legs incident; ii) during her testimony she did make adjustments to her testimony when confronted with her police statement and preliminary inquiry transcript review of her cross examination in particular however reveal no major inconsistencies across her evidence That is, no major inconsistencies exist between her testimony and her police statement/preliminary inquiry transcript. bear in mind that she did not read them in their entirety, only skimming them, as she claimed “I know what happened”, and that she did not view more than “a little part of” the videotaped statement, which videotaping she testified made her feel “uncomfortable”. [72] I conclude that her testimony was inconsistent with her previous statements only in minor degrees, whereas her testimony contained many and varied details that lend credence to its internal consistency overall: i) During the “P. the dog incident”, she noted that when she had her back against the wall, Mr. H.’s voice was “agitated like he was in hurry” and “trying to calm me down”. She stated that he gave her hug and told her nothing would happen anymore. In cross examination she indicated that A. and D. came back [about 10 minutes later] and they brought home; ii) during the struggle between her and Mr. H. at Street, while not directly relevant to proof of these charges, in her testimony SG gave details such as: when Mr. H. came to her upstairs apartment he was wearing robe with no belt, boxers on and no shirt; she was alone and near the big window from which you “could see car lights really well” and that she received call from her father who was calling from work; iii) she testified that after the disclosures she had to put one of her cats [“S.”] down, and that A. called her one night to say she was sorry about what had happened to the cat; iv) similarly while not directly relevant to proof of these charges, in her testimony SG gave details about the webcam incident. Moreover she claimed that C. C. found the camera, showed her father, and that her brother J. also saw the tv monitor, and that A. saw it as well, and she would expect her to remember it. [73] bear in mind the age of SG at the times these incidents occurred, and that because of her frequency in the households (as they changed over time) it would be difficult for her to recall in detail much about many of the incidents. In fact, in her direct evidence when asked about whether there were other incidents of sexual nature that she recalls, she responded: “I do not want to take guess at them in case that is not exactly what happened”... and “the ones described they happened I’m sure”. [74] On the whole I find her evidence to be internally consistent as to matters that relate to the core allegations in dispute. [75] As to whether SG has motive to lie or mislead the court, note the following: i) SG testified that she conducted herself throughout the time period of the allegations in way that would not give the appearance that anything was wrong; the evidence of other witnesses is consistent that this is the impression she gave, until her mother became alarmed when she turned approximately 13 to 14 years of age [approximately 2007] and became increasingly resistant in the middle of the week to going to visit her father during the weekends. As SG put it in cross examination: “What was going to say?”; and in re-direct: “I did not plan for any of this to come out”; in cross examination: “I did not want anyone to know what happened”; in relation to why she kept going back and did not tell any of D., A., her mother, and her close school friends: “I thought about telling D. but it is embarrassing and hard to say and talk about”; “I did not want people to think anything was wrong wanted to continue to see dad”; “I did not know if it would be [seen as] my fault for not saying it was going on for so long”; “[N. and J.] they’re my best friends did not want them to judge me or stop talking to me”; “[Mom and I] did not talk about stuff like that usually would talk to A. about that kind of stuff”; “[why finally talk to the police?] did not want to, but knew it was the right thing to do” [after the garbage incident couple of months earlier] “I had nightmares and it got too much to handle”; ii) the Defence position herein is that SG made up these allegations at the time K., her boyfriend was breaking up with her and she thought this was way that he would get back with her; thereafter the Defence suggests that she couldn’t go back on her initial lie and just kept lying up to and including the trial. The Defence argues that SG discussed this matter with N. between her appearances on the witness stand in direct examination, in an effort to fabricate further evidence against Mr. H.. Mr. H.’s daughter, A. G., testified that in her opinion, she felt SG was doing this because Mr. H.’s family had discussed moving to where SG’s father would have not have place to stay (and SG was aware of this), and therefore if SG made the allegations, SG’s father would likely come to live with her and her mother; iii) the Crown argued that there was no convincing evidence that SG had motive to lie. In fact when the Defence put to her that “you would do anything to keep him [K.]...” SG responded very adamantly: “Nothing like this... would not use this...”. When Defence put to her “You did not want all of this you told K. it just got out of control?” SG responded: “I knew this would happen... did not think it would take this long”. [76] After examining all the evidence, I conclude that SG had no motive to lie. She had no motive to lie initially, and therefore had no motive to lie during her trial testimony. Her testimony displayed no attempts to exaggerate, or any tendency to deliberately and purposefully cast Mr. H. in bad light. The reality is that the making of these allegations, and SG would have been aware of this, caused her father to have to move residences again, and to an uncertain address which may not have been to her liking; fractured the family that SG had believed she had to that point - as she believed D. G. was her real father, and that therefore Mr. H. was her “uncle”; moreover the “like sisters” relationship between her and A. would very likely end; and her father would likely be estranged from his sister, D. G., common law partner of Mr. H.. [77] recognize that the passage of time before an allegation is made may require me to scrutinize the evidence of the complainant carefully to ensure the complainant’s evidence is reliable. As noted earlier, am satisfied that as to the core allegations here, SG’s evidence is reliable. [78] In conclusion, as to the sense of the evidence of SG, and what experience and common sense when applied to that testimony suggest, and being aware that may accept all, some, or none of the evidence of any witness, am satisfied that SG’s evidence has what is referred to as the “ring of truth” about it in all respects; that is am satisfied beyond reasonable doubt that SG’s testimony is credible and trustworthy as to the core allegations here, and that the essential elements of the offences for which will enter convictions are proved beyond reasonable doubt. [79] Having said that, note that only came to that conclusion after an examination of all the evidence, including that of A. G.. She testified as the only Defence witness, and find her evidence, alone or in combination with all the evidence in the trial that do accept does not raise reasonable doubt in my mind regarding the offences charged. will next examine her evidence, and why reject some of it. [80] A. G. stated that she “volunteered” to testify for her father. When asked whether she knew what the allegations were since there was an exclusion of witnesses order, she stated: “I overheard I’m nosy... read her statement at home my dad and the lawyer said it was okay... I’m not sure if read the preliminary inquiry transcript”. She concluded that as to what was alleged she knew “the main things”. [81] Regarding the manner of her answering questions, note that she was somewhat strident in her (direct especially) examination, which interpret as an attempt to favorably present her father’s position. For example: i) When she was asked whether she and SG showered together one after another in the same bathroom, she answered that they did, and that they used the locks on the doors “all the time”; when asked the simple question of “Did D. ever talk to you kids?”, she unhesitatingly responded that “D. talked to us we could tell her if we were abused she had been abused herself by her dad [C. G.]” and that D. told this to A., her two brothers, SG and her brother. Moreover, they were “continuously told” that if anyone touched them in any way, not just sexual way, that they did not like, they should feel free to come to talk to her. In cross examination she elaborated that, “Well that’s all she ever talked about”; ii) similarly when she was asked in direct whether she had ever seen Mr. H. have physical contact with SG, she responded: “No” confirming that she included in that reference Street through to and including Crescent. In cross examination however, she readily conceded: “We were all tickled” but followed that up by asking “What does this have to do with this other men do it too... did not think that was relevant”; iii) when asked whether she had ever seen “anything strange” when SG was visiting there, without elaboration as to what was meant by “strange” in the question, she simply said “no”; iv) when it was suggested to her in cross examination that Mr. H. would sometimes look after the kids, she noted that SG was there pretty well every day of the summer and that “Mom always stayed home during the day”. When pressed about this answer she responded “I never said she was there every day all day long”; v) when asked in cross examination whether Mr. H. was ever left to look after the kids, when SG and her brother were there, she responded: “Well it wasn’t just C. there was other adults in the house”; vi) asked in direct examination whether SG had ever slept on couch in the homes, she answered: “Never”; vii) in direct examination she estimated that D. G.’s father, C. G. [who had molested her mother according to A.] died between 2003 and 2004, yet she suggested that he lived with them at Street until he died. This is very much in contrast to M. G’s evidence that he passed away while D. G. was living with his father at Road and that is why D. G. moved to Road. She also suggested that his wife B. G., was “constantly around”. She also testified that she and SG “did mostly everything together” and shared secrets “all the time”, and “pretty much every night” SG would sleep with her in her bed. [82] As to the external consistency of her evidence, it is not consistent with SG’s mother’s evidence regarding C. G., whose evidence on that point do accept. Her evidence about the pool is generally consistent with that of SG except that A. insisted there would always be adults on supervision, otherwise the gate would be locked to render the pool inaccessible [for the one-month that the fence was around the pool]. [83] As to the internal consistency of her evidence, noted that it did change in some respects from direct to cross examination for example that she never saw physical contact between SG and her father, but later she testified: “We were all tickled” by her father. [84] As to whether A. G. has motive to lie, note: i) Mr. H. is her father, and she appears to be close to him as he is the provider for the family. While not compelling by itself this is factor to consider. More importantly, she and her baby moved in to live with her father within the last month, and she admitted she was “angry” with SG for making the allegations against her father. In fact, she was so angry that she revealed to SG, against the expressed instructions of SG’s parents, that D. G. was not SG’s biological father. She would also be angry against SG for having split the family. As she put it, she “lost sister and younger brother” because of these allegations; ii although she had access to the police statement and preliminary inquiry transcript of SG to inform her about the “main things” that SG alleged, got the distinct sense that she came to testify in order to convey to the court certain specific information, and that her specific answers to general questions as noted earlier are an example of that. note as well that her perception of why SG would have made up such allegations did not appear to make sense. She suggested that SG made up the allegations so they would cause her father to move in with her mother, and that therefore SG would have the benefit of his financial and perhaps emotional support. SG’s mother and D. G. lived apart in apparent harmony since before 1998. The children’s relationship with D. G. was apparently good throughout all material times herein. Moreover, did not believe her when she insisted that “I wanted her to know then [D. was not her real father] thought it was important for her to know”. It is very clear to me that she was angry at SG and did it to be hurtful and for no other reason. [85] also note that during her cross examination, her answers caused me to question her credibility either in the sense of her honesty or reliability. For example, having been so familiar with SG, she admitted she did not know SG’s birthday. The best she could muster was to say: “I knew she was younger than me”. When she was asked whether they went to the same schools during the period whether A. knew SG, she stated: “I don’t think so”. She was not sure how many grades separated the two of them, although she thought it was one or two years. When asked why she did not know more about SG she stated: “I did not hang with her in junior high we did not hang out... We had totally different group of friends”. In direct examination, she went out of her way to indicate that SG and her brother always wanted to be at their place and spent “every” Christmas and Easter there, and went on vacations with her family. She said that “any time they did not have school” they wanted to be at Mr. H.’s place. She went on to say that SG stated she wanted to live with her father not her mother, when SG was living at Street. However, when asked shortly thereafter whether SG said anything to A. about D. G., A. commented that SG referred to him as “disgusting and gross and rude... that’s basically it”. reject A.’s evidence on these latter two points. [86] When the Crown Attorney asked her when the family moved to Street, she stated she was “too young” to remember. Asked when the family moved to Street and Crescent, she similarly stated she didn’t know. [87] When apply life experience and common sense to the evidence of A. G., in the context of the evidence in this case, found her evidence to be generally unreliable and not credible, with some exceptions which noted earlier in this decision. Her evidence standing on its own, or in combination with the evidence in this case which do accept, does not raise reasonable doubt about the guilt of her father on the offences charged. [88] Mr. H. is presumed innocent until proven guilty on each of the charges before the Court. can accept all, some or none of any witnesses evidence. carefully examined all of the evidence and found SG to be credible. Based on her evidence regarding the core allegations and the essential elements of each of the offences charged herein, I am satisfied beyond a reasonable doubt such that:i) regarding Count #1 and the Crown position on the incidents which could be characterized as sexual assaults, I find Mr. H. guilty [of all those incidents except the “couch incident” for which I have reasonable doubt about whether the essential elements of the offence have been proved based on SG’s evidence, which I accept];ii) regarding Count #2, I find Mr. H. guilty under s. 151 [of all those incidents covered under Count #1 noted above, except the “couch incident”, and the most recent (“garbage bag”) incident which happened after May 1, 2008 at * Crescent];iii) regarding Count #4, I find Mr. H. guilty under s. 151 of the most recent (“garbage bag”) incident which happened at * Crescent after May 1, 2008 and more specifically around early March 2009;iv) regarding Count #3, I find Mr. H. guilty under s. 152 regarding the “ * the dog” incident when he walked into a room with SG present and exposed his penis to her and stated: “if you don’t take your pants off, I will”; and he told her repeatedly to “just touch it”. Regarding the earlier incident at Street when SG was playing computer games and Mr. H. offered her $20 “if would do something to him or let him do something to me...”, the evidence of SG, which accept, though it caused me to seriously consider convicting Mr. H. on that evidence, was not specific enough to allow me to conclude beyond reasonable doubt that Mr. H. had offered her the $20 as an invitation to sexual touching. [89] In summary, I find Mr. H. guilty of the offences contained in all counts. Our Court of Appeal and others have ruled that conditional stay should be imposed by trial courts where convictions for sexual assault and sexual interference arise from the same facts v. SJM 2009 ONCA 244 (CanLII); v. CGF 2003 NSCA 136 (CanLII). Therefore will conditionally stay the convictions under Count #1 i.e. s. 271 of the Criminal Code.

The accused was charged with sexual assault and various other sexual offences with respect to his niece (who had spent weekends and summers with her father, who lived with his sister and the accused) when she was between the ages of 12 to 15. The accused denied the allegations, suggesting that, since the niece had not disclosed any of these matters until she was 17 years old, she had made up generalized allegation against him to stop her boyfriend from breaking up with her and then found it necessary to maintain the lie, tell her friends, her mother and the police and get more specific when pressed for details. He also argued that she was not credible because her testimony in court was inconsistent with that in the preliminary inquiry and although there were numerous persons she could have confided in at the time, she never told anybody about the alleged incidents but kept going back to visit her father. Accused found guilty of all counts. Although she was at times frustrated and unable to recall precisely, the niece's demeanour was consistent with a young person doing her best to be truthful and accurate in intimidating and embarrassing circumstances. Her evidence was both consistent with that of other witnesses and internally consistent and the inconsistencies with her previous statements were minor. The court found she had no motive to lie initially or during her trial testimony and the reality was that by making these allegations, she knew her father would be forced to move and would become estranged from his sister, her family would be fractured and the 'sister'-like relationship she had with the accused's daughter would end.

e_2012nssc101.txt

nan Saskatchewan Provincial Court Prince Albert, Saskatchewan IN THE MATTER OF Information No. 32921631 Between Her Majesty the Queen, And Lee Aaron Zoerb Counsel: J. Morall, for the Crown. S. Loewen, for the defence. JUDGMENT Goliath Prov. Ct. J. August 28, 1998 1 GOLIATH PROV. CT. J.:- Lee Zoerb is charged with anassault causing bodily harm to Jason Baikie. The charge arisesout of an altercation which occurred at Uncle Charlie's BarDecember 14, 1997, in which Baikie suffered significant injuriesabout the head and face. The events surrounding the altercation were described by three Crown witnesses, and by five defence witnesses including the accused. As is usually the case, there are discrepancies. The accused admits that he threw punch but says that Baikie struck him first. He also says that he does not think that he caused Baikie's injuries. nan The facts leading up to the incident in question include previous incident in October at Uncle Charlie's in which the accused subdued patron with head-lock and removed him from the bar. The patron happened to be penitentiary employee, and it is suggested by the defence that his co-workers were out to "get" the accused or to exact some manner of revenge. There are other facts tending to show that Jason Baikie, who works at the penitentiary, was not favourably disposed toward the accused, and that he was indeed instrumental in bringing about the events which resulted in his injuries. His remarks made to Mr. Green in the washroom prior to the alleged assault support the defence's theory that he may indeed provoked the incident. nan The facts relevant to the determination of the issues are as follows: nan Jason Baikie arrived at Uncle Charlie's around 11:00 p.m. on the date in question. He met some friends and associates, and spent the rest of the night socializing and dancing. The accused was employed by Uncle Charlie's as adoorman and relief bartender. During the course of the evening there were two minor incidents and exchanges between Baikie, his associates, and the accused, neither of which progressed beyond the verbal stage. At about 3:00 a.m., Baikie says he observed the accused make motion or gesture which he interpreted as an invitation to become involved with him, or "bring it on" (i.e. get involved or get into fight). It is at this point in the proceedings that the witnesses' descriptions of events begin to nan Baikie says that he approached the accused and said "what's your problem?". Jason Layman got between him and the accused and turned him around, to defuse the situation. Baikie says that as he was turning around he was hit on the back of the head, saw stars, and woke up in the off-sale part of the bar. Baikie had been drinking at Uncle Charlie's since about 11:00 p.m. He had had one beer before going there, and probably six or more shots of gin in "mini pitchers". He was clearly intoxicated. nan Jason Layman also says that the accused motioned to Baikie to "bring it on". When Baikie got involved, he says, he got between them and turned him around, saying "we don't need this shit". He says at this time the accused punched Baikie and knocked him down. He says that accused gave Baikie two more shots, one on the nose, and another around the eye. Layman had had about three drinks on the night in question as he was designated driver. He was not intoxicated. nan Jennifer White also says that the accused was pointing at Baikie and inviting to come over to him. She confirms the testimony of Baikie and Layman to the effect that Baikie had turned to walk away when the accused got off his perch on the d.j. booth and hit him. White had had two drinks and was not intoxicated. She drove Baikie to the emergency department of the Victoria Hospital. nan At the conclusion of the case for the Crown, defence counsel advised that there were issues of consent and self defence, and that the trial should be adjourned to permit the calling of defence witnesses. The trial was adjourned accordingly. nan For the defence, Derrill Bannerman testified that it was the "little guy", meaning Baikie, who was the more aggressive, and who he says took swing at Lee Zoerb. He says that the "bigger guy", who was Jason Layman, was trying to hold him back. He says he did not see Zoerb hit Baikie. Bannerman was the "d.j." at Uncle Charlie's and the self-proclaimed "eye and ears" for the doorman. He had had about three beers and was not intoxicated. 10 George Villeneuve was at the beer and wine entrance when he says he saw Baikie "taking swing" at Zoerb. He says "Lee (Zoerb) went at him, to restrain him". He says he did not see Zoerb swing. Villeneuve had consumed about three rye-and- cokes and was not intoxicated. 11 Robert Green spoke with Baikie in the washroom one half hour to three-quarters of an hour before the incident. He gathered from the conversation that Baikie had something against Zoerb, and he accordingly warned Zoerb that he should watch out for him. Green says he did not observe the incident, but only the beginning of it, when he says, "they grabbed onto each other", and the "tail-end", when he says he saw "two people falling to the carpet". Green is an AA member and does not drink. 12 Cory Lillis says that he saw Baikie move towards Zoerb and saw Layman intervene. He says that Baikie was trying to push past Layman, that he had started to raise his arm, and that Zoerb then hit him. Lillis said that he tried to restrain Layman and that they fell back down three steps, landing upon Baikie "causing him to be knocked out". He says he did not see any injuries. Lillis says also that he observed the two previous exchanges between Baikie and the accused, which did not develop. He says that punch which Zoerb threw at Baikie was "not that hard", and that he does not know how Baikie sustained the injuries. Lillis had not been drinking on the occasion. 13 The accused testified that he had been warned that some penitentiary employees were out to get revenge upon him for his handling of the incident in October, and that he should "watch his back". On the night in question, Robert Green had told him about the conversation with Baikie in the washroom. He says that when Baikie approached him, he jumped off the d.j. booth and whistled for assistance. He says that Baikie became agitated and aggressive, and that Layman then intervened. He says that Baikie was trying to swing at him over Layman's shoulder, and that Layman then stood out of the way so that he (Baikie) could "get clear shot". He says that Baikie then hit him on the shoulder, and he swung back and hit him on the back of the head. He says that Layman then came at him, that Lillis grabbed him, and that they then fell down the steps onto Baikie. He says he does not think that anything he did caused Baikie's injuries. He was not drinking on the occasion. He says he rarely drinks on the job. 14 The testimony of the three Crown witnesses is consistent, and is corroborated by the actual injuries which Baikie sustained. Bannerman's evidence indicates that Baikie was more aggressive than the Crown witnesses would have us believe, and that he in fact threw punch at the accused. Villeneuve agrees with this observation, while Lillis says only that Baikie was trying to push past Layman and had raised him arm before Zoerb hit him. Green saw the accused and Baikie grab onto each other, and people falling down. The accused says that Baikie was swinging at him over Layman's shoulder. 15 I find the facts to be as stated by the Crownwitnesses, with the qualification that Baikie did indeed attemptto "get at" the accused whilst being restrained by Layman. He may have thrown punch at the accused or attempted to do so, but his efforts were quite ineffectual. I find that in hisinebriated state, he was no threat to the accused, and that theaccused in fact took advantage of the situation to administer abeating to him. find that the accused administered several blows to Baikie, either at the beginning of the altercation, or as he took him out. do not accept the accused's view that Layman was trying to set him up by allowing Baikie "clear shot" at him. Layman was simply attempting to prevent Baikie from getting involved in fight with the accused. Nor do I acceptthe accused's evidence that he threw only one punch, or Lillis'evidence that he and Layman knocked Baikie out by falling onhim. The injuries are simply not consistent with this scenario. 16 I do not accept the argument that the accused wasacting in self defence. Even if he was, he used more force than was necessary. Neither Section 34 or Section 37 of the CriminalCode justifies the assault. find that the accused did assault Jason Baikie and did thereby cause bodily harm to him. I findhim guilty. GOLIATH PROV. CT. J.

The accused, employed as doorman and relief bartender at the time of the altercation, was charged with assault causing bodily harm in which the complainant sustained significant injuries to his head and face. Three crown witnesses and five defence witnesses testified as to the altercation in the bar. HELD: The accused was found guilty. 1)The self-defence argument was not accepted. Neither s.34 or s.37 of the Criminal Code justified the assault. 2)The testimony of the Crown witnesses was accepted. The complainant was no threat to the accused in his inebriated state and the accused took advantage of the situation to administer a beating to him. The injuries were not consistent with the scenario described by the accused and the witnesses.

e_1998canlii13359.txt

1991 S.H. No. 76225 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: CONSTABLE MAUREEN WHITE and CITY OF DARTMOUTH, BARRY J. ALEXANDER VANCE MACDONALD and GARY, R. MILLER, Chairman and Members respectfully of the Police Review Board and the POLICE REVIEW BOARD (NOVA SCOTIA) Respondents HEARD: at Halifax, Nova Scotia, before the Honourable Mr. Justice Jamie W.S. Saunders, Trial Division, on June 11, 1991 (in Chambers) DECISION: July 22, 1991 COUNSEL: David W. Fisher, Esq., Solicitor for the Applicant Alison W. Scott, Esq. Solicitor for the Respondents, Police Review Board and Members Philip Chapman, Esq., Solicitor for the Respondent, City of Dartmouth 1991 S.H. No. 76225 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: CONSTABLE MAUREEN. and CITY OF, DARTMOUTH, BARRY J. ALEXANDER, VANCE MACDONALD and GARY R. MILLER, Chairman and Members respectfully of the Police Review Board and the POLICE REVIEW BOARD (NOVA SCOTIA) Respondents SAUNDERS, J.: The issue in this case is whether police officer may overturn the decision made against her by the Police Review Board for the reason that the Regulation number by which she was charged did not precisely correspond to the Regulation number for which she was found guilty. Constable Maureen White ("White" or "the applicant") argues that the Nova Scotia Police Review Board erred in finding her guilty of disciplinary default for which she had not been charged. The Board contends that it was fully entitled to do so. BACKGROUND: In February and March, 1990 members of the public wrote to the Chief of Police of the City of Dartmouth to complain about the conduct of Constable White in the course of an investigation into an alleged assault. All three complaints arose from the same incident. Two of the complainants were victims of the alleged assault while the third was parent of one of the victims. The complaints were formalized as required by N.S. Reg. 101/88, s. 6(3)(a), made pursuant to the Police Act, R.S.N.S. 1989, c. 348, s. 7. The substance of the formalized complaints was that Constable White lied to the complainants concerning the investigation and that she treated them in rude and abrupt manner. Constable White was given notice of the allegation against her by Form 11, pursuant to Reg. 16(8), on March 20, 1990. The substance of the allegation was that she "abused authority by, being discourteous or uncivil to any member of the public having regard to all the circumstances; by being rude, abrupt and lying contrary to Section 5(1)(g)(iii), Part 2, Code of Conduct and Discipline of the Regulations made pursuant to the Police act. Following an initial investigation into the allegations, formal disciplinary process was initiated by serving Constable White with Form 12, pursuant to Reg. 16(14). The substance of that notice contained the same words as in Form 11, quoted above. In addition, it was specified that minor penalty would be sought and that the maximum penalty would be reprimand. The next step in the process was final investigation report, prepared as Form 9, pursuant to Reg. 12(3). copy of the report was forwarded to the complainants. While the report does not contain any reference to the specific behaviour of Constable White, the alleged misconduct is described in the wording of Reg. 5(1)(g)(iii): "Abuse of authority by being discourteous or uncivil to any member of the public having regard to all the circumstances." The investigating officer concluded: "After reviewing the evidence find that it indicates that Cst. White has committed an offence under Section 5(1)(g)(iii) of the Police Act and Regulations and have informed the Disciplinary Officer that he should proceed with charges against Cst. Maureen White." The next step in the proceeding was hearing before Inspector Crossley of the Dartmouth City Police Department on June 7, 1990. At this point the allegations of rude and abrupt behaviour seem to have been dropped. The allegations as specified in the report of the Disciplinary Hearing are as follows: "Constable Maureen White, member of the Dartmouth City Police Department was alleged to have committed Disciplinary Default under the Regulations made pursuant to the Police Act by abusing authority, that on February 21st, 1990 at 6:00 P.M., Constable Maureen White, lied or misled Cathy and Alana Faulkner into believeing she had permission of the Chief of Police to be at Meeting, arranged by Constable Richard Gilroy, to discuss the results of an investigation, when indeed she did not, contrary to Section 5(1)(g)(iii), Part Code of Conduct Discipline of the Regulations made pursuant to the Police Act." Constable White was found "guilty of this offence" and the penalty imposed was reprimand. She was represented by counsel at this hearing. Constable White initiated a review of Inspector Crossley's decision before the Police Review Board, pursuant to Reg. 17(1). formal hearing before the Review Board took place October 31, 1990. The issues presented at the opening of the hearing by counsel for the City of Dartmouth, Mr. Moreash, were not framed in terms of specific default provision, but rather: 1. Whether Cst. White lied when she said that she had permission of the Chief of Police to attend the meeting of February 21, 1990? 2. If so, does that constitute disciplinary infraction? Constble White's counsel, Mr. Fisher, made no comment on the specific issues in his opening statement, which immediately followed Mr. Moreash's statement. In his closing statement, however, Mr. Fisher proposed third issue, that the appropriate charge had not been made out. He argued that lying is not component of disciplinary default 5(1)(g)(iii), which is "being discourteous or uncivil to any member of the public, having regard to all the circumstances." Rather, it is component of disciplinary default 5(1)(d)(I): "engages in deceit by (I) wilfully or negligently making or signing false, misleading or inaccurate oral or written statement or entry in any official document or record or otherwise pertaining to official duties." Since the allegation against Constable White was framed in terms of disciplinary default 5(1)(g)(iii), Mr. Fisher submitted that it was not open to the Review Board to find her guilty of any other disciplinary default. Essentially his position was that the Review Board could only consider these questions: 1. Whether Constable White lied? and 2. If so, does that constitute an infraction of disciplinary default 5(1)(g)(iii)? In its written decision dated January 16, 1991, the Police Review Board stated the issues for their decision as follows: 1. Did Constable White lie or deceive the complainants? 2. If Constable White did lie or deceive the complainants, is the nature of the offence disciplinary infraction and is the reprimand imposed appropriate considering all the circumstances? The Review Board answered these questions in the affirmative. Then it considered "the third and final issue [of] whether Constable Maureen White was charged under the appropriate Regulation." The Review Board concluded that the section reference in the charge did not necessarily have to be accurate: "Firstly, this Board is of the opinion that there is no doubt that Constable White knew the nature of the allegations being made against her. At the commencement of the hearing, both Michael Moreash on behalf of the City of Dartmouth, and David Fisher on behalf of Constable White stated the issues for this Board to decide which included the subject matter of the third allegation against Constable White, that being the allegation that she made false and inaccurate statement which was misleading. In the opinion of this Board, the real issue is whether or not Constable Maureen White has had fair and adequate hearing. Specifically, has there been sufficient notice of the hearing as well as the nature of the allegation. The real issue is whether or not notice is clear and definitive so as to particularize the grounds of the complaint so as to enable the person to whom it is directed to know what case he must meet. The key is that the charges against person are made known sufficiently so that the person can present an effective defence." In the result, Constable White was found "guilty of having committed disciplinary default by making false and inaccurate statement and thereby misleading the complainants." This is the wording of disciplinary default 5(1)(d)(I), while the charge was framed in terms of default 5(1)(g)(iii). ISSUE: The applicant submits that she was charged with disciplinary default 5(1)(g)(iii) but found guilty of default 5(1)(d). She challenges the jurisdiction of the Police Review Board to find her guilty of an offense which was not specifically referenced by that particular Regulation section in the charge against her. The Board replies that White was charged with lying and misleading, that she had notice of this specific charge, that this was the issue before the Board, and a reference or citation of a particular default regulation does not necessarily limit the Board's jurisdiction. NATURE AND SCOPE OF REVIEW: This is not an appeal. An application for an order in the nature of certiorari initiates judicial review as opposed to an appeal. Worker's Compensation Board of Nova Scotia v. (unreported), S.C.A. No. 01964, October 5, 1988) referred to by Glube, C.J.T.D. in Hubley v. Worker's Compensation Board of Nova Scotia (unreported, S.H. 74919, April 19, 1991): "Many questions that might properly be considered by court on an appeal are irrelevant to motions for certiorari. Thus despite the court's view that tribunal's decision may be wrong it is beyond the court's power to correct is so long as it is made without jurisdictional error or recorded legal error." The reins of restraint against judicial intervention are cinched even tighter if privative clause is found in the tribunal's empowering legislation. Section 33(3) of the Police Act provides: "The decision of the Review Board shall be final." Such clause was found to be privative clause in Welk v. Saskatchewan Social Services Appeal Board (1985), 1985 CanLII 2564 (SK QB), 23 D.L.R. (4th) 698 (Q.B.), affirmed on this issue though reversed in the result, (1986), 1986 CanLII 3403 (SK CA), 28 D.L.R. (4th) 475 (C.A.), leave to appeal to the Supreme Court of Canada refused May 20, 1986. There is good reason for affirming hands‑off policy. Curial deference is extended to administrative tribunals on account of their specialized purpose, expertise and the speed and efficiency with which they do their work. It is now well established that judicial review will only occur if tribunal has erred by reaching patently unreasonable conclusion to question within its jurisdiction; or it commits simple error in interpreting or applying legislative provision which confers (or limits) its jurisdiction. In the recent decision of the Supreme Court Court in CAIMLAW v. Paccar of Canada Ltd., 1989 CanLII 49 (SCC), [1989] S.C.R. 983, La Forest J. stated: "Where, as here, an administrative tribunal is protected by privative clause, this Court has indicated that it will only review the decision of the Board if that Board has either made an error in interpreting the provisions conferring jurisdiction on it, or has exceeded its jurisdiction by making patently unreasonable error of law in the performance of its function; see Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp.,1979 CanLII 23 (SCC), [1979] S.C.R. 227. [At p. 10031" See as well the comments of Beetz, J. in U.E.S., Local 298 v. Bibeault, 1988 CanLII 30 (SCC), [1988] S.C.R. 1048; and Sopinka, J. in Public Service Alliance of Canada v. Her Majesty the Queen Represented by the Attorney General of Canada (unreported, S.C.C., March 21, 1991) The question of law for me to decide is whether notice of an alleged disciplinary default is defined by referring to the particular regulation cited in the notice; or rather the behaviour described in the content of the notice. must decide whether the issue relates to legislative provision which limits the Police Review Board's powers (in which case simple error would cause the Board to lose its jurisdiction) or whether it is an issue within the Board's jurisdiction. To maintain such distinction requires functional analysis as proposed by Beetz, J. in Bibeault, supra and applied by Sopinka, J. in Public Service Alliance of Canada, supra. Five factors are to be considered. 1. Wording of the enactment conferring jurisdiction on the administrative tribunal The wording of the Police Act and the Regulations pursuant to it does not expressly require that disciplinary default be set out in the notice by citing specific regulation defining the default. Form 12, which is essentially the notice that initiates disciplinary procedure, requires the person completing the form to insert the appropriate section from the Discipline Code in the space indicated. This direction is in footnote on Form 12. It is noteworthy that Form 12 also has footnote giving direction regarding whether major or minor penalty will be sought, but there is also an express requirement in Regulation 5(2) that designation of the class of penalty must be contained in the notice. The fact that one footnoted direction is expressly covered in the legislation while another is not suggests that Form 12 directions by themselves are not legislative. The history of the Regulations pursuant to the Police Act also offer an aid to interpretation. Predecessor regulations made pursuant to the Police Act, S.N.S. 1976, c. specifically required that the precise disciplinary default be set out in the charge: "(13)(l) If the Chief of Police or his delegate considers that disciplinary charge should be laid, he shall prepare charge in Form setting out therein the precise disciplinary default alleged to have been committed, the maximum penalty applicable having regard to all the circumstances, and the date, time, and place of the first hearing. (emphasis mine. Quoted in Ans v. Paul (1980), 61 N.S.R. (2d) 256, at p. 258) The present Police Act and Regulations omit this requirement. 2. Purpose of the statute creating the tribunal. The Police Act does not expressly set out its purpose. However, it is obvious from its broad scope that the Act clearly covers both public protection from abuse of police power, and protection of police officers from unwarranted disciplinary action. While this dual purpose offers no clear guidance to the interpretive issue facing me, it does suggest that fair and proper balance be maintained between these two laudable objectives. 3. The reason for the existence of the Police Review Board This can be gleaned from the powers given to the Review Board in the Police Act: 29 The Review Board may conduct hearings into (a) complaints referred to it in accordance with the regulations; (b) matters of internal discipline referred to it in accordance with the regulations; and (c) the suspension of member of municipal police force who has been suspended with pay on the application of the chief officer or the Commission. 1985, c. 33, s. 17. Parties to proceedings 31 At hearing of the Review Board, (a) where the review is the result of or involves complainant, the complainant; (b) member of municipal police force who is the subject of oomplaint or disciplinary proceedings; (c) the chief officer; (d) the board; (e) any person who can demonstrate personal interest in the proceedings; and (f) the Solicitor General, may be parties to the proceedings. 1985, c. 33, s. 17. Hearing de novo 32 hearing by the Review Board shall be hearing de novo and the parties to the proceeding may (a) appear and be heard and be represented by counsel; and (b) call witnesses and examine or cross‑examine all witnesses. 1985, c. 33, s. 17. Powers of Review Board at hearing 33 (1) At hearing under this Act, the Review Board may (a) make findings of fact; (b) dismiss the matter; (c) find that the matter under review has validity and recommend to the body responsible for the member of the municipal police force what should be done in the circumstances; (d) vary any penalty imposed including, notwithstanding any contract or collective agreement to the contrary, the dismissal of the member of the municipal police force or the suspension of the member with or without pay; (e) affirm the penalty imposed; (f) substitute finding that in its opinion should have been reached; (g) award or fix costs where appropriate; and (h) supersede disciplinary procedure or provision in contract or collective agreement. Requirements for decision (2) The decision of the Review Board shall be in writing and provide reasons therefor, and shall be forwarded to persons entitled to be parties to the proceeding. Decision is final (3) The decision of the Review Board shall be final." From these provisions it is clear that the Review Board exists as final, specialized forum in which matter of complaint against police officer or internal discipline is fully heard de novo before an independent decision making body. The broad powers of the Review Board at the hearing in s. 33, and in particular s. 33(h) which allows the Review Board to "supercede disciplinary procedure or provision in contract or collective agreement", favours an interpretation that enhances rather than restricts the powers of the Police Review Board. It appears to me to be inconsistent with these expressly conferred powers if the direction in the footnote to Form 12 were interpreted as legislative provision limiting the tribunal's powers. Rather, regard it as merely procedure in the disciplinary process which the Board has express legislative authority to supercede, by virtue of Section 33(1)(h). 3. The area of expertise of the members at the Police Review Board. The Police Act and Regulations pursuant to it do not specify the qualifications for membership on the Police Review Board. This Board is called on to make decisions regarding matters of discipline and complaints against the police force. On this factor, statutory interpretation which might recognize the Board's particular expertise, does not arise. 5. The nature of the problem before the Tribunal. The applicant argues that the very nature of disciplinary proceedings renders the process quasi‑criminal thereby requiring strict adherence to procedural safeguards. They rely on Storm v. Board of Police Commissioners (Halifax) (1987), 78 N.S.R. (2d) 365; and Perrott v. Storm (1985), 1985 CanLII 3068 (NS SC), 18 D.L.R. (4th) 473. Those cases are distinguishable. They dealt with clear violations of express regulations. These and other cases upon which the applicant relies involve procedural defect which is both material and important to the whole notion of whether natural justice was provided. Whether procedural provision is mandatory or simply directory depends on its importance to the proceedings. The more important the provision the more likely the individual will be prejudiced by its breach. In this case the particular section number is immaterial as the record clearly discloses that White was fully apprised of the circumstances giving rise to the complaint and fully prepared, with counsel, to defend herself. Interference by certiorari will not be countenanced for mere trivial or technical oversights. Martineau v. Matsque Institute Disciplinary Board (No. 2) (1979), 1979 CanLII 184 (SCC), 106 D.L.R. (3d) 385 (S.C.C.) (2d). To grant certiorari here would be tantamount to telling these complainants that Constable White's conduct was excused on the basis of technicality. In the case before me am dealing with direction in footnote contained in the Form 12 notice. Regulation 5(2) specifies that Form 12 is the notice by which police officer is informed of an allegation of disciplinary default. The form itself provides for the particular default citation as well as the substance of that default. However, it is not clear whether both the citation and the conduct must be set out in the notice. The applicant argues that the particular regulation number must be cited as an absolute requirement. do not agree as to do so would require an interpretation that the footnoted directions at the bottom of Form 12 are in effect regulations relating to disciplinary proceedings. The applicant says she was charged under the wrong regulation. That instead of Form 12 specifying disciplinary default of being discourteous or uncivil to members of the public "by being rude, abrupt and lying while investigating ." contrary to Section 5(1)(g)(iii) the form should instead have properly charged her under Regulation 5(1)(d), the so‑called deceit section. After considering all five of these factors and applying them to the circumstances of this case, cannot agree. Notice of disciplinary default need not only be particularized by reference to the specific regulation. It may 'be sufficiently' drawn to the attention of the member by describing the alleged misconduct which forms the subject of the complaint. Constable White had been assigned to investigate two alleged assaults, the first against Ms. Faulkner and the second against Michael Fisher. Alana Faulkner, Cathy Faulkner and Michael Fisher weren't satisfied with the investigation and complained that Constable White had conducted herself in an unprofessional manner. They alleged that she lied to them and failed to interview all witnesses and was rude and abrupt. The allegations which were the subject of the first two complaints were dismissed by the disciplinary officer. That left only the allegation against White that she lied regarding meeting held February 21, 1990 in which she told these people that she had the permission of the Chief of Police to be present when in fact she did not. The nature of White's deception is best captured in this portion of the Board's decision: "At the commencement of the meeting, Mrs. Faulkner immediately took objection to Constable White's presence. Constable Gilroy immediately responded by saying that all parties present were adults and the purpose of the meeting was simply to set out the facts. In addition, during the conversation concerning Constable White's attendance at the meeting, she stated, 'The Chief gave me permission to be here'. Once it was indicated to the complainants that Chief Trider had given permission for Constable Maureen White to be present, that ended the discussion and the meeting proceeded. The rest of the meeting was relatively uneventful. Constable Giroy simply explained to the complainants the nature of the alleged assaults, the evidence that had been gathered, and why an assault charge would not be laid. However, following the meeting complaint was made to Chief Trider that he should not have given his permission to Constable White to be at the meeting. It was at this time that the complainants learned that Chief Trider had not given his permission for Constable White to be at the meeting. Thus the third complaint arose against Constable White for having deceived the complainants into believing that she had permission from Chief Trider to be present at the meeting when in fact she did not have permission. The first issue the Board has to decide is whether or not Constable Maureen White made false, misleading or inaccurate statement thereby deceiving the complainants. In the opinion of the Board, the facts are clear that Constable Maureen White did make false and misleading statement by stating to the complainants that she had the permission of Chief Trider to be present at the meeting, when in fact she did not have that permission. .What was said by Constable White was said to member of the public. It was said to member of the public in an official situation in order to justify her presence at the meeting. It may have been said to avoid confrontation but this does not justify what was said. By stating she had the permission of Chief Trider to be present, it attributes words to Chief Trider which were not spoken by him. As result it caused Chief Trider to be placed in position where he had to explain to the complainants that he did not give the permission which was alleged to have been given. This placed Chief Trider in an awkward position. In conclusion, this Board is of the opinion that the statement made by Constable Maureen White was false, misleading and inaccurate." After referring to the varying impugned conduct (being rude, and abrupt, and lying) the Police Review Board noted that it is sometimes difficult to properly categorize the facts of situation in one all‑encompassing disciplinary default. The Board interpreted its own jurisdiction as permitting the substitution of the appropriate default section. agree. White had ample and continuous notice of the nature of the allegations against her. She was represented by counsel. The Police Review Board conducted hearing de novo and reached the same conclusion as the investigating officer regarding Constable White's "guilt" of the alleged misconduct, specifically that she "lied to or misled" the complainants. The penalty imposed by the senior disciplinary officer was mere reprimand. That penalty was upheld by the Board. No unfairness or breach of natural justice was occasioned when the Review Board found that the elements of lying or misleading fell within the default particularized by Regulation 5(1)(d) rather than 5(1)(g)(iii) as typed on the notice form. find the Board was free to substitute what it felt to be the "proper" section number and conclude, in the circumstances, that Constable White was guilty of the disciplinary default referred to in 5(1)(d). The footnote direction to refer to specific offense is technical requirement that is directory only. footnote is hardly place where one would expect to see mandatory procedural requirement. It is obvious from review of all of the forms which were completed, including Form 12, that the allegations made against White included the allegation that she had lied to the complainants during the course of the investigation. It is clear from review of the cross‑examination of witnesses by counsel for the applicant, as well as the direct examination of the applicant that the focus of the evidence was whether she had lied at that meeting and whether there was "any intent to deceive" (Transcript, p. 109, lines 21 25). The failure to refer to what the Police Review Board considered the "proper" offense in the original complaint was a technical defect only, and in no way materially affected the procedural fairness of these proceedings. There is no denial of natural justice if the party has had reasonable notice of the substance of the allegations against her or him and been given the opportunity to respond (Rockandel v. City of Vancouver (1967), 1966 CanLII 445 (BC CA), 59 D.L.R. (2d) 304). For all of these reasons there is nothing which persuades me that the Board's decision is patently unreasonable. I dismiss White's application with costs to the respondents. J. Halifax, Nova Scotia July 22, 1991 1991 S.H. No. 76225 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: CONSTABLE MAUREEN WHITE and CITY OF DARTMOUTH, BARRY J. ALEXANDER, VANCE MACDONALD and GARY R. MILLER, Chairman and Members respectfully of the Police Review Board and the POLICE REVIEW BOARD (NOVA SCOTIA) Respondents DECISION OF SAUNDERS, J.

A complaint was lodged against the applicant police officer that she had been discourteous to the victim of a sexual assault and that she had lied about being granted permission to attend a meeting held to investigate the assault. The applicant was given written notice of the substance of both allegations according to the disciplinary procedure set out in the regulations made pursuant to the Police Act, but in the space provided for the citation the notice cited only the regulation which dealt with the offense of being discourteous. A hearing before an inspector of the Police Department resulted in the applicant being found guilty of the offense of lying. She initiated a review by the Police Review Board which concluded that the section reference in the charge did not have to be accurate. The applicant brought this proceeding for judicial review and submitted that the Board's jurisdiction was limited by the citation of a particular regulation and to finding her guilty of the behaviour described in the regulation cited. Dismissing the application, that the failure to cite what the Board considered the proper offense in no way materially affected the procedural fairness of the hearings or limited the Board's jurisdiction. The applicant had complete notice of the nature of the allegations against her and was represented by counsel at the Board hearing. Certiorari will not issue for mere technical or trivial oversights and there was nothing patently unreasonable about the decision such as would warrant judicial intervention. On appeal

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J. 1997 S.T. No. 07357 IN THE SUPREME COURT OF NOVA SCOTIA and TRURO INTERNATIONAL INC. DEFENDANT HEARD: At Truro, Nova Scotia, on the 4th day of December, 1997. BEFORE: The Honourable Justice Donald M. Hall. DECISION: December 17, 1997. COUNSEL: Peter Rogers, Esq., Counsel for the plaintiff. Peter Lederman, Esq., Counsel for the defendant. Hall, J. This is an action for damages for wrongful dismissal where the plaintiff contends that she was constructively dismissed without notice by her employer, the defendant. The Issues are the following: 1. Was the plaintiff constructively dismissed as result of changes unilaterally made by the defendant in the terms of her employment? 2. If there was constructive dismissal, at what point in time did the plaintiff have notice of the changes which constituted the constructive dismissal? 3. If the plaintiff was wrongfully dismissed, what is the appropriate period of notice that she is entitled to? 4. Should the fact that during her period of employment with the defendant, the plaintiff was absent from her employment for ten months on so-called maternity leave be taken into account to reduce the notice period she would otherwise be entitled to? 5. Has the plaintiff failed to militage? The plaintiff is now thirty-three years of age, married and the mother of two young children. She is presently unemployed and has been since her employment with the defendant ended. She began employment with the defendant in May of 1991. At the time she was paid $10.00 per hour and worked standard 37.5 hours per week. When her employment began with the defendant the Company's name was "McLean's Diesel Limited" and the principal owner at that time was man named Les Mclean. During the early period of her employment the plaintiff’s job related responsibilities included responsibility for accounts receivable, collection of accounts and service writing, which involved an explanation of the work that was done for customers pursuant to work orders. At times she looked after accounts payable and petty cash control. As well she was responsible for opening and distributing mail, doing filing and general correspondence, including typing. She was also the receptionist. In addition she prepared applications for customers seeking credit with the defendant. In January of 1993 the plaintiff received pay increase of ten percent and later the same year she received further increase of ten percent when the office manager employed by the defendant left and was not replaced. Initially the plaintiff received vacation pay at four percent of salary, but after she had been employed with the defendant for period or five years, the vacation pay was increased to six percent in accordance with company policy. This would, of course, be equivalent to three weeks vacation. In 1993 the Company was purchased by Ian D. Coveyduck and year later the name of the Company was changed to its present name, "Truro International Incorporated". Apparently considerable change over in staff followed Mr. Coveyduck's acquisition of the Company and it appears that the plaintiff is the last pre-Coveyduck employee of the defendant. In 1996 Wayne Teasdale, part-time accountant for the Company. came on the scene and recommended substantial changes in staff, systems and job descriptions, which were apparently adopted by Mr. Coveyduck on behalf of the defendant. In October of 1996, Mr. Teasdale queried the plaintiff as to whether her job could be done in 25 to 30 hours per week. Apparently she responded that it might be possible, and that it would have to be tried. At the time the plaintiff was pregnant and anticipated going on maternity leave in early January, 1997. It was planned that temporary replacement would have to be found for her. In furtherance of obtaining replacement an advertisement appeared in the local newspaper, The Truro Daily News, which stated in part: RECEPTIONIST/BOOKKEEPER Month Term Part-time receptionist/bookkeeper required for busy Truro company. Candidate should have at least years work experience using WorkPerfect and AccPac Accounting. Company is offering competitive salary with flexible hours (25 30 hrs) .... The plaintiff went on maternity leave after January 3rd, 1997, with the expectation that she would return in July of the same year. Ms. Penny Lee Gregory was hired by the defendant as a temporary replacement. She was hired as a part-time employee for a six month period to work 25 to 30 hours per week at a pay rate of $9.00 per hour. Ms. Gregory had graduated from St. Francis Xavier University in 1995, with an Honours Bachelor degree in Business Administration. On June 23, 1997, the plaintiff telephoned Mr. Coveyduck with respect to the timing of her return to work. At that time he informed her that he had not quite settled her position with the Company. meeting of the parties was arranged for the same day. At this meeting letter was handed to the plaintiff by Mr. Coveyduck. This letter provided in part as follows: In trying to create more effective and efficient enviornment we wanted you to be aware of some changes in our operations. These changes were well into the planning stages prior to your leaving on maternity leave. Since early January we have created new position as Accountant/Receptionist that Penny Gilbert has been performing since your departure. This position has the same responsibilities you performed in the past, however, it is now classified as permanent part-time offering flexible hours of up to 25 30 hours week with an $8 hourly rate of pay plus 4% vacation pay paid bi-weekly. These flex hours would include weeks of lesser time than at month end, depending on the workload required to close the monthly journals, etc. We hope you understand our need to change and hope you will help us continue to be more efficient. Should you accept these terms we would like to have you back on staff by July 14, 1997. If, however, you wish to think about this please notify us by June 25 as to secure our staffing needs (sic). In closing, we appreciate and value your services and trust you understand our position in this matter. After reviewing the letter the plaintiff replied that she would have to think about it. Eventually she responded with letter directed to Mr. Teasdale, dated June 30, 1997. In this letter the plaintiff stated as follows: With reference to our June 23, 1997 meeting with Ian D. Coveyduck and his instructions to contact you regarding the letter received that day, please be advised that, although am not required to do so, am prepared to discuss the proposed reduced hours. will not, and understand that do not have to accept loss of seniority (for example 4% vacation pay instead of my current 6%) or reduction in hourly rate. also require clarification of the term "permanent part time" as outlined in your letter. This was followed by letter dated July 8, 1997, wherein she stated. To confirm our July 4, 1997 telephone conversation, you stated that my job would be basically the same, but the hours, rate and vacation rate would be reduced. You stated that under Truro International Inc.'s definition of permanent part-time would not be guaranteed minimum number of hours per week, nor would be paid for statutory holidays. You also stated that the company is not prepared to pay me at my previous rate of $907.50 per bi-weekly pay period, not to provide me with vacation at the rate of 6% or three weeks per year. am prepared to return to work on July 14, 1997, but am not willing to accept reduction in wage, hours, or benefits. Please advise whether the company is prepared to have me return without these reductions in my terms of employment. It had been agreed that if the plaintiff accepted the proposed changes in the terms of her employment, she should return to work on Monday, July 14. 1997, her maternity leave having ended the previous Friday, July 11th, 1997. The plaintiff did riot return to work on July 14th, 1997. Her position was eventually filled by another person on permanent part-time basis at wage rate of $8.00 per hour for twenty-five to thirty hours per week by woman who has Bachelor of Commerce degree. The plaintiff considered that she had been constructively dismissed and commenced this proceeding for damages for wrongful dismissal. She has been actively seeking employment since the termination of her employment with the defendant. The plaintiff maintains that she had not been informed of the proposed changes in the conditions of her employment until she received the letter of June 23rd, 1997. Her counsel, Mr. Rogers, submitted that the duty is on an employer to clearly inform the employee of proposed changes in the contract of employment and here the defendant had failed to do so The plaintiff maintained, as well, that if it is found that she was constructively dismissed she should receive damages based on notice period of seven to ten months, plus vacation pay at six percent, in view of the plaintiff’s six years of employment with the defendant. In calculating the notice period Mr. Rogers says that there should be no reduction made for the months that the plaintiff was absent from employment on maternity leave. He further claimed that the plaintiff has made exemplary efforts to find employment in mitigation of her damages. On behalf of the defendant Mr. Lederman acknowledged that the changes to the terms of the plaintiff's employment were extensive. He argued, however, that the plaintiff had notice of the proposed changes in October of 1996 as result of discussions with Mr. Teasdale which took place during that month, as well as the advertisement that was published for the plaintiff’s temporary replacement. Mr. Lederman claims that it was made clear to the plaintiff at that time that the position would become permanent part-time at 25 to 30 hours per week. He also maintains that the plaintiff did not express any objection to this change at that time and thereby led the defendant to believe that she was acquiesing in the proposed change. He submitted, as well, that as early as October, 1996, the writing was on the wall that there were going to be substantial changes. He argued that but for wilful blindness on the part of the plaintiff and her failure to make inquiries, she would have seen this and could have used her maternity leave to search for new full time position. Mr. Lederman submits, on the otherhand, that if it is found that the plaintiff was constructively dismissed, the appropriate notice period that she would be entitled to would be only three to four months maximum, taking into account the fact that she was employed less than six years, since she was on maternity leave for ten months during her period of employment. The defendant acknowledges that if there was dismissal, it occurred July 14th, 1997, the date that the plaintiff refused to return to work under the new conditions. The general principles respecting constructive dismissal were considered by Gonthier, J., of the Supreme Court of Canada in Farber v. Royal Trust Co. [1997} S.C.R. 646. He said at page 858: Where an employer decides unilaterally to make substantial changes to the essential terms of an employee's contract of employment and the employee does not agree to the changes and leaves his or her job, the employee has not resigned, but has been dismissed. Since the employer has not formally dismissed the employee, this is referred to as "constructive dismissal". By unilaterally seeking to make substantial changes to the essential terms of the employment contract, the employer is ceasing to meet its obligations and is therefore terminating the contract. The employee can then treat the contract as resiliated (rescinded or terminated) for breach and can leave. In such circumstances, the employee is entitled to compensation in lieu of notice and, where appropriate, damages. And at page 859: To reach the conclusion that an employee has been constructively dismissed, the court must therefore determine whether the unilateral changes imposed by the employer substantially altered the essential terms of the employee's contract of employment. For this purpose, the judge must ask whether, at the time the offer was made, reasonable person in the same situation as the employee would have felt that the essential terms of the employment contract were being substantially changed. The fact that the employee may have been prepared to accept some of the changes is not conclusive, because there might be other reasons for the employee's willingness to accept less than what he or she was entitled to have. At pages 864 865, Gonthier, J., referred to, with apparent approval, an article by Mr. Justice Sherstobitoff. He said: In an article entitled "Constructive Dismissal", in B.D. Bruce, ed., Work, Unemployment and Justice (1994), 127, Justice N.W. Sherstobitoff of the Saskatchewan Court of Appeal defined the concept of constructive dismissal as follows at p. 129: constructive dismissal occurs when an employer makes unilateral and fundamental change to term or condition of an employment contract without providing reasonable notice of that change to the employee. Such action amounts to repudiation of the contract of employment by the employer whether or not he intended to continue the employment relationship. Therefore, the employee can treat the contract as wrongfully terminated and resign which, in turn, gives rise to an obligation on the employer's part to provide damages in lieu of reasonable notice. Although Farber was case decided under the Quebec Civil Code, as Gonthier, said at page 865, after referring to the foregoing article, "The common law rule is therefore similar to that applicable in Quebec civil law when it comes to the concept or constructive dismissal." The cases also establish that notice of changes in conditions of employment must be clear, that is, the employer must give actual notice to the employee of the proposed changes. See Holland v. Midland Walwyn Capital Inc. (1993) 124 N.S.R.(2d) at page 212 where Davison, J., said: As stated in Wrongful Dismissal by Harris (1992 Ed.), at p. 3-53: "It is, of course, an essential ingredient of constructive dismissal that the employee have actual, as opposed to constructive, knowledge of the unilateral change in job description." In my opinion, it is abundantly clear that the plaintiff was constructively dismissed by the defendant. She had been an exemplary employee over period of six years which the defendant acknowledged. She obviously was willing worker, undertaking all tasks assigned to her. During the period of her employment she merited two salary increases raising her pay rate to $12.10 per hour. She worked fixed period of 37.5 hours per week. Although her remuneration was calculated on an hourly rate, she, in fact, was guaranteed and was receiving bi-weekly salary of $907.50. In addition, her vacation entitlement had been increased from four percent to six percent of salary after she had been employed for five years, which was in accordance with Company policy. Here Mr. Teasdale testified that he discussed with the plaintiff the prospect of changing her position from permanent to part-time consisting of thirty hours of work per week. He said that it was made clear to the plaintiff that the position would become part-time as of January, 1997, which incidentally corresponded with the time that the plaintiff was to go on maternity leave. He acknowledged in cross-examination, however, that the plaintiff was "surprised obviously" when she was presented with the June 23rd. letter. Mr. Teasdale acknowledged, as well, that prior to this letter the plaintiff had not been advised of the proposed reduction in her rate of pay and vacation pay benefit. The plaintiff acknowledged that after having had the discussions with Mr. Teasdale in October of 1996, and following, she had some concerns as to whether the proposed changes in the position, that is, from full time to part-time, and the reduction in hours of work would apply to her. She maintained, however, that the defendant's intention that they would so apply was not made clear to her until the June 23rd. letter. Where there is variance in the evidence of the plaintiff arid the defence in this respect, prefer that of the plaintiff to the testimony of Mr. Teasdale. am not suggesting that Mr. Teasdale was deliberately trying to mislead the Court, but am of the view that the plaintiff's recollections of the discussions are more accurate and reliable than his. It appears to me that Mr. Teasdale put certain general propositions to the plaintiff as to the viability of the proposed changes and jumped to his own conclusions as to what the plaintiff understood or should have understood from what he was saying. It is clear from his testimony as to her reaction of surprise to the letter of June 23rd, that her understanding of the changes applying to her were not the same as his. This, however. is not the determining factor, that is, whether the employment would be changed from full time to part-time, since it was only one of the changes ultimately proposed and put to the plaintiff. Mr. Teasdale said that he told the plaintiff that the hours of work would be changed to thirty hours per week. This is not what was proposed in the June 23rd letter. It provided for period of employment "up to 25 30 hours per week”, with no guarantee of minimum number of hours per week. As well, Mr. Teasdale acknowledged that nothing was said to the plaintiff about the proposed reduction in her rate of pay vacation pay benefits and statutory holidays until the letter of June 23rd, 1997. The plaintiff said that she considered this "slap in the face". In my opinion, such proposal was indeed insulting, an insult to an employee of six years whom Mr. Teasdale acknowledged merited the "highest recommendation". Not only was she being offered pay rate that was third less than she had been previously receiving and $2.00 less than her starting pay rate, it was $1.00 per hour less than that paid to her temporary replacement. find it incredible that an employer would put such proposition to an employee of the obvious high calibre of the plaintiff with proven track record with her employer. Indeed it seems to me that only an employer displaying callous indifference to the sensibilities of the employee and lacking any appreciation for the contribution made by the employee to the employer's welfare would do so. In my opinion, only an employer blinded by the glow of air enhanced "bottom line" would make such proposal. The employer obviously had no appreciation of the plaintiff's contribution. Indeed. it appears to me as if the employer wanted to get rid of the plaintiff. The defendant put forth "take it or leave it" proposition to her and it was one that she obviously could not accept. I find, therefore, without any hesitation that these changes were fundamental to the employment contract and that the plaintiff was constructively dismissed by the defendant. I also find that the plaintiff had no notice of the proposed changes until the letter of June 23rd, 1997, which put in process events which led to the constructive dismissal as of July 14th. 1997., She was, therefore, wrongfully dismissed as of that date, there being no allegation of just case for the dismissal. The plaintiff is therefore entitled to be compensated in damages. The measure of damages in cases of this nature are usually based on determination of the appropriate notice period. The rule of thumb often applied in determining the notice period is one month for each year of employment. That rule, however, is not cast in stone, particularly where the period of employment was relatively short, that is, only few years as opposed to long term of employment. The factors that are generally taken into account in determining the appropriate period of notice are set forth in judgment of McRuer, C. J. H. C., in Bardall v. Globe and Mail, (1960) 1960 CanLII 294 (ON SC), 24 D.L.R.(2d) 140, which was referred to with approval by Iacobucci, J., of the Supreme Court of Canada in Machtinger v. Hoj Industries Limited (1992) 1992 CanLII 102 (SCC), 40 C.C.E.L. 1, 91 D.L.R.(4th) 491, [1992] S.C.R. 986. In this case Iacobucci J., said al page 998 (S.C.R.): What constitutes reasonable notice will vary with the circumstances for any particular case. Most frequently cited enumeration of factors relevant to the assessment of reasonable notice is from the judgment of McRuer, C.J.H.C., in Bardall V. Globe Mail, (supra) at p. 145: There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of the service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant. In concurring judgment, McLachlin, J., said at page 1009, "These considerations determine the appropriate notice period on termination." Mr. Rogers referred the Court to an interesting and informative article by Michael J. O'Hara in the October, 1997, issue of the Nova Scotia Law News. In the article the author provided table of wrongful dismissal cases decided by Nova Scotia Courts in recent years and set out the notice period determined by the courts in relation to the length of service. It is interesting to note that in the case of one to 4.5 years or service the notice periods ranged from one month to fifteen months with an average of 2.51 months notice for each year of service. In the case of employment of from five to ten years, the range was from five months to twelve months for an average of 1.27 months notice per year of service. The table indicates an overall average of 1.6 months notice per year of service where the employment ranged from one to ten years. It seems to me that in this instance the dominant factor is the non-availability of employment at equivalent remuneration in the Truro area. Mr. Lederman acknowledged that the plaintiff may have difficulty in finding such and, indeed, may have to lower her sights order to obtain employment here. In my view, this supports the proposition that longer notice period than the usual is appropriate. Mr. Lederman urged the Court to take into account the ten months maternity leave that the plaintiff had taken while in the employ of the defendant in the reduction of the period of employment. This would serve to reduce the term of employment from six years to approximately five years. Mr. Lederman, however, was unable to cite any authorities in support of this proposition and candidly acknowleged that leaves of absences for other purposes probably would not be considered in determining seniority and so forth and would not result in such reduction. In this instance can see no justification for making such reduction. The plaintiff in fact, continued as an employee of the defendant even though she did not receive any pay from the defendant. It is also significant, to my mind, that the four months that she had previously spent by way of maternity leave was not deducted froth her period of employment when her vacation pay benefit was increased to six percent after five years of employment. It was also apparent that she was available by telephone for advice and assistance during her maternity leave. More important, however, is the fact that so called "maternity leave" (provided under the Employment Insurance Act, R.S.C. c. 48) is designed to provide employed mothers an opportunity to give to the new born the total care that is required in order for the child to have good start in life. Unquestionably, it is not intended as an opportunity for the employee to be seeking new employment. Although the employee is absent from the workplace, the employment continues. As the term "leave" indicates, the employee is simply absent from work with the permission of the employer, the same as in the case of vacations, albeit without pay. To my knowledge, it has never been suggested that an employee's periods of vacation should be deducted in determining the length of service. The provision for such leave is thus further implied term of the contract of employment. Accordingly, would make no reduction in the period of notice in this respect. The rule of thumb approach of one month's notice for each year of employment which in this case would yield notice period of six months, is attractive. It is very simple and makes the notice period easy to calculate. Here, however, am struck with the apparent difficulty that the plaintiff has had and will continue to have in finding employment at an equivalent rate of remuneration in the Truro area, as evidenced by her inability to date to find suitable employment despite diligent efforts on her part. This is not to suggest that the plaintiff was overpaid for the work that she was doing. Rather it seems to be due to dirth of employment opportunities in the Truro area or an over abundance of qualified people who are willing to work at very modest rate as illustrated by the case of Ms. Gilbert. She has an honours Bachelor’s degree in Business Administration and was on the Dean's List for four years while attending university, with not insignificant job experience, but was willing to take the position part-time for $9.00 per hour. As to mitigation, in my view, there is absolutely no question that the plaintiff has made continuing and diligent efforts to find employment. am satisfied that she has explored all possibilities for potential employment and has simply not been successful at any rat of pay. She has turned down no positions because she has not had the option of doing so. She simply has not been offered any positions. Considering all of the circumstances, I have concluded that an appropriate and proper period of notice is eight months. The plaintiff, therefore, is entitled to damages calculated on the basis of eight months salary at the rate she was receiving at the time of her last actual employment with the defendant plus vacation pay at six percent per annum. She is also entitled to prejudgment interest on that amount from July 14th, 1997. will hear counsel further as to the rate of prejudgment interest and costs of this proceeding. Donald M. Hall, J.

This was an action for wrongful dismissal. The plaintiff went on maternity leave for six months. During this time the defendant, her employer, hired a temporary replacement on a part-time basis, with fewer hours and less pay than the plaintiff. The defendant offered this position to the plaintiff when her leave had ended. She refused, and alleged constructive dismissal without cause. She admitted that the defendant had asked her prior to her leave if her job could be done in less hours, and that she said it might be possible. The defendant alleged that this should have made it clear to the plaintiff that her position was being changed from full-time to permanent part-time, and constituted reasonable notice. Awarding the plaintiff eight month's notice, that the proposed changes to the job fundamentally altered the employment contract without giving the plaintiff reasonable actual notice. This was therefore a constructive dismissal without cause.

c_1997canlii1639.txt

IN THE SUPREME COURT OF NOVA SCOTIA Citation: Goodman Rosen Inc. v. Sobeys Group, 2002 NSSC 264 Date: 20021106 Docket: SH 188355 Registry: Halifax Between: Goodman Rosen Inc. Plaintiff v. Sobeys Group Inc. and Docket: SH 188340 Registry: Halifax Between: Shoppers Realty Inc., body corporate, Shoppers Drug Mart Inc., body corporate M.C. LeBlanc Drugs Limited, body corporate Plaintiffs v. Sobeys Group Inc. Defendant Judge: The Honourable Justice Gerald R. P. Moir Heard: November 1, 2002 at Halifax Written Release: November 9, 2002 Counsel: Peter Bryson, Q.C. for Shoppers Realty Inc. et al Robert G. Grant, Q.C. for Sobeys Group Inc. Michael S. Ryan, Q.C. and Michael Messenger for Goodman Rosen Inc. Moir, J. (orally): [1] In the late 1970s developer and supplier of premises assembled land and constructed shopping centre at North Sydney. The landlord and Sobeys made twenty-five year lease expiring at the end of 2005 for 22,000 square feet that became supermarket. The lease includes this recital: The lessee has agreed to establish and operate business in the Shopping Centre consistent with the planning of the lessor for the merchandising unity of the Shopping Centre and on the terms and conditions set forth in this Lease ... Consequently, article 4.03 of the lease provides: ... the Lessee shall use the Leased Premises only for the purposes of the business of the retail sale of complete line of food products, as well as general retail merchandising, as carried on by the rest of the majority of its stores. Consistent with this, the landlord promised to restrict competition by other tenants. Article 4.32 of the lease includes: ... the Lessor shall not ... permit any part of the Shopping Centre ... to be used for the purpose of carrying on the business of the sale of food in any form except as hereunder expressly permitted. The article then excepts restaurants, bakeries, delicatessens and stores selling certain kinds of food such as candy. The article goes on to make this provision fundamental term of the lease, breach of which justifies termination by Sobeys, and to provide that the landlord will extract similar covenant from purchasers or mortgagees. [2] The lease was amended in 1996 to allow for an expansion of the mall and of the Sobeys store. The amending agreement provided for the continuation of terms and conditions such as those found in articles 4.03 and 4.32. [3] In March 1980, about year after the Sobeys lease, the landlord leased about 8,000 square feet for twenty years to Imasco and one of its subsidiaries, now Shoppers Drug Mart. This lease has been amended number of times and the term now extends to the end of 2010. Article 35 restricts use of the Shoppers space and, consistent with the Sobeys lease, the tenants covenanted not to use the leased premises for “the sale of groceries, meat, fish, fowl, frozen food, fruit or vegetables, or any combination thereof”. The mall includes department store anchor tenants, and Shoppers Drug Mart also promised not to use the premises as “a department store, junior department store, or variety store, or an order office thereof”. This article contains reference similar to “as carried on by the rest of the majority of its stores” in the Sobeys restriction. In the case of Shoppers Drug Mart, the landlord acknowledged that it is not breach of the covenants restricting use if the operation at the Shoppers Drug Mart space is carried on “in the same manner as the majority of the other Shoppers Drug Mart stores in Nova Scotia”. On the other hand, the landlord covenanted with Imasco and Shoppers Drug Mart against allowing other tenants to operate drug store in any part of their premises. In article 98, the landlord covenanted: ... not to permit ... any other premises or part of premises in the shopping centre ... to be operated as drug store, dispensary and pharmacy, or for the retail sale of items requiring the supervision of registered pharmacist ... An exception was made for department stores: “This paragraph shall not apply to any premises leased to the department store tenants, including those premises initially leased to Zellers [and] Peoples Department Stores.” [4] The Owl Drug Store has operated for many years in the downtown of North Sydney. It is owned through company by pharmacist, Mr. Daniel McKoegh. Lately Mr. McKoegh has found it difficult to hire other pharmacists to work with him and he has had to reduce the store hours. His customers are more elderly now, and they find his location difficult to get into. Further, his business is too small to attract discounts on some wholesale purchases. Mr. McKoegh negotiated with both Sobeys and Shoppers Drug Mart to sell his business and to become an employee. Last August he reached agreement with Sobeys. Sobeys began to renovate its premises in the North Sydney mall to include pharmacy. In the meantime, the present owner of the mall had been placed in receivership and the receiver/manager is now taking steps to sell the mall. [5] In response to the prospect of pharmacy in the Sobeys store, Shoppers Drug Mart placed demands on both Sobeys and the receiver. It demanded Sobeys desist, and it demanded that the receiver take steps including proceedings to give effect to article 98 of the Shoppers Drug Mart lease. The receiver applied, by way of originating notice, for a permanent injunction against Sobeys. Shoppers Drug Mart sued Sobeys and applied for an interim injunction. The Shoppers Drug Mart store in the North Sydney shopping centre is operated by M.C. LeBlanc Drugs Limited as licensee. M.C. LeBlanc is co-plaintiff and the motion for interlocutory relief is joint. [6] Both applications were brought in chambers on November 1st. They were argued together and the evidence, both the affidavits and cross-examination, were treated as going to both proceedings. Sobeys opposes the application for an interim injunction on the grounds that the evidence does not establish grounds for permanent injunction at the required threshold, that the plaintiffs have not established that they will suffer harm not compensable in damages if their claim is right and if interim relief is not given, and that the balance of inconvenience is with Sobeys not Shoppers Drug Mart or its licensee. Sobeys opposes the receiver’s application for a permanent injunction on the ground that “the disputed questions of fact and law [are] beyond the scope of a summary proceeding”, to quote from Mr. Grant’s brief at para. 14. [7] begin with the application of Sobeys and M.C. LeBlanc for an interim injunction. [8] For reasons that will become apparent, think it right not to reach or express conclusion on the question of threshold proof. I will dismiss the application for an interim injunction on the basis that neither Shoppers Drug Mart nor M.C. LeBlanc have established irreparable harm. [9] The plaintiffs rely upon Miller v. Toews, 1990 CanLII 2615 (MB CA), [1991] W.W.R. 604 (MCA) and Canada v. Saskatchewan, 1991 CanLII 3951 (SK CA), [1992] W.W.R. 712 (SCA) for the proposition that the enquiry into irreparable harm is less vigorous or less telling in cases of breach of negative covenant. The logic of these decisions proceeds from the proposition that permanent injunction is the presumed final remedy for breach of negative covenant: Doherty v. Allman (1878), App. Cas. 709 (HL). In Miller, the Manitoba Court of Appeal extended the reasoning in Doherty v. Allman to interim remedies. Its conclusion is at pp. 607 608 of the decision: That is not to say that either the absence of irreparable harm or the presence of much greater inconvenience to the covenantor is totally irrelevant. It is question of emphasis. What it means is that, when negative covenant of this kind is reasonable on its face, the person who gave it will have heavy burden to show that his escape from the bargain will not cause irreparable harm to the covenantee and that the balance of convenience so substantially favours him (the person who gave the covenant) that it would be unjust to restrain his activities until the trial. The decision of the Saskatchewan Court of Appeal in Canada v. Saskatchewan Water Corp. adopted Miller, which had been decided in Manitoba just six months earlier. The Saskatchewan court expressed an analytical approach for interim restraint of alleged breaches of negative covenant: In summary, we find that to apply the appropriate test where an interlocutory injunction is sought on the basis of breach of negative covenant the judge should use the following approach. To satisfy the first test he must undertake preliminary and tentative analysis of the strength of the case put forward by the plaintiff. Is it overwhelming? Is it strong prima facie case? Is it prima facie case? Is it less than prima facie case? Similarly he must make tentative and preliminary assessment of the possible defences which may be offered, all with view to estimating the extent to which those defences reduce the strength of the case initially shown by the plaintiff. At the end of that process the judge must answer the question: Is the plaintiff left with at least prima facie case? If the answer is yes, the first test has been satisfied. As for the second and third tests, the strength of the case that the plaintiff is left with will determine how heavily the balance of convenience and irreparable harm must be weighed in the context of negative covenants. If the plaintiff is left with strong prima facie case approaching plain and uncontested breach of clear covenant, then an injunction ought to be granted without much regard to the balance of convenience and irreparable harm. If the plaintiff is left with only prima facie case then more regard needs to be had to the balance of convenience and irreparable harm. One might question whether the last mentioned standard of proof is so strong as to suggest there is no need for trial. That is, that the more appropriate remedy is summary judgment. [10] The Saskatchewan Court of Appeal did, at para. 32, recognize the opposite approach to interim restraint in cases of alleged breach of negative covenant. The court referred to this passage from para. 672 of the then edition of Sharpe on Injunctions, R.J. Sharpe, Injunctions and Specific Preformance (Toronto: Canada Law Book, 1983): For rather different reasons, neither does the Doherty v. Allman principle apply with the same force to interlocutory injunctions.. There, the court does not have the advantage of full review of the facts and law, and the validity or enforceability of the covenant may not be upheld at trial. The ordinary criteria determining the availability of interlocutory injunctions apply, and plaintiff who sues upon an express negative covenant will not be awarded interlocutory injunctive relief automatically. This passage is consistent with the recognition in American Cyanamid of the difficulty or impossibility of assessing merits on an interlocutory basis: see Gateway Realty Ltd. v. Arton Holdings Ltd (1990), 1990 CanLII 2410 (NS CA), 96 N.S.R. (2d) 82 (C.A.). American Cyanamid provides the analytical framework most often employed by this court on applications for interim injunctions. However, this court has often recognized that the overriding principle is that interim relief must be just and convenient. Thus, there are occasions for assessing the evidence for the cause of action or defence more closely than American Cyanamid might suggest. “The particular circumstances between the parties should always be considered in deciding whether it is just and equitable to grant an interlocutory injunction”: EIT Explosives Technologies International (Canada) Ltd. v. East Coast Explosives Ltd. (1994), 1994 CanLII 4265 (NS SC), 135 N.S.R. (2d) 142 (S.C.) at para 29. “[T]he tendency is for the court to apply test which is likely to produce just result.”: Gateway Realty Ltd. at p. 84. While we allow for departure from the American Cyanamid analytical framework, it is on the basis of the particular circumstances of the dispute rather than the nature of the cause. Thus, the position taken in Manitoba and Saskatchewan on negative covenants is inconsistent with our approach. Our court would not automatically engage in prolonged examination of the merits just because breach of negative covenant is alleged. Injunction is the presumed final remedy for breach of negative covenant, but no such presumption applies in Nova Scotia with respect to interim remedies. [11] The plaintiffs submit that if, pending trial, Sobeys operates pharmacy, then the plaintiffs will suffer permanent loss of good will, the operation may well be made unprofitable and the plaintiff, M.C. LeBlanc, may go out of business. would estimate that case of this kind, advanced by the defendants, could be tried within three years. Shoppers Drug Mart maintains excellent records. Its financial systems are sophisticated. While damages may be difficult to calculate, in the circumstances of this case, the court will be able to assess damages. There is no other reason why the plaintiffs would be unable to prosecute their claim and, if successful, collect on money judgment. Shoppers Drug Mart and M.C. LeBlanc have not established that they will suffer losses not compensable in damages if Sobeys operates pharmacy pending trial. Therefore, will dismiss their application. [12] The receiver applies for final remedies. It applies for a declaratory judgment that Sobeys cannot operate a pharmacy at the North Sydney shopping centre and for a permanent injunction preventing Sobeys from doing so. The objection from Sobeys is that these applications take us into controverted issues of fact requiring a trial. [13] Rule 9.02(b) authorizes applications for the final determination of causes where the proceeding is one “in which there is unlikely to be any substantial dispute of fact”. Where the issues are of law, it serves the purposes expressed in Rule 1.03 that the issues should be determined on affidavit and cross-examination in chambers rather than through trial: Halifax v. Nova Scotia (1996), 1996 CanLII 5423 (NS SC), 149 N.S.R. (2d) 390 (SC) However, by its terms, Rule 9.02 (b) is preclusive of an application where there is likely to be substantial dispute of fact. similar situation pertains to Rule 25 concerning determination of issues preliminary to trial: Binder v. Royal Bank of Canada (1996), 1996 CanLII 5599 (NS CA), 150 N.S.R. (2d) 234 (CA). However, Rule 9.02 (a) also allows for final determination by application where “the sole or principal question at issue is, or is likely to be, question of law, or one of construction of an enactment, will, contract, or other document”. Strictly speaking, the presence of substantial dispute of fact is not preclusive of an application under 9.02 (a). Of course, the judge would have the discretion to order trial under 37.10 (e), and substantial dispute of fact would be strong reason to do so. See City of Toronto and 1291547 Ontario Inc. (2000), 2000 CanLII 22398 (ON SC), 49 O.R. (3d) 709 (OSCJ). This may be difference without distinction where substantial differences can only be resolved by findings of credibility. In Chisholm v. Equisure Financial Network Inc. (1998), SK 7407 (NSSC), Justice Haliburton dismissed an application to interpret and apply contract for such reason. This court has also dismissed applications under Rule 9.02 where the affidavits did not precisely frame the issues or causes of action: Haupt v. Eco-Nova Multi-Media Productions Ltd. (2000), 2000 CanLII 5074 (NS SC), 190 N.S.R. (2d) 274 (SC). The onus is upon Sobeys to show that the application does not meet the requirements of 9.02 (a): Smith v. Canadian Institute of Strategic Studies, [2001] N.S.C.A. 179 and 4C Concerned Citizens v. Cumberland (1997), S408/26 (NSSC). [14] This proceeding is one in which the principal question at issue is of construction of contract. It is squarely within 9.02 (a) and must decide whether the proceeding is likely to involve significant factual disputes, such that should order trial. must approach this question by examining the extent of factual dispute, which, if sufficiently substantial, would necessitate trial but which, if insubstantial, would favour an application. must, in any case, consider procedural fairness, including whether trial or an application would serve the purposes identified in Rule 1.03. [15] The case for the receiver is much simpler than that for Sobeys and M.C. LeBlanc because the landlord is party to the Sobeys lease and is entitled to enforce the lease as party. Unencumbered by the standing issues, the factual complication of the receiver’s case is to be assessed simply in light of the lease terms and the conduct which is alleged to be breach of those terms. [16] There is no factual dispute concerning the legal formation of the Sobeys lease. It was entered into effectively and it is to be enforced according to its terms. There is no suggestion, for example, of mistake in the expression of the terms. There is no dispute as to the lease amendments. There is no dispute that the lease is presently enforceable according to its terms as amended. The essential aspects of the conduct alleged to constitute breach are known and uncontraverted. Sobeys has put forward evidence which, if its interpretation of the lease is correct, may show that it is in compliance. For example, it has put forward evidence concerning the percentage of stores that include pharmacies. This is uncontraverted. [17] The potential, and emphasize the word potential, for controversy would be evidence to be introduced of the circumstances surrounding the formation of the lease. Such evidence would be admissible to prove some of the external context, context always being relevant to the interpretation of words. There is no suggestion of ambiguity. There is the potential for some disagreement over contractual context. [18] The potential for factual dispute over the declaratory judgment is insubstantial. Normally, an injunction requires trial because of the broad facts relevant to the exercise of discretion. See the City of Toronto case. However, injunction is the presumed remedy for breach of negative covenant and nothing has been made to appear which would suggest against an injunction if breach is found. [19] Perhaps such contractual dispute is rare. Perhaps that is why determination of issues of this kind by application rather than trial is rare. However, have concluded that the room for factual dispute is insubstantial, and too insubstantial to take this case out of rule 9.02 (a) or to move my discretion to order trial. [20] As regards procedural fairness, agree that the time frames provided by the rules for the average case are inappropriate here. I accept Mr. Grant’s submissions that his client should have time to make investigations, conduct any necessary discoveries, acquire productions and present any further evidence. [21] have proposition to propose to Sobeys. I am proposing either that you accept an adjournment or that you move for my further consideration. My proposal respecting adjournment would take us, suspect, few months away from now giving Sobeys sufficient opportunity to deal with those issues but commensurate with what you would expect with an application. It would be few months down the road because will not be available until then. I would propose to set a timetable for conduct of discoveries, production by the receiver of any documents the receiver may be able to find, etc. would propose ordering that the affidavits and exhibits in the Shoppers case should become evidence in this case. would, as say, require the receiver to make productions, and would allow the receiver also to make discoveries and to produce further evidence if it chose to do so Or, can give my decision on the interpretation of the Sobeys lease and the application for permanent injunction. assure the parties that have come to no conclusion on either of those at this time.

The defendant had a 25 year lease in a shopping centre which provided that the defendant would only use the premises for the purposes of the business of the retail sale of a complete line of food products, as well as general merchandising, as carried out by the rest of the majority of its stores. The defendant proposed to open a pharmacy on the premises. Another tenant in the shopping centre already operated a drug store and their lease provided that no other tenant would operate a drug store in any part of their premises. The other tenant brought an application for a interim injunction against the defendant. The receiver of the shopping centre also brought an application for a declaration that the defendant could not operate a pharmacy on its premises. The defendant objected to the receiver's application on the basis that it involved controverted issues of fact requiring a trial. Application for interim injunction dismissed on the basis that the applicant had not established irreparable harm; the receiver's application could proceed as an application as the potential for a factual dispute was insubstantial; defendant provided with the option of either accepting an adjournment to allow time for further investigation, the conduct of discoveries and the presenting of any further evidence or moving for the court's further consideration.

9_2002nssc264.txt

QUEEN’S BENCH FOR SASKATCHEWAN Date: 2012 07 11 Citation: 2012 SKQB 275 Docket: Div. No. 37 of 2010 Judicial Centre: Swift Current, Family Law Division BETWEEN: SHERRI LYNN KNUTTILA and JACOB JOHN EVERET KNUTTILA Counsel: A. McBride for the petitioner M. Sheppard for the respondent JUDGMENT WILKINSON J. July 11, 2012 1) The parents of two young boys, nine and 11, require framework for parenting. Joint custody is not opposed. The father, Jake, has had primary residence by interim order but that arrangement has been fraught with difficulty for reasons which will be explored. The two households are within blocks of each other and, in an ideal situation, the children could have transitioned easily between homes. This has not occurred and the mother, Sherri, asks that the boys’ principal residence be varied, and awarded to her. 2) The parties met in 2000 when the mother was working in bar in Eatonia. Jake is currently 41 years of age. Little was said of his background other than that he had been in the military for year (1991‑1992), was honourably discharged, and had several years employment thereafter with local farmer. Shortly after the relationship began he found seasonal work with the R.M. of Eatonia. The couple began living together in 2001 and resided in home they rented from Sherri’s mother. 3) Jake and Sherri were married on July 30, 2005 and separated in June or July, 2009. There are two children of the marriage, Jacob Ron Allan Knuttila, born May 25, 2001, now 11, and Johnathan Dwight Knuttila (“Johnny”), born May 14, 2003, now nine. 4) The petitioner, Sherri, is 34 years of age and has four older children of other relationships. They are Damion, 17; Tyler, 16; Seth, 14; and Chelsea, 12. Damion and Tyler’s father lives in Alberta. Seth’s father lives across the street, but is moving to Alberta. Chelsea’s father lives in the Kindersley area. She has amicable parenting relationships with the three individuals who fathered those children. 5) Tyler is the one child in the older sibling group who has encountered difficulties. He has ADHD and difficulty following rules. He has been in trouble at school. He tried living with his biological father, and his maternal grandfather, but both these placements broke down. He may suffer from depression. He has had brushes with the law for alcohol infractions and was involved in break and enter at local store where he stole alcohol. He is on probation. 6) According to the mother, the father is nice person, but lazy and unmotivated. He was dictatorial towards the older children and when she left him list of daily chores to accomplish, he delegated the work to her children. He was preferential in his treatment of Jacob and Johnny, his biological children. 7) She claims he had spotty work history. He was not employed when he moved in with her. After stint doing seasonal work at the R.M. of Eatonia, he moved to seed grain company. When he left that employment, she had to find him work in the maintenance department of the Kindersley Hotel after he had been without work for six months. At the hotel, he worked the night shift from 11:00 p.m to 5:00 a.m., sometimes 6:00 a.m. 8) Jonathan was born on May 14, 2003. In 2001and 2002, the mother worked in tavern at minimum wage, then found work in care home in 2003 or 2004. She started as housekeeper, but achieved the position of head cook, which required her to work long hours from 6:00 in the morning to 6:00 at night. She out‑earned the husband although his hourly wage was higher. She handled all the family finances. She did the housework and the majority of the driving for the children’s activities. 9) All the older children were involved in intramural sports and, in addition, the boys played hockey and/or football. Chelsea was involved in figure skating. All Sherri’s older children did moderately well to well in their academic studies. 10) Sherri says that if the respondent helped at all, it was only with his two biological children. Jake disputes this, and says he coached or assisted all the boys in various sports, played road hockey with them, assisted in the driving, and attended many games. As seasonal worker he enjoyed the summers off (June to mid‑August). 11) The mother gave up and found someone more to her liking in 2009. She asked the respondent to leave the family home. He refused. 12) At or around the time of the marital breakdown, concern was raised with the Ministry of Social Services that the mother was drinking or doing drugs. The source of the complaint is not known. Sherri suspects it was Jake. Jake denies it, although admitting in an affidavit that he went to the RCMP with concerns about Sherri’s parenting. The mother agreed to supply toxin screens and blood and urine samples and entered into s. agreement with the Ministry of Social Services, (between July 27, 2009 and August 31, 2009). Sherri moved to nearby community (La Porte) for six months and stayed with friend. Jacob and Johnny remained in the family home with their father. 13) Sherri said it was false complaint. She has back trouble from work, for which she was taking anti‑inflammatory medication for brief time, but quickly discontinued after it provided no relief. 14) The screens came back negative. No further action was taken by the Ministry. 15) Sometime in November, 2009, Jacob called his mother, crying, and asked her to come and pick them up, complaining that their dad was staying out late and leaving them on their own. Jake’s response was that he was working late on “renovations” at work. Ultimately, it was agreed that Jacob and Johnny would live with Sherri in La Porte while Jake completed the renovations. The boys came to live with their mother from November 18 to December 12, 2009. 16) On November 26, 2009, Jake was in serious motor vehicle accident on his way to work. female occupant in the vehicle was killed. Jake broke his leg and fractured both ankles but was not hospitalized. For short time, he moved in with his elderly mother, resident of Eatonia, who assisted in his care. Two of Jake’s sisters lived in proximity to the mother his older sister, Amy, who runs daycare, and his younger sister Patsy, single mother of two. They were both actively involved in the care of the Jacob and Johnny. 17) Throughout this time frame, friend, Laurie Weaver, had been staying in the family home (and apparently had resided with the family prior to separation as well). 18) During this time frame, Jake was in another motor vehicle accident, this time with the boys in the car. The air bag went off, striking Jacob who was in the passenger seat. Jacob was bleeding in the head and suffered concussion. He was rushed to the hospital and missed several days of school. 19) On or about December 12, 2009, Jake took the boys for sleepover and refused to return them. His explanation was that the children were unhappy living with Sherri, and had expressed fear of their stepbrother, Tyler, saying he had held knife to their throats. He withheld the children from school for week, claiming this was done on the advice child welfare professionals and counsellors, because he was concerned Sherri would snatch the children from school. 20) Sherri’s mother complained that Jake had not paid the rent on the family home and asked that he be evicted. Sherri gave two weeks notice to Jake and another occupant of the home, their mutual friend Mr. Weaver, to vacate by the end of December, 2009. 21) The home was in considerable disrepair and there was mould on the walls. Jake claims he instructed Laurie Weaver to clean up. Sherri and her son Tyler did two weeks of renovations to make it habitable. Sherri moved back into the home with her four older children. She had to pay arrears for water bills that Jake had failed to pay. She paid the arrears of rent ($800) to her mother. 22) Jake moved into mobile home in Eatonia, but was evicted after six months for non‑payment of rent. There was another individual living there as boarder, an individual named Bryce, who was presumably sharing the cost of living. Nothing else was provided about his personal details or background. The Sheriff’s department served Writ of Possession on behalf of the landlord demanding he vacate the premises by July 14. The Sheriff’s department attended on the 14th and found he was in the process of moving out, but had left the premises in dirty and untidy state. 23) After being evicted from the mobile home, he found one-bedroom home in Eatonia. The boys slept on the couch, although later the sleeping accommodations were rearranged so that Jacob would sleep in back room addition, Johnny in the bedroom, and Jake on the couch. 24) Jake returned to work in March, 2010. During his recovery from the accident, he received income replacement benefits of $800 biweekly. 25) Sherri launched petition in May, 2010 seeking custody of Jacob and Johnny, and child support. 26) An interim application was heard in July, 2010. The Court determined that the status quo since December, 2009 had been that the children resided primarily with the respondent father and should remain so. The Court directed pre‑trial settlement conference to be held as soon as possible, ordered interim joint custody, and awarded generous access to the mother, including every Wednesday overnight, alternate weekends (extending to Monday on long weekends), and shared school vacations. The Court directed that the mother would be the caregiver of first resort whenever the father was unable to look after them. Medical and educational information was to be shared. 27) Jake continued to ensure the boys received counselling. Sherri says she was not invited to participate. Jake says that at or around the time of separation, the whole family (other than Damion) had counselling session, and that Chelsea was participating in counselling after that, but Sherri refused to let her continue on once the Court gave him primary residence of Jacob and Johnny. 28) Sherri rarely received her weekly Wednesday access. She complained, and the parties agreed to change the Wednesday access to alternate Sundays from noon to 7:00 p.m. 29) Sherri was not utilized as the caregiver of first resort. When Jake was unable to care for the children they were left with his mother, or his sisters. Jacob and Johnathan were having difficulty in school. Johnathan has ADHD, but his teacher was concerned that his medication was not been administered. Both children needed extra support at home. 30) Jake began working late doing renovations at the Kindersley Hotel bar. Sherri recalled one occasion the boys were with her and Jake called to say he would be late picking them up because he had to change light bulb. Four or five hours later he showed up at her home at 11:00 p.m. at night and insisted on taking the boys home with him in their pajamas. There was “kerfuffle”. Jake’s version is that he called when he was five minutes from Eatonia and she was okay with him picking them up, but then she changed her mind. When he was trying to remove the boys, Jacob wanted to go with his dad and ran to his grandmother’s to call the RCMP. 31) pre‑trial conference was held on December 2, 2010. The parties agreed that until their issues were resolved, Sherri would continue to receive the Child Tax credit for all the children, and pay $300 month of that to Jake. Sherri did so. At the time, the Child Tax Credit and child support paid by the fathers of her older children were her only source of income. Jake does not dispute that was the arrangement. Sherri was concerned he used the money to buy liquor. She saw Jake in tavern shortly after she gave him cheque. He says it was only one drink with friend. 32) The only other outcome of the pre‑trial conference was an agreement to pursue mediation. Mediation never occurred, purportedly because Jake was unable to afford it. There is no reason why this should be. He was employed full time, and receiving $300 month from Sherri. Furthermore, from January to March 2011, Jake had additional income. He took on extra weekend work providing security in the Kindersley Hotel Bar. He had an arrangement with his employer to leave the children in room at the hotel while he worked. The hotel provided caregiver. Jake testified he was making significant overtime so significant, in fact, that the new general manager of the hotel ended the arrangement in March because he did not like the amount that was being paid. 33) conclude Jake had no intention of pursuing mediation. In February and March, 2011 the parents completed the Parent Education Program. It seems that parent education did not inspire Jake to adopt spirit of compromise. 34) Not long after, an issue arose over the Child Tax benefits. Although Sherri had paid Jake the $300 month as agreed at pre‑trial, review by the Child Tax benefit authorities reached the conclusion that Sherri was not entitled to the Child Tax benefits and had been overpaid. Sherri testified the amount of the overpayment she is being asked to repay is about $19,000. Her ongoing benefits have been reduced from $1,600 month to $500 month. It was severe blow to her family’s finances, as the Child Tax benefits and employment supplement were the only source of income Sherri had, apart from child support relating to the older children. 35) In May 2011, she learned (via letter from Jakes’ legal counsel) that Jake’s accountant had inadvertently checked the box claiming the two children as resident with him. The indication to her was that this could be corrected by the two of them signing form consenting to their arrangement as made at pre‑trial and Jake would arrange to do so. Sherri thus continued to provide the $300 payment to Jake. She was also advised that Jake was making arrangements to pay his share of the deposit to the mediator so that mediation could proceed. For whatever reason, none of these assurances were carried through to completion, and have grave doubts Jake ever intended to do so. 36) The most recent information available (June 20, 2012 Child Tax Benefit Notice to Jake Knuttila) indicates that Jake is not eligible for the child tax benefits as he does not meet citizenship requirements. Jake is, again, completely bewildered by this advice and can provide no explanation. The letter, on its face, seems to indicate he is not Canadian citizen. 37) The parties acknowledge there is little the Court can do with this confusing situation. All that can be said is that from the Court’s perspective, and in respect of the Child Tax benefits for 2009, 2010 and 2011, Jake has received everything he was entitled to receive under the agreement reached at pre‑trial conference. Sherri has met her obligations under that agreement by payment of $300 month. 38) In June, 2011, Jake and the boys moved into his mother’s three-bedroom home, which was under renovation. Jake says he was given the opportunity to rent‑to‑own. The arrangement was that his rent would go towards renovations to the home. The purchase price will be determined through discussions with his sisters. It is beneficial arrangement for him financially. 39) The pre‑trial settlement conference reconvened on October 6, 2011. Jake was self‑represented, having failed to contact or instruct his lawyer who withdrew shortly beforehand for that reason. No settlement was reached and the matter was set for trial in February, 2012. divorce judgment was granted, uncontested. 40) On November 27, 2011, Jake was involved in another serious motor vehicle accident. He broke his leg, foot and both wrists. He was hospitalized until January 20, 2012. The boys lived with Sherri for roughly month. 41) Jake requested an adjournment of the trial. To accommodate an earlier date, the matter was moved to Saskatoon to be heard on June 25 and 26, 2012. What he did not disclose until the course of this trial is that arising from that accident he was charged with impaired driving causing bodily harm, dangerous driving causing bodily harm, and driving over “.08”. He was ticketed for driving without licence and driving without due care and attention. 42) After numerous adjournments, his matters are set for plea on July 3, 2012. He intends to plead “not guilty” to all charges. He expects it will be six months or more before he can return to work. He had appealed the issue of income replacement benefits and was recently notified he will receive those benefits from SGI based on 90% of his income ($30,213 being the income utilized). Accordingly, he will receive $836.28 every two weeks from December 4, 2011. He received lump sum payment of $8,041.86 retroactive to December 4, 2011. Prior to that, he had financial assistance from his co‑workers (through fund‑raiser) and social assistance benefits for period of one week. 43) Late in 2011, Jake’s mother moved into assisted living, and her home continues to be under renovation, and occupied by Jake and the two boys. Despite his physical injuries, he is assisting in the renovations, with additional help from friends. There are no boarders at the present time. The legal framework 44) The “best interests” test governs the determination on the issue of primary residence. Although this is Divorce Act, R.S.C. 1985, c. (2nd Supp.) application, s. of The Children’s Law Act, 1997, S.S. 1997, c. C-8.2 comprehensively addresses the relevant considerations: In making, varying or rescinding an order for custody of child, the court shall: (a) have regard only for the best interests of the child and for that purpose shall take into account: (i) the quality of the relationship that the child has with the person who is seeking custody and any other person who may have close connection with the child; (ii) the personality, character and emotional needs of the child; (iii) the physical, psychological, social and economic needs of the child; (iv) the capacity of the person who is seeking custody to act as legal custodian of the child; (v) the home environment proposed to be provided for the child; (vi) the plans that the person who is seeking custody has for the future of the child; and (vii) the wishes of the child, to the extent the court considers appropriate, having regard to the age and maturity of the child. 45) Willingness to facilitate access to the other parent is also an important consideration, one given prominence by explicit recognition under s. 16(10) of the Divorce Act: 16(1) In making an order under this section [for custody or access], the court shall give effect to the principle that child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact. [Italics added] 46) The Court is also required to consider the impact upon the child of any change in custodial arrangements: see Haider v. Malach (1999), 1999 CanLII 12363 (SK CA), 177 Sask. R. 285, 48 R.F.L. (4th) 314 (C.A.). 47) Another important consideration, as noted in H.S. v. C.S., 2006 SKCA 45 (CanLII), 27 R.F.L. (6th) 265, leave to appeal to S.C.C. refused, [2006] S.C.C.A. No. 253 (QL), is the relationship of the child to the “psychological” parent, the bond between them, and the importance of maintaining stability in that relationship. Parental attributes and credibility 48) Bewilderment characterized much of Jake’s testimony. He claims he did not understand the “first caregiver” requirements in the interim order. He claims he tells the children to see their mother, and was unaware they were not doing so. He denies being in arrears of rent to Sherri’s mother, or falling behind in utility payments with the Town, despite clear evidence to the contrary. The eviction from the mobile home was not his fault, it was because the rent was too high. 49) He is unable to explain how he came to be indebted to Revenue Canada. He blames his incomplete financial disclosure on not knowing how to complete financial statement despite having done one previously. He resiled from an agreement to pursue mediation. He blames some of the problems with missed medication on the child, saying that Johnny must forget to take his pills at times. do know whether his bewilderment is feigned or innate. All know is that the father presents as irresponsible, incapable and, on occasion, deceitful. There are red flags. 50) Jake is negligent in many parenting aspects, offset to some extent by his efforts to communicate with teachers, an area where Sherri suffers in comparison. Still, have considerable doubts about the father’s lifestyle and these are not allayed at all by his recent disclosure of pending criminal charges. Three motor vehicle accidents are disturbing pattern. 51) Of overwhelming concern is his attitude toward fostering access to the mother. He appears indifferent, bordering on disrespectful. He has been deceptive in his dealings, agreeing to mediation but not following through, and agreeing to resolve the Child Tax benefits but failing to do so. He has been less than candid about his lifestyle issues and his pending criminal charges. 52) The father has bounced from home to home. The boys receive minimal direction or discipline. The boys do not bathe daily, sometimes only two times week. Jake’s attitude to homework is offhand. In his opinion, Jacob rarely has homework, and is content to read comics or little books to Johnny. He indicated Johnny only has spelling tests on Friday, and the odd bit of math homework. Jake’s idea of addressing Jacob’s shyness issues are to send him to the store to buy milk and bread, or to have him go and pick up the mail. He says this will make him learn to interact with people. It sounds as dismal on paper as it did when he uttered it in Court. He has no concerns with Jacob’s weight or diet. He says he will grow out of it. 53) There are few rules. Jake is content to let the boys make choices without supervision or follow‑up. He has abdicated a significant chunk of his care‑giving role to his mother and sisters. His unfortunate injuries in the past two years have made him non‑ambulatory and heavily dependent on others. 54) Even when he is working, the boys spend their pre‑school hours at his sister Amy’s daycare. There, they are “helpers” with the younger children. There about four or five youngsters in daycare in the mornings. In total, Amy has upwards of 14 children in her care, all on differing schedules. It is not an atmosphere conducive to learning, or providing the outside educational support the children require. 55) Jacob and Johnny spend considerable time after school with their paternal aunts, Amy and Patsy Knuttila. Before the paternal grandmother moved into assisted living, the boys spent considerable time with her. Although both sisters seem kind‑hearted people, and quite willing to assist their brother, Patsy is openly hostile towards Sherri. Patsy testified there were frequent noisy drinking parties at Sherri’s house, lots of shouting and domestic arguments. This is not borne out by other evidence. 56) Despite serial relationships that suggest some turmoil in Sherri’s history, she was clear and forthright in her testimony. She presents as capable, organized parent who possesses the attention to detail that is considerably lacking on the father’s side. Money is not driving motivation, she says, and child support issues were not primary concern. She has been content with modest amounts from the other fathers and support has never been matter of contention with them. 57) What she wants is her family intact, and structure and stability for her two youngest. The boys have become increasingly distant and disrespectful in the care of their father. She mentioned time when she told Johnny to make his bed and he threatened to call lawyer on her. She believes the father has instilled these attitudes. 58) As compared to Jake, she was more willing to concede her faults, but some tendency to minimize was nonetheless present. Tyler’s adolescent issues seem more concerning than the mother is prepared to acknowledge. The marital breakdown was significant contributor to the children’s difficulties and undoubtedly continues to play role in the children’s attitude toward their mother. She moved rather quickly into another relationship. Children are not easily accepting of such changes. 59) Sherri could not bring herself to admit that she and Damion had written something nice about Jake for their wedding. She suggested, rather oddly, that Damion never wrote letter at all, and that the letter she ostensibly wrote might have been tampered with. She did recall referring to Jake as her “knight in shining armour”. There are sour notes to her personality. 60) As Sherri’s new partner, David has assumed parental role (although he is careful not to encroach, and the children call him “Dave”). It is appropriate to consider his attributes as well. He moved in with Sherri in December, 2011, but spent considerable time in the household before that. He seems pleasant, outgoing individual who has established rapport with the older children. He takes the boys hunting and fishing. Sherri admits that with the cuts in her Child Tax benefits, their family would not have survived without David’s help. David encouraged the children to take on fair share of the household tasks, noticing that Sherri was doing all the work. 61) David says Sherri sometimes get depressed over the situation with Jacob and Johnny and will cry. He acknowledges they drink socially, but do not go overboard. Usually it is couple of beer. He said Sherri does not drink vodka at all (in response to Patsy’s allegation). The older boys do drink, being teenagers, but not at home. They occasionally have friends over, but not too many. There have been no complaints by neighbours. David acknowledges he has had occasional arguments with Tyler. They discipline the children by grounding, or by removing privileges. 62) Tyler sleeps in the living room area of the basement. There are, in addition, three bedrooms in the basement one for Damion, one for Seth and one that Jacob and Johnny share when they are there. David’s relationship with Jacob and Johnny is not as well developed because they are not in their home as much. They rarely bring homework with them on weekends, but Johnny is more inclined to do so than Jacob. David has helped the boys with homework on occasion. David went to the most recent parent‑teacher interviews for all the children, and plans to participate regularly next year. Children’s personalities and emotional needs 63) Jacob is described as big boy for his age, and extremely shy. He has difficulty with public speaking, although this is reducing as he gets older. He is closed off emotionally. His mother has concerns about his diet and his weight. She feels he could be more active. He does not like to discuss his problems, and when he does, he will become emotional and cry. He used to be close to his mother, but has become more reserved in their relationship. He likes to bike and play football. 64) Johnathan is affectionately described by all concerned as outspoken and outgoing. He likes to be the center of attention. He is loud, boisterous, and fond of making siren noises. He is adept at taking things apart and reassembling them. He likes to have his own way and will have temper tantrums and use inappropriate language when denied. At younger age, he was very close to his mother and physically affectionate, liking to snuggle and exchange hugs, but she notes this has changed significantly since the marital breakdown. 65) Johnathan is on Concerta for Attention Deficit Disorder. He has been heard, on occasion, to make statements indicating he will kill himself, or wait for truck to run him over. This is concern to the mother, and she wants to have him assessed again. 66) Both children have academic challenges and have participated in modified, assisted learning programs. Johnathan was held back in kindergarten. They struggle particularly with reading and math. The mother’s complaints are that the father does not cooperate in sharing school information, provides no academic support at home, and that the father’s house lacks rules and structure. 67) There was significant absenteeism from school while in the care of the father in 2009 and 2010 (41 days for Jacob, 31.5 for Jonathan). Some, but not all, of Jacob’s missed days are explained by adenoid surgery, surgery to install tubes in his ears, and the concussion in the car accident. Both boys also missed some school for counselling sessions, and the full week when Jake decided to withhold them from school for fear that Sherri would come and take them. 68) The mother has never been provided copies of the individualized Student Plan for each child. By the same token, she has never asked for them. 69) The father has been inconsistent with Johnathan’s medications and as times has failed to administer them. His sister, who cared for the boys prior to school, confirmed that the father forgot to renew the prescription on one occasion, and Jonathan went two or three days without his prescribed medication. According to one teacher’s comments, Jonathan was off his medication three times during the school year, for month or more. Jake claims it was only the one occasion that was his fault, when he forgot to renew the prescription. He suggests that perhaps Johnny forgets to take them in the morning. 70) Johnny’s “little books”, which he is allowed to take home from school went missing at one point. The parents blame each other. 71) While Johnny was living with Sherri late in 2011 (after Jake’s November, 2011 motor vehicle accident), she made point of working with him on his spelling tests. They made game of it. He got 100% in five consecutive tests. Johnny was very proud of his achievements. She denies she was trying to make herself look good for the forthcoming trial. She notes that during the month in 2009 when the boys were briefly in her primary care, there were no adverse comments from the teachers in their school journals. 72) In his father’s care, the results are more uneven. Some spelling tests are good, some are inadequate. The number of spelling words in each unit were cut back during the school year, once the teacher realized that Johnny became easily overwhelmed when there were too many at time. Some of his poor results are before the units were cut back. Johnny is slowly progressing. There is no evidence either the father or mother are avid readers. The father’s reading of exhibits in Court was illustrative of the point. If the parents cannot model the behaviour, the children are unlikely to approach it with enthusiasm. 73) Jake has been the primary contact for the school. He attends all the parent‑teacher interviews. Sherri has been uninvolved, for the most part, until very recently. 74) The mother is joint custodial parent. She has, by interim order, unimpeded access to school and medical information. She explained her lack of involvement as unwillingness to attend parent‑teacher interviews in the presence of the father, despite there being no concerns about violence or domestic abuse. She asked that the school set up separate interviews for her. For the better part of three years nothing was done. The school was unable to accommodate her request until fairly recently. Accordingly, she has been “left out of the loop” as she terms it. She acknowledged she should have taken more initiative or simply attended the interviews with Jake, notwithstanding the discomfort. 75) She says she does read with the boys in her home but says her time with the children is insufficient to do anything meaningful in terms of their academic progress. 76) Johnny’s teacher was expecting Sherri to attend with Jake and discuss his 2012/2013 program plan. Sherri planned to attend but fell sick. She did not notify Johnny’s teacher she was not going to be there. am sure that was annoying to everyone concerned. Sherri says it was her understanding that the teacher would call her afterward with the results of the discussion, if she was unable to attend. Sherri seems to have the notion the teachers should be available at her convenience. Jake has been the primary contact with the school. 77) am of the view the mother could have attempted to do far more if she was truly concerned on the academic front. Her preference was to take hands‑off approach and focus her attention on criticizing the father’s efforts. Notwithstanding the criticisms, there is evidence the children have made some progress, albeit not in leaps and bounds. 78) Amy Knuttila has tried to help the boys with their homework from time to time. Within her busy work day, am sure that assistance is necessarily limited. She is not sure how she came to be named as an outside learning support in the school’s Student Support Plan. She confirms that Johnny is an “outdoor kid,” and that Jacob is hard to interest in reading, other than comic books. 79) The reality is the school is the main provider of the boys’ academic instruction, and the parents have been relatively passive in terms of supplying educational support at home. It is to be expected in circumstances where one parent is restricted to weekend access and the other has been alternately recuperating from serious injuries or spending long hours away from home whether it be for work or other unacknowledged reason. 80) Johnny’s teacher confirms his attitude is much improved and he is trying harder, although he remains below grade level. She stated there were few individual days where she was sure Johnny was off his medications, and those days were not good. She was not the teacher who made the comment that he had been off for months at time. There were also days that he was absent from school, although they were individual not consecutive. She confirmed that Johnny requires great deal of educational support in the home. 81) The most recent report cards in June, 2012 show the trend continues slow but steady improvement with emphasis on the need for additional support at home. Daily routines/home life 82) Both parents have the necessary “brick and mortar” to accommodate the children. Jake notes that at his house the boys have their own rooms, their own TV’s, DVD’s, games and electronic gadgets. Perhaps this is why mediation was deemed unaffordable. When he is working, he is home by 4:00 or 5:00 p.m. and they eat at 6:00 p.m. He says the boys are home by 9:00 p.m. perhaps little later on weekends. He acknowledged they spend significant time in the company of their aunts, before and after school, and on other regular occasions. Jake says he plays football and road hockey with the boys, and they all like to play X‑box. 83) The mother says the boys are often riding around at night on their bicycles, completely unsupervised. She is concerned that the father has moved numerous times since separation, and the fact that has been evicted in the past. She feels the present house which is undergoing renovation, is still in considerable disrepair. 84) The mother concentrates on fun activities during their limited family time with Jacob and Johnny. They go camping and fishing and building bows and arrows. She claims to have structure and routine in her home. She has only moved twice since separation, once to La Porte, then the move back to the family home. Her family eats sit‑down meal at 5:00 p.m. At her house, bedtime is 8:00 p.m. for Jacob and Johnny. They share room in the basement. The boys are permitted to watch movie until 9:30 p.m. 85) Jake says that due to the medication, Johnny has no appetite at lunch, although he eats good breakfast. By 8:00 a.m. he can be very hungry, and eat large amount. In his view, Jake should be fed when he is hungry, not at designated times. Other significant relationships 86) By all accounts, the boys have close and affectionate relationship with Seth and Chelsea, the two younger children in the other sibling group. These are important relationships to maintain. Both Seth and Chelsea appear to be caring older siblings who have taken their own initiative to keep in contact with Jacob and Johnny. They are to be commended. They have set far better example than the adults. 87) Jacob and Johnny have close ties to their paternal aunts, Amy and Patsy, and their paternal grandmother. These, too are very meaningful relationships and warrant respect. Sherri got along well with the paternal grandmother. Their relationship does not seem to have been strained by the events of the last few years. Amy and Sherri’s relationship appears aloof, but courteous. 88) Patsy and Sherri are different matter. Patsy testified that Chelsea and Seth used to visit her home regularly, but Sherri banned them from doing so after the interim Court order was made. She became emotional when relaying this. do not know if this has any basis in fact. Sherri did not comment. The animosity, for whatever reason, is unfortunate. Despite Jacob’s shyness, Patsy is someone he relates too, and she could very well be instrumental in bringing him out of his shell. Patsy and Sherri need to mend fences for Jacob’s sake. Children’s preferences 89) Jake wanted his 11-year-old son to testify at trial. denied that application. It was made at the outset of trial before had any evidence as to the child’s reasoning capacity, or his level of maturity or judgment. Having the benefit of all the evidence, remained satisfied that the application was properly dismissed. Jacob would not have borne up well under the stress. He lacks confidence and has had difficulty in the past speaking out in class. He struggles to verbalize his thoughts and emotions. To expect him to bear witness in open Court on the matter of his parent’s dispute, even if only to articulate his preferences, demonstrates remarkable lack of judgment on the father’s part. 90) The evidence that do have suggests that Jacob’s wish is to remain with his father. He has told his mother as much, and has asked her to stop fighting for him. He has made comments in similar vein to his paternal aunts. do not doubt his strong attachment to his father. Jake, for his own selfish reasons, has been the prominent parental figure in Jacob’s life for the three years since separation. 91) Jacob’s shyness and insecurity has unfortunately been exploited by the father. It is from the father that he derives his sense of safety and feelings of self‑worth. In their mother’s care, Jacob and Johnny are two of six children. They do not feel the same level of importance that they derive from their father’s jealous and monopolizing attention. Jake is unwilling to let go, even when he is not available to the children himself. Hence the inordinate involvement of his mother and sisters, in preference to encouraging access to the mother. 92) There are many indications the children’s relationship with their mother has not been fostered in any meaningful way. There are indications they may still have unresolved issues from the marital break‑up and may be consciously or unconsciously blaming their mother. They have had no meaningful opportunity to adjust to her new relationship with David. 93) According to Amy Knutilla, Jacob is always aware when Court proceeding is coming up and asks her questions about it. Jake is, without doubt, responsible for that awareness. 94) Amy Knuttila testified that Johnny’s wish was to live with both his parents (together), but if that was not possible, then he wanted to remain primarily with his dad and Jacob. There was time when he told Amy he would rather wait for car to hit him than go to his mother’s house. 95) Patsy Knuttila testified that she and Jacob are close. Jacob has told her that Sherri and Dave have had fights, and that Sherri and the older boys have fights as well. He has also told her that his mother drinks all day, vodka being mentioned in particular. Jacob says he wants to live with Dad because that where it feels like home. Johnny has told her people are mean to him at mum’s house. She acknowledges that she took it upon herself to question Jacob where he wanted to live. Broaching child in that manner is inappropriate. Patsy is intensely loyal to her brother. Her contact with Sherri is non‑existent. She is not an impartial observer. 96) Jake has let the children’s preferences dominate his parenting decisions. This abdicates the parental role. At the time of separation he said “we, (meaning “he”) decided the children could choose where they wanted to live”. The children were then eight and six years old. Again, this was highly inappropriate. Capable parents encourage their children to understand the concept of sharing. Conclusions 97) am left with the impression do not have the full picture of what is going in either home. The evidence was, at times, perplexing. 98) There are indications the children fear or dislike Tyler, and whether their fears are baseless or not, if it is an issue from their perspective it needs to be addressed. It should not simply be dismissed out of hand, which was Sherri’s attitude. She simply does not believe Tyler would bully the boys, and says he is not like that. 99) Tyler has returned to the mother’s home after his unsuccessful efforts to live with his father and grandfather. He sleeps in the basement where Jacob and Johnny are. It was mentioned that Johnny has asked for night‑light in the mother’s basement because he is afraid of the dark. Sherri did not comment on these issues, and offered no solutions. 100) Sherri could have benefited from some joint counselling with the boys after separation. think she was rather dismissive of the impact of the marital breakdown on the two youngest. The impression left was that it was good for her, and that was what mattered. She has had multiple relationships, and seems to move on relatively easily. She made comment that she thought the boys’ counselling went on little long. From her side, see no willingness to accept shared responsibility for some of the difficulties the boys have encountered since their parents separated. 101) see two conflicted children, who were not adequately prepared for the aftermath of their parent’s divorce. At the present time, it is the father who provides them with sense of security and continuity. He is viewed as the protector. Unfortunately, that sense of security is an illusion. Jake’s lifestyle is mired in chaos and unpredictability. The late nights, the handing‑off of parental responsibility to family members, the financial woes, the frequent moves, the three car accidents in three years, the pending criminal charges all speak to deteriorating situation and to father without firm grip on his life. This spells uncertainty for the boys. Jake seems desperate to hang on to the children at all costs, whether it is in their long‑term best interests or not. 102) To his credit, he recognizes that the parents’ inability to communicate is one of their greatest stumbling blocks, but he has not shown any will or initiative to improve the situation. He was in the driver’s seat and must accept the disproportionate share of blame. 103) There are handicaps and deficiencies on both sides. If the parents were capable of cooperating, the weaknesses in each home could have been offset and balanced. None of the problems that have been raised were insurmountable. The parents simply preferred to pick at the faults of the other and look to Court process for an answer, instead of seeking help and finding practical solutions. 104) The parents live in very close proximity, as do the aunts. No transportation of the children is required. If all the adults had made an effort to get along, the children would have followed suit. One of the puzzling aspects of the situation is that there has been no apparent difficulty when it comes to sharing the boys’ summer holiday time. They go back and forth without issue. Why should it be so fundamentally different during the school term? 105) Although Sherri does not escape criticism, Jake must bear the greater degree of responsibility. He was the one who rejected mediation. The three years it took for this matter to get to trial were his opportunity to demonstrate openness in terms of facilitating access, and fostering relationship between the children and their mother. He has fallen far short of the mark. Unfortunately, in that time he has carefully constructed situation where the boys see him as the devoted parent, the fun parent, the parent with few rules or expectations. He has delayed and obfuscated in the hope of gaining the upper hand. 106) The difficulty lies in how the children would adapt to change in their parenting arrangement. Jacob will not accept any changes willingly or easily he is fully aligned with his father. Johnny will perhaps adapt more readily, but having his own way with his dad for three years will also make any transition difficult. It is their clinging dependence on their father, one he has unhealthily cultivated, that prevents the boys from moving forward to balanced and respectful relationship with both parents. 107) Jake has given little thought to the fact that he may be preoccupied in coming months with defending his criminal charges, or to the repercussions for the boys should he be found guilty. There needs to be another fully involved parent in the event that Jake’s problems continue to spiral out of control. 108) There is no ideal solution, but giving the mother primary residence will predictably bring its own set of problems unless the boys are psychologically prepared, and fully accepting of the change. Nothing is gained by creating boomerang children, and in this situation it would be all too easy to run to the father, or the aunts, every time the boys perceive problem with their mother’s household. 109) It is my decision that the parents must use this summer to prepare themselves for a shared parenting relationship, one where the boys will alternate week to week in each home once school starts. The parents must participate in at least four mediation sessions with a family mediator to learn an acceptable way of communicating on children’s issues. Repairing their parenting problems is more important than repairing houses, or whatever other plans were made for the summer. Particular attention must be paid to the boys’ perceived problems with the mother’s home. Sherri and Jake must formulate plan to present the new parenting arrangement to the boys as joint arrangement that will be fully respected by both parents. 110) If the parents cannot agree on mediator by July 31, 2012, they are to provide two names each and the Court will make the necessary designation. 111) The costs of mediation will be borne by Jake. Order 112) The parents will have joint custody of Jacob Ron Allan Knuttila, born May 25, 2001 and Johnathan Dwight Knuttila, born May 14, 2003. The parents shall participate in a minimum of four sessions with a family mediator. The selection of the mediator is to be agreed upon by July 15, 2012 otherwise designation will be made by the Court. The costs of mediation will be paid by the respondent. 113) Commencing September 1, 2012, there will be a shared parenting arrangement whereby the boys will alternate week to week between homes. Exchanges will occur every Friday at 6:00 p.m. Within the regular rotation, the following exceptions will apply: (1) The children will be with the respondent on Father’s Day, and with the petitioner on Mother’s Day (from 9:00 a.m. to 6:00 p.m. on each date). (2) For Christmas Day, the parent who does not have the children according to the regular schedule, will have access from noon until 6:00 p.m. (3) The Easter vacation and February break will be divided in half, and shared equally. (4) If the parents are able to agree to more acceptable schedule in mediation they are free to do so, but must apply back to the Court to vary the current order. 114) The parents indicated they were dividing the summer of 2012 equally, and did not anticipate any difficulties on that score. In the interests of completeness, there will be an order that the summer holidays are to be shared equally between the parents. 115) With respect to child support on shared parenting arrangement, have utilized the Childview program [ChildView, Version 2012.1.0, by Evan K. Chan Barry R. Gardiner]. The father’s income is $21,736 (non‑taxable). The mother’s is $7,688 (employment supplement/social assistance). The father will pay child support of $324 a month for two shared children commencing July 1, 2012, and continuing on the 1st day of each month thereafter, until further order, or until the children cease to be children within the meaning of the Divorce Act. The parties will exchange income tax returns by May 31st in each year. Each will notify the other within 30 days in the event of any change in their employment status or sources of income. 116) There will be no order as to costs. J. Y. Wilkinson

The parties agree that joint custody is appropriate, but the petitioner mother asked that the principal residence of the two boys be varied and awarded to her. The parties live blocks from each other, but the transition between homes has not gone well. The children have been primarily residing with the father. The father has been in three motor vehicle accidents within three years and is facing criminal charges as a result of the most recent one. The father works long hours as a maintenance man. The mother has four other children from previous relationships. The children of the marriage indicate that they have some problems with one step brother, who lives in their mother's home. The children's academic performance is not strong and the parents have made little effort to assist their children in pursuing an education. One child has been non- compliant with his ADHD medication while in the father's care. While the mother has a more stable residence, both parties have bounced from home to home. The father has tended to abdicate parenting responsibilities to his relatives and has not used the mother as a caregiver of first resort. The mother's relationship with her children has not been fostered in a meaningful way. HELD: While there is no ideal solution, the Court ordered a shared parenting arrangement where the children would spend one week in each home when school started in the fall. The parents were required to participate in mediation sessions which were to be paid for by the father. Joint custody was ordered. The father was ordered to pay child support in accordance with the Guidelines.

6_2012skqb275.txt

J. C.A. No. 131106 NOVA SCOTIA COURT OF APPEAL Chipman, Matthews and Flinn, JJ.A. BETWEEN: FUTURE INNS CANADA INC. and LABOUR RELATIONS BOARD (NOVA SCOTIA); THE ATTORNEY GENERAL OF NOVA SCOTIA representing HER MAJESTY THE QUEEN in the right of the Province of Nova Scotia; DIRECTOR OF PUBLIC PROSECUTIONS; HOTEL EMPLOYEES RESTAURANT EMPLOYEES INTERNATIONAL UNION, LOCAL 662; JEAN DEARMAN; GLORIA RAFUSE; CINDY MILLIGAN; LINDA RAFUSE; and PATRICIA HUBLEY Respondents Ian Blue, Q.C. and Blair H. Mitchell for the Appellant Louise Walsh Poirier for the Respondent, Labour Relations Board Gordon Forsyth for the Respondents Union and Jean Dearman, Gloria Rafuse, Cindy Milligan, Linda Rafuse and Patricia Hubley Appeal Heard: February 5, 1997 Judgment Delivered: February 26, 1997 THE COURT: The appeal is allowed with costs; the order of the Chambers judge is set aside and the matter is remitted to the Board for a rehearing as per reasons for judgment of Chipman, J.A.; Matthews and Flinn, JJ.A., concurring. CHIPMAN, J.A.: This is an appeal by Future Inns Canada Inc. from a judgment in the Supreme Court dismissing certiorari applications to quash three orders of the Labour Relations Board (Nova Scotia) ordering Future Inns to reinstate the individual respondents, to pay them compensation, and refusing to reconsider the first two orders. Other respondents are Hotel Employees Restaurant Employees International Union, Local 662, (the Union); the Labour Relations Board (Nova Scotia), (the Board); The Attorney General of Nova Scotia and the Director of Public Prosecutions. The last two named respondents did not appear at the appeal. Future Inns operates 120 room hotel in Dartmouth, which has been in business since September, 1989. It offers no frills accommodation. The hotel manager is Dorothy Lemire. Reporting to her are the head housekeeper, the assistant housekeeper, desk clerks and the maintenance man. There are about 20 housekeepers. Ms. Lemire is responsible for the discipline of the employees working under her. Housekeepers start work at 8:00 a.m. and leave after cleaning the guest rooms for which they are responsible. This is usually between 2:30 p.m. and 4:00 p.m. On Saturdays their work commences at 9:00 a.m. and they leave when they finish. Each day nine housekeepers are scheduled, and each is expected to clean about 12 to 15 rooms. Ms. Lemire normally works from 8:00 a.m. to 3:00 p.m., but is often called upon to return to the hotel to attend to various situations such as improperly cleaned rooms. Ms. Lemire testified before the Board about the need for quality housekeeping in the hotel. She often checked rooms personally. If rooms were not properly cleaned, the housekeeper would be sent back, and in the case of repeated deficiencies, reprimands and ultimately dismissals followed. On December 2, 1994, Ms. Lemire and the head housekeeper met with the housekeepers to emphasize the importance of proper cleaning of the rooms. On the following Monday, Ms. Lemire found that room cleaned by the respondent, Gloria Rafuse, was not properly done. She suspended Ms. Rafuse for one week. She also posted notice warning that if rooms were not cleaned to the satisfaction of the manager and head housekeeper, one week suspension could follow. In February, 1995, Ms. Lemire was concerned about the quality of the housekeeping and its effect upon the hotel's business and reputation. On Friday, February 10, 1995, Ms. Lemire had left work at 3:00 p.m. but returned to the hotel about 4:30 p.m. While she was at the front desk, guest called to complain about no towels. Ms. Lemire took the towels to the guest and decided to check some other rooms. In her room check she found pair of underpants under the bed in room that Jean Dearman had cleaned. She also found bloody kleenex, dirty kleenex, candy wrappers and pieces of wool in rooms cleaned by Gloria Rafuse. She thereupon determined to fire Dearman and Gloria Rafuse. She advised her employers of this intention. She made arrangements with the hotel's accountant to make up the final pay for Dearman and Gloria Rafuse. She picked up the documents at the accountant's office and drove to Dearman's home in Dartmouth. She arrived at 6:00 p.m. She advised Dearman that she was being dismissed "due to neglect of duties". She went to Gloria Rafuse's home in Windsor Junction, but she was not at home. On the following day, Saturday, February 11th, Ms. Lemire went to the hotel to deliver notice to Gloria Rafuse. They met in the housekeepers' room. Ms. Lemire told her she was dismissed. When asked why, she said it was because of "lack of duties". She advised Gloria Rafuse that she had personally checked her room. Gloria Rafuse then cleaned out her locker. She discussed the matter with the respondents Linda Rafuse, Patricia Hubley and Cindy Milligan. The four of them then walked upstairs, put their keys in the front desk, and walked out together. Ms. Lemire asked Linda Rafuse if she was working that day and was told that none of them was. Ms. Lemire said that she was then left with 54 rooms to clean on Saturday and no housekeepers to clean them. Ms. Lemire decided that Milligan, Hubley and Linda Rafuse had quit, and did not want them to return. On the following Monday, Linda Rafuse, Hubley and Milligan arrived at the hotel and asked Lemire for their jobs back. Lemire refused, saying that anybody leaving her with 54 rooms did not deserve to have job. In the meantime other events occurred in late January and early February, 1995. The respondent Dearman had become concerned about Gloria Rafuse's one week suspension in December and the suspension of another housekeeper for missing glass and an unlocked window in room. Ms. Dearman's husband belonged to union. He contacted Paul Burgwin, representative of the respondent Union. Paul Burgwin asked Ms. Dearman to get the housekeepers together for meeting. In January, 1995, Dearman discussed forming union with them. These discussions took place in an outside smoking area and at nearby Tim Hortons and took place over period of two weeks. meeting was scheduled for Ms. Dearman's home on the evening of Wednesday, February 8, 1995, to which all the individual respondents were invited. further meeting was arranged for Sunday, February 12th, to sign up union membership cards and collect dues. On February 13, 1995, the Union, on behalf of the respondents Dearman, Gloria Rafuse and Cindy Milligan made complaint of unfair labour practice to the Board on Form 16 under the Act against Future Inns. It alleged: Nature of Complaint: The individual complainant are all members of the Complainant Union. The Union has been organizing employees of the Respondent in connection with an application for certification pursuant to the Trade Union Act of Nova Scotia which was made on February 13, 1995. The individual complainants were dismissed from their employment on February 10 and 11, 1995, because of their support for the Union. The Respondent is refusing to employ the complainants because they are members of trade union and have participated in the activities of trade union. The Respondent is attempting to intimidate its employees to compel them to refrain from being member of trade union or participating in the activities of trade union. On February 15, 1995, the Union, on behalf of the respondents Linda Rafuse and Patricia Hubley, filed complaint against Future Inns on Form 16 in the same terms. The complaints were heard by panel of the Board on April 26, June 27 and 28, 1995. The Union was represented by counsel. Future Inns was represented by Charles Henman, lay person. The Board heard the testimony of Ms. Dearman, Linda Rafuse, Gloria Rafuse, Paul Burgwin and Ms. Lemire. Following the hearing, the Board issued Order LRB 4367 on July 19th which dismissed the respondent Union's application for certification. The order then disposed of the complaints of unfair labour practices as follows: AND the Board having been satisfied that the acts of Unfair Labour Practice were committed pursuant to Section 53 of the Trade Union Act; ... AND the Board does further order the Respondent to reinstate Jean Dearman, Gloria Rafuse, Cindy Milligan, Linda Rafuse and Patricia Hubley to their former positions and to pay to these individuals all compensation earned as if they had not been terminated by the Respondent. AND the Board retains jurisdiction in this matter should the parties be unable to reach agreement on the issue of compensation entitled to be received by these five employees. On October 16, 1995, the Board issued an order reciting Order LRB 4267, that the Board had been reconvened for hearing on the matter of compensation, was satisfied that none of the five former employees had been reinstated or compensated, and that Linda Rafuse, Gloria Rafuse and Patricia Hubley still sought reinstatement and compensation while Jean Dearman and Cindy Milligan no longer sought reinstatement, but compensation only. The order then required Future Inns to make compensation as follows: Linda Rafuse 9,465.92 Gloria Rafuse 7,222.45 Patricia Hubley 5,081.63 Jean Dearman 3,537.09 Cindy Milligan 4,326.63 TOTAL: $29,633.72 The Board further made calculations of the pay periods for Linda Rafuse, Gloria Rafuse and Patricia Hubley in the event reinstatement did not occur on October 16, 1995. By letter dated October 26, 1995, the interim Chief Executive Officer of the Board denied Future Inns leave to bring an application for reconsideration of Order LRB 4267. Future Inns has not reinstated any of the employees. As consequence of its failure to abide by the order of the Board, the Minister of Labour has given written consent to the prosecution of Future Inns under s. 86 of the Act for failure to comply with an order made under s. 57 thereof. Future Inns brought applications to the Supreme Court for orders in the nature of certiorari to quash the orders of the Board. The applications were heard on June 3, and 19, 1996, at which time evidence was adduced before the Chambers judge on behalf of Future Inns and the respondents. By decision dated August 9, 1996, the Chambers judge dismissed the applications of Future Inns and concluded: (a) The decisions of the Board were protected by the privative clause in paragraph 19(1) of the Act. They could only be reviewed on the standard of patent unreasonableness of the Board's decisions. (b) It was not possible to determine from the order of the Board what subsection of s. 53 of the Trade Union Act the Board found was violated, giving rise to an unfair labour practice. On review of the transcript and the evidence, the Chambers judge concluded that there was some evidence on which the Board could find an unfair labour practice. The privative clause in the Act precluded the court from weighing the evidence and coming to its own conclusion on this issue. As there was evidence upon which the Board could find that Future Inns committed an unfair labour practice, the decision of the Board was not patently unreasonable. (c) The Board had not breached the rules of natural justice in failing to advise Future Inns of its right to counsel even though there was no doubt that the Chair of the Board knew that Mr. Henman was "out of his depth". (d) Evidence relating to comment made by counsel for the respondent Union and to smiles or laughter on the part of some members of the Board did not raise reasonable apprehension of bias. (e) While it may have been preferable if the Board had given reasons for its decision, it was not obligated to do so, and thus did not act in procedurally unfair manner. Future Inns appeals to this Court, raising three principal issues procedural fairness, reasonable apprehension of bias and failure to give reasons. As have concluded that the Board's order must be quashed because it failed to give reasons, it is not necessary to deal with the other two issues. In recent years, with the development of multitude of tribunals with varying degrees of protection from judicial review, it has become fashionable for such tribunals to give reasons for their decisions. In many jurisdictions, the giving of reasons is now required by statute. In Nova Scotia, the Law Reform Commission has recommended that such legislation be enacted. See Final Report, Reform of the Administrative Justice System in Nova Scotia, January, 1997, pp. 55-57. The Chambers judge acknowledged that reasons would have been desirable. Nevertheless, we start this inquiry with the recognition that the Board is not bound by legislation to provide reasons for its decision and that in the absence of such requirement reasons are not generally mandated. We must canvass the authorities to see the extent to which we have the power at common law to quash the orders because no reasons were given. In Re R.D.R. Construction Limited v. Rent Review Commission (1983), 1982 CanLII 3265 (NS CA), 55 N.S.R. (2d) 71, this Court heard an appeal from the Rent Review Commission established under the Rent Review Act, 1975 S.N.S., c. 56. The appeal was, by s. 27 of the Act, confined to question law or jurisdiction. The appellant landlord requested rent increase from the Residential Tenancy Officer who dealt with the application at hearing and issued decision fixing approved rents. The Officer's decision was appealed to the Commission which held hearing. The Commission refused to provide certain information respecting the process followed by the officer in fixing the rents. In deciding that there was failure of natural justice on the part of the Commission going to jurisdiction in that it did not make the information available to the appellant, Cooper, J.A., on behalf of this Court, said at p. 81: In my opinion fair play in this case requires that the record of the proceedings before the Officer should have been made available to the appellant. This is particularly important where, as here, the Officer's decision does not contain reasons but only recital of what was done and the result. In particular her reasons for rejecting the financial information and the conclusions drawn from it by the appellant were not given. How then could the appellant adequately present its case before the Commission or decide what additional evidence it should adduce? At p. 83 Cooper, J.A. said: It has been commonly accepted that in the absence of statutory requirement person in the position of the Officer is not bound to give reasons for his or her decision. in Re Glendenning Motorways Inc. and Royal Transportation Ltd. et al. (1975), 1975 CanLII 1116 (MB CA), 59 D.L.R. (3d) 89 (Man. C.A.), Hall, J.A., said at p. 92, referring to decision of the Highway Traffic and Motor Transport Board of Manitoba: On the question of whether the Board is required to give written reasons for its decision approving the application, again, there is no statutory requirement for this to be done. Whether it should be is, of course, matter for the Legislature. Unless the court is prepared on some basis to compel the Board to give written reasons, cannot see any useful purpose in repeatedly expressing desire that the Board furnish written reasons for its decision. But in Norton Tool Co. Ltd. v. Tewson, [1973] W.L.R. 45 (National Industrial Relations Court), Sir John Donaldson for the court had this to say at p. 49: Our jurisdiction is limited to consideration of questions of law. Accordingly, it is not sufficient for an appellant to satisfy this court that, within the range of discretion conferred upon the tribunal, it might or even would have reached different conclusion. If an appellant is to succeed, he must satisfy this court that the tribunal has erred in principle. But it is corollary of the discretion conferred upon the tribunals that it is their duty to set out their reasoning in sufficient detail to show the principles upon which they have proceeded. similar obligation lies upon this court, when sitting as court of first instance from which appeal lies to the Court of Appeal on questions of law alone. Were it otherwise, the parties would in effect be deprived of their right of appeal on questions of law. No great elaboration is required and the task should not constitute burden... In deSmith's, Judicial Review of Administrative Action (4th Ed.) at p. 148, after the author had stated "There is no general rule of English law that reasons must be given for administrative (or indeed judicial) decisions" he said at p. 149: In certain other situations there may be an implied duty to state the reasons or grounds for decision (Michael Akehurst, 'Statements of Reasons for Judicial and Administrative Decisions' (1970) 33 M.L.R. 1954). person prejudicially affected by decision must be adequately notified of the case he has to meet in order to exercise any right he may have to make further representations (see Chap. 4, post) or effectively to exercise right of appeal (Norton Tool Co. Ltd. v. Tewson, [1973] W.L.R. 45, 49, and cases cited in note 11, ante)... It seems to me that in this case there was such an implied duty for the reasons stated in the passage from deSmith, which have just quoted. (emphasis added) In Re Yarmouth Housing Ltd. v. Rent Review Commission (1982), 1982 CanLII 2887 (NS CA), 54 N.S.R. (2d) 28, this Court heard an appeal from the Rent Review Commission which confirmed the decision of tenancy officer denying requested rent increase. An appeal to this Court pursuant to the Rent Review Act was allowed on the ground that the Commission erred in law the fixing the approved rent. After holding that the matter should be remitted to the Commission, Cooper, J.A., on behalf of the Court, said at p. 41: add also that in my opinion the Commission is required to give reasons for its decisions. This question was considered by this court in R.D.R. Construction Limited v. Rent Review Commission, ., with respect to decisions of residential tenancy officers. It was there stated that there was an implied duty on the part of such officers to give reasons for their decisions and reference was made to Norton Tool Co. Ltd. v. Tewson, [1973] W.L.R. 45, and deSmith's, Judicial Review of Administrative Action (4th Ed.) at p. 148. In my view the same reasoning applied to decisions of the Commission. It should not confine itself merely to recital of the information before it and its conclusions, but it has duty to set out why it has rejected the information and evidence produced before it by the applicant. The applicant is entitled to know on what grounds his appeal has been rejected and where, in the opinion of the Commission, he has gone wrong. (emphasis added) recent case dealing with failure to give reasons is Re Williams v. Minister of Citizenship and Immigration (1996), 1996 CanLII 4093 (FC), 139 D.L.R. (4th) 658 (F.C.T.D.). There, Reed, J. of the Federal Court, Trial Division, quashed decision of delegate of the Minister of Citizenship and Immigration determining that the applicant should be deported. The applicant was permanent resident of Canada who had lived in the country for some 21 years. He had been convicted of serious drug related offences and the Minister's delegate determined, under s. 70(5) of the Immigration Act, that he was danger to the public and should be deported. The delegate gave no reasons for his decision. On an application for judicial review, it was urged that the decision was inconsistent with s. of the Charter and s. 2(e) of the Canadian Bill of Rights. The headnote in the report summarizes the court's reasoning: The concept of danger to the public is not so vague that it provides insufficient guidance for informed legal debate. Nevertheless, the principles of fundamental justice, natural justice and fairness require that the permanent resident be given the reasons for the determination that he was danger to the public. Reasons are required because the consequences of the decision are substantial, and the decision-making process gives no assurance that the ultimate decision-maker has considered the permanent resident's submissions. In addition, without reasons, it is not clear what criteria in determining danger to the public are being applied, and whether they are consistent and lawful. At p. 670, Reed, J. referred to the text by deSmith, Woolf and Jowell, Judicial Review of Administrative Action, 5th ed. (London: Sweet Maxwell, 1995) containing discussion of the extent to which the principles of natural justice require decision maker to give reasons. There is such requirement where statute expressly or impliedly so requires, and in limited situations where reasons are important to assess whether an action for judicial review can be maintained Reed, J. said at p. 670: This last is said to exist when the issue for the individual is of such importance that he cannot be left to receive an unreasoned decision, as if "the distant oracle has spoken and that is that" (R. v. Secretary of State for the Home Department, ex p. Doody, [1994] A.C. 531 (H.L.) at 565). Reed, J. referred to R. v. Civil Service Appeal Board, ex p. Cunningham, [1991] All E.R. 310 (C.A.) where Lord Donaldson M.R. stated at p. 319: ...the Board should have given outline reasons sufficient to show to what they were directing their mind and thereby indirectly showing not whether their decision was right or wrong, which is matter solely for them, but whether their decision was lawful. Any other conclusion would reduce the board to the status of free-wheeling palm tree. Reed, J. then referred to R. v. Secretary of State for the Home Department, ex p. Doody, supra, where Lord Mustill said at p. 564: It is not, as understand it, questioned that the decision of the Home Secretary on the penal element is susceptible to judicial review. To mount an effective attack on the decision, given no more material than the facts of the offence and the length of the penal element, the prisoner has virtually no means of ascertaining whether this is an instance where the decision-making process has gone astray. think it is important that there should be an effective means of detecting the kind of error which would entitle the court to intervene, and in practice regard it as necessary for this purpose that the reasoning of the Home Secretary should be disclosed. At p. 672, Reed, J. reaches the following conclusions on the basis of material considered by her: The absence of jurisprudence with respect to the requirement of written reasons in Canada may exist because, in most cases, where section interests (or even lesser interests) are involved, there are statutory requirements that written reasons be given. The giving of reasons serves several purposes. First and perhaps most importantly, it gives some assurance to the individual concerned that his or her submissions have been considered (the absence of reasons can create disturbing impression of injustice). Secondly, it provides meaningful basis on which an assessment can be made as to whether or not to appeal the decision or to seek judicial review when that is the appropriate remedy. Thirdly, from the perspective of reviewing Court, indeed, in the case of judicial review, it is very difficult, often impossible, to know on what basis decision was made if reasons are not given. Reasons are not as important when full right of appeal exists. In such circumstances the reviewing Court can consider all the evidence and determine whether in its view errors exist with respect to the conclusions drawn. In the case of judicial review, however, reviewing Court starts with presumption that deference must be accorded to the decision-maker. person is entitled to some assurance that all factors have been considered, and to fair opportunity to exercise his or her right of judicial review with respect to decisions made inadequately. Reasons allow both the person concerned and Court, on judicial review, to know whether the appropriate legal test has been applied by the decision­maker. (emphasis added) Reed, J. has referred to three specific purposes served by the giving of such reasons. would add another which would be obvious to any judge. When one sits down to prepare the reasons to support conclusion tentatively reached, the articulation of the reasons tests the validity of the conclusion. At times, the writer is compelled to change the result. The preparation of supporting reasons is the best self-assessment decision maker can make of his or her decision. The greater the protection from judicial review accorded to Tribunal, the greater may be the need for reasons. In Williams, supra, Reed, J. said at p. 673: The circumstances of this case are such that the principles of fundamental justice, natural justice and fairness are not met unless the applicant is given reasons for the decision that has been made. This follows from number of considerations. In the first place the consequences for the individual are substantial. Secondly, the decision making-process (through three levels of immigration officials) gives no assurance that the ultimate decision-maker, in fact, considers the applicant's submissions directly. Thirdly, reading the Guidelines that have been issued, and the evidence of the applicant's offences that formed the basis for the decision, it is not clear what reasoning led to this applicant being found to be present or future danger to the public. Fourthly, in the absence of even brief reasons, reviewing Court on judicial review cannot determine whether the decision-makers (the delegates of the Minister) are applying consistent and lawful criteria in making decisions that an individual is danger to the public in Canada. The respondents refer to R. v. Burns (1994), 1994 CanLII 127 (SCC), 165 N. R. 374 (S.C.C.). There, the British Columbia Court of Appeal set aside convictions for indecent assault and sexual assault and ordered new trial because the reasons of the trial judge did not enable the court to determine whether the judge had properly directed himself to all the evidence and the legal questions bearing on the issues. The trial judge's reasons were indeed brief, consisting of statement that he had accepted the complainant's evidence as to the alleged incidents and that based thereon he was satisfied beyond reasonable doubt that the accused was guilty. In reversing the British Columbia Court of Appeal, the Supreme Court of Canada, in addressing the duty of trial judge to give reasons said at p. 382: Failure to indicate expressly that all relevant considerations have been taken into account in arriving at verdict is not basis for allowing an appeal under s. 686(1)(a). This accords with the general rule that trial judge does not err merely because he or she does not give reasons for deciding one way or the other on problematic points: see R. v. Smith (D.A.), 1990 CanLII 99 (SCC), [1990] S.C.R. 991; 111 N.R. 144; 109 A.R. 160, affing. 1989 ABCA 187 (CanLII), 95 A.R. 304 (C.A.), and R. v. MacDonald, 1976 CanLII 140 (SCC), [1977] S.C.R. 665; N.R. 271. The judge is not required to demonstrate that he or she knows the law and has considered all aspects of the evidence. Nor is the judge required to explain why he or she does not entertain reasonable doubt as to the accused's guilt. Failure to do any of these things does not, in itself, permit court of appeal to set aside the verdict. This rule makes good sense. To require trial judges charged with heavy caseloads of criminal cases to deal in their reasons with every aspect of every case would slow the system of justice immeasurably. Trial judges are presumed to know the law with which they work day in and day out. If they state their conclusions in brief compass, and these conclusions are supported by the evidence, the verdict should not be overturned merely because they fail to discuss collateral aspects of the case. Burns, supra, is not authority for the proposition that courts, let alone other tribunals, can render significant decisions without reasons in all cases. take this decision to mean that minimum requirement is that judge provide statement of conclusions in brief compass so that the court can then see if these are supported by the evidence. My view of Burns, supra, is confirmed upon reading of the short judgment of the Supreme Court of Canada delivered by lacobucci, J. in R. v. Barrett, 1995 CanLII 129 (SCC), [1995] S.C.R. 752: We all agree that this appeal is governed by the principles recently discussed by our Court in R. v. Burns, 1994 CanLII 127 (SCC), [1994] S.C.R. 656, and related cases. The decision in Burns was not available to the Ontario Court of Appeal when it rendered its judgment. While it is clearly preferable to give reasons and although there may be some cases where reasons may be necessary, by itself, the absence of reasons of trial judge cannot be ground for appellate review when the finding is otherwise supportable on the evidence or where the basis of the finding is apparent from the circumstances. The issue is the reasonableness of the finding not an absence or insufficiency of reasons. In this case, the basis for the ruling of the trial judge on the voir dire is clear. The only issue was credibility. The trial judge's ruling demonstrated that he did not accept the evidence of the accused. In these circumstances, the failure of the trial judge to state the basis of his decision on the voir dire did not occasion an error of law or miscarriage of justice. We also find no error in law in the charge to the jury. (emphasis added) It is to be observed that lacobucci, J. was careful to note that there may be some cases where reasons may be necessary. In Barret supra, it is clear that the court was satisfied that the ruling demonstrated that the trial judge did not accept the evidence of the accused. The only issue was credibility. The scope of appellate review in criminal case is wider than the standard of review of decision of tribunal protected by privative clause such as that contained in s. 19(1) of the Act. court can examine the evidence and reweigh it to some extent to determine whether the verdict was reasonable. Section 19(1) of the Act provides that decision or order of the Board in any proceeding "is final and conclusive and not open to question or review". It was common ground among the parties to this appeal that before decision so protected can be questioned, the appellant must demonstrate that it was patently unreasonable decision. In C.A.I.M.A.W. v. Paccar of Canada Ltd., 1989 CanLII 49 (SCC), [1989] S.C.R. 983 Laforest, J. said at pp. 1003-4: Where, as here, an administrative tribunal is protected by privative clause, this Court has indicated that it will only review the decision of the Board if that Board has either made an error in interpreting the provisions conferring jurisdiction on it, or has exceeded its jurisdiction by making patently unreasonable error of law in the performance of its function: see CUPE, Local 963 v. N.B. Liquor Corp., 1979 CanLII 23 (SCC), [1979] S.C.R. 227. The tribunal has the right to make errors, even serious ones, provided it does not act in manner "so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review". The test for review is "severe test"; see Blanchard v. Control Data Canada Ltd., 1984 CanLII 27 (SCC), [1984] S.C.R. 476, at p. 493. This restricted scope of review requires the courts to adopt posture of deference to the decisions of the tribunal. Curial deference is more than just fiction courts resort to when they are in agreement with the decisions of the tribunal. Mere disagreement with the result arrived at by the tribunal does not make that result "patently unreasonable". The courts must be careful to focus their inquiry on the existence of rational basis for the decision of the tribunal, and not on their agreement with it. The emphasis should be not so much on what result the tribunal has arrived at, but on how the tribunal arrived at that result. Privative clauses, such as those contained in ss. 31 to 34 of the Code, are permissible exercises of the legislative authority and, to the extent that they restrict the scope of curial review within their constitutional jurisdiction, the Court should respect that limitation and defer to the Board. (emphasis added) In National Corn Growers Association et al. v. Canadian Import Tribunal (1990), 1990 CanLII 49 (SCC), 114 N.R. 81(S.C.C.), the Supreme Court of Canada affirmed decision of the Federal Court dismissing an application for judicial review claiming that the Tribunal decision was patently unreasonable. In his closing remarks, Gonthier, J. said at p. 122: would add one final observation. In the course of these reasons, have at times dealt in some detail with the manner in which the Tribunal arrived at its conclusion. Unlike my colleague, Wilson, J., do not think that the Tribunal's references to the provisions of the GATT, as well as all other aspects of the reasoning by which it arrived at its interpretation of SIMA, are totally irrelevant to determination of an application for judicial review. With respect, do not understand how conclusion can be reached, as to the reasonableness of tribunal's interpretation of its enabling statute without considering the reasoning underlying it, and would be surprised if that were the effect of this court's decision in C.U.P.E., supra (emphasis added) Clearly, reasons are not always required. In Khaliq-Kareemi v. Health Services and Insurance Commission (N.S.) (1989), 89 N.S.R. (2d) 388, this Court allowed an appeal from decision in Supreme Court reversing an order of the Commission finding that psychiatrist had fraudulently submitted claims and habitually claimed for services not medically required. No reasons were given by the Commission. This Court held that they were not necessary because the charges were abundantly clear. The only issue was whether the evidence established the allegations. Jones, J.A. said at p. 401: The charges before the Commissioner were abundantly clear. The only issue was whether the evidence established those allegations. The Commission obviously accepted the evidence supporting the allegations and rejected the evidence of the respondent. Apart from the issue of credibility reasons would have added little or nothing. In my view reasons were not required in the circumstances. I am satisfied that courts can and should require written reasons from a Tribunal wherever there are substantial issues to be resolved. How can the court determine the existence of rational basis for the decision of the Tribunal if it does not know how the Tribunal arrived at the result? If the determination of the reasonableness of a tribunal\'s decision can only be made by considering "the reasoning underlying it" and these reasons are not obvious from a review of the issues and the record, written reasons are necessary. Failure of tribunal to do so in such cases makes its decision patently unreasonable decision which will be set aside. The disappointed litigant and the reviewing court must know the process followed by Tribunal in order to see, in the case of the litigant, if review should be sought, and in the case of the court whether interference with the decision is warranted. Counsel for the Board emphasizes that no case has been found where court has held that failure to give reasons makes tribunal's decision patently unreasonable. No case on point is needed. The principle is clear. Patent unreasonableness can assume many forms. am prepared to reach the result here on the application of fundamental principles. As well, the cases have reviewed support the conclusion that in such cases there is an implied duty to give reasons. Breach of this duty is breach of the rules of natural justice. will review the issues before the Board and consider the evidence heard by it in order to judge whether it can be said that its decision without reasons is, in the circumstances, patently unreasonable, and whether there was an implied duty to give reasons. The complaints break down into the following allegations: (a) the complainants were dismissed on February 10 and 11 because of their support for the Union; (b) Future Inns is refusing to employ the complainants because they are members of trade union; (c) Future Inns is refusing to employ the complainants because they have participated in the activities of trade union; (d) Future Inns is attempting to intimidate its employees to compel them to refrain from being member of trade union or participate in the activities of trade union. The Board simply stated that it was satisfied that the acts of unfair labour practice by Future Inns were committed pursuant to s. 53 of the Act. That section details number of unfair labour practices: 53 (1) No employer and no person acting on behalf of an employer shall (a) participate in or interfere with the formation or administration of trade union or the representation of employees by trade union. Prohibited activities of an employer are listed in s. 53(3) of the Act. 53 (3) No employer and no person acting on behalf of an employer shall (a) refuse to employ or to continue to employ any person or otherwise discriminate against any person in regard to employment or any term or condition of employment, because the person (i) is or was member of trade union, (ii) has been expelled or suspended from membership in trade union for reason other than failure to pay the periodic dues, assessments and initiation fees uniformly required to be paid by all members of the trade union as condition of acquiring or retaining membership in the trade union, (iii) has testified or otherwise participated or may testify or otherwise participate in proceeding under this Act, (iv) has made or is about to make disclosure that he may be required to make in proceeding under this Act, (v) has made an application or filed complaint under this Act, (vi) has participated in strike that is not prohibited by this Act or exercised any right under this Act; It will be observed that the complaints appear to allege violations of both ss. 53(1)(a) and 53(3)(a) with respect to five different complainants, as well as an attempt to intimidate its employees generally which appears to allege violation of s. 53(1)(a). In assessing the complaints, the Board was required to take into account s. 56(3) of the Act with respect to complaints falling within s. 53(3)(a): 56 (3) Where the complainant establishes that it is reasonable to believe that there may have been failure by an employer or any person acting on behalf of an employer to comply with clause (a) of subsection (3) of Section 53, the burden of proving there is no failure shall be upon the employer or the person acting on behalf of the employer. There was no evidence before the Board that prior to February 14, 1995, either the Union, the individual respondents or anyone else informed Ms. Lemire or any other representative of the appellant that the individual respondents were trying to organize union at the hotel. Ms. Lemire testified at the hearing that she was unaware of any discussions about forming union until February 14, 1995, when she was so advised by representative of the Board. By then, the termination of the five individual respondents had taken place. There was evidence that the dismissals of Ms. Dearman and Gloria Rafuse were carried out in manner different from the way in which such matters were normally handled. Three of the individual respondents, Gloria Rafuse, Linda Rafuse and Dearman testified that they suspected they had been fired because they were trying to form union. However, they were unable to point to any evidence that Ms. Lemire or anybody else acting on behalf of Future Inns knew that union was in the process of being formed. Ms. Lemire denied such knowledge. The employer's knowledge of the attempted formation of the Union is critical to establishing the case against the employer. The Chambers judge addressed this key issue: Mrs. Lemire was the sole management employee called by Future Inns at the hearing. There were discrepancies between the information filed by Mrs. Lemire with the unemployment insurance people with respect to these terminations and her evidence at the hearing as to why Gloria Rafuse and Jean Dearman were fired. She could not explain these discrepancies. Jean Dearman was fired at home. No prior employees had been fired at their homes. Jean Dearman and Gloria Rafuse were fired with haste. The rooms they cleaned on Friday were stated by Mrs. Lemire to be unacceptable. Jean Dearman was not to work again until the following Monday. Gloria Rafuse was to work the next day, Saturday. Mrs. Lemire went to their homes Friday night to fire them. She found Jean Dearman at home and fired her on Friday evening. She did not find Gloria Rafuse at home, and fired her the following day when she reported to work. There was evidence from the complainants that there was grapevine in the hotel, whereby Mrs. Lemire would be aware of most things going on at the hotel. There was also evidence that Fred George, who worked as maintenance man at the hotel, was related to Mrs. Lemire. There was lack of any substantial warnings to Mrs. Dearman that her work was not satisfactory, although this was not the case with respect to Gloria Rafuse, who had been suspended for one week for poor work two months earlier. Jean Dearman and Gloria Rafuse were fired on Friday night and Saturday morning respectively, in the time between the first organizing meeting on Wednesday night and the second proposed organizing meeting on Sunday night. All of this provides evidence from which the Board could infer knowledge of the unionizing effort and anti-union animus. Accordingly, find there was evidence before the Board on which it could find that Future Inns committed an unfair labour practice and therefore, the decision of the Board was not patently unreasonable. (emphasis added) The Chambers judge directs these comments to the dismissals of Ms. Dearman and Gloria Rafuse only. The conclusion respecting these firings is that evidence to support reasonable inference that Future Inns engaged in prohibited practices arise from: (a) Ms. Lemire attempted to fire two of the employees at home. (b) There was evidence about grapevine at the hotel. (c) maintenance man at the hotel was related to Ms. Lemire. (d) That there was lack of substantial warnings to Dearman that her work was not satisfactory. have examined the record before the Board and in the absence of any reasons from the Board giving insight into its thinking, it appears to me that what the Chambers judge characterizes as "evidence from which the Board could infer knowledge of the Union effort and anti-union animus" is anything but substantial. General statements such as Gloria Rafuse's comment, "Well, mean everybody talks" are not sufficient foundation upon which one can draw reasonable inferences. Neither Gloria Rafuse or any of the other witnesses on behalf of the claimants could point to any piece of information about the Union's activities having reached management's ears. Ms.Lemire's testimony that she had no knowledge of the Union's activities is clear as is her testimony that she fired the employees for unsatisfactory performance. She had fired other employees in the past for such things as the use of bad language to guests and poor housecleaning. Lemire testified that she had spoken to Dearman about poor work "many, many times". Ms. Dearman conceded that she had been spoken to on previous occasion about alleged unsatisfactory work. Gloria Rafuse had been suspended for week for poor housekeeping in December of 1994. Linda Rafuse had walked out some two years earlier and had been taken back in spite of reservations held by Ms. Lemire. In August of 1994 she had been put on probation for one month for lack of supervision of housekeepers. Did the Board find Ms. Lemire not credible? We do not know. compelling case for the giving of reasons arises from the number of issues before the Board which were aired over three days of hearings. The question of knowledge on the part of Future Inns of Union activities was substantial issue which should have been addressed. There were three distinct situations involved in the complaints. Only two of the five individual respondents were fired directly; the other three Linda Rafuse, Hubley and Milligan walked out upon the dismissal of Gloria Rafuse. They knew they had left their jobs because the following Monday they came to ask for them back. The allegation of dismissals refer to the dates February 10 and 11. It is not contended that anybody was dismissed on February 13. We have no analysis from the Board as to what it considered were the acts of Future Inns in discharging or failing to hire these employees or of intimidation generally. The Board was confronted with complaints dealing with three separate dismissals: (a) Ms. Dearman; (b) Gloria Rafuse; (c) Linda Rafuse, Cindy Milligan and Patricia Hubley. As to each of these, it was called upon to decide: (i) Whether the dismissal was because of support by the employee for the Union. This appears to allege violation of s. 53(1)(a) of the Act interference with the formation of trade union or the representation of employees by trade union. The reverse onus provision of s. 56(3) has no application. The dismissal could also be violation of s. 53(3)(a)(vi). The Board did refer to the fact that all five respondents were "terminated" by Future Inns. This is the only clue to its thinking, leading one to suspect that the "acts" of unfair labour practice were terminations. These were alleged to have occurred on February 10 and 11. (ii) Whether the refusal to employ was because the employees were members of the trade union. This appears to allege violation of s. 53(3)(a)(i). There was no allegation of refusal to continue to employ. The Board seemed to be thinking of terminations. The reverse onus provisions of s. 56 may be looked at if the threshold of establishing union membership has been reached. On the evidence, these employees had not become Union members prior to their dismissal. Indeed, it is not apparent from the evidence whether they ever became Union members. The Board has afforded no indication of what, if anything, it thought about these considerations. (iii) Whether the refusal to employ took place because the employee participated in the activities of trade union. This could be violation of s. 53(1)(a) of the Act. It could also, depending on what view the Board took of the evidence, be violation of s. 53(3)(a)(vi) of the Act, because the employee was exercising right under s. 13(1) of the Act. There is no allegation of refusal to continue to employ. The Board seems to have been thinking in terms of terminations. Unfortunately, there is no finding in this respect and it is uncertain at best whether the reverse onus provisions of s. 56(3) have application. There is general allegation that Future Inns attempted to intimidate its employees to compel them to refrain from being member of trade union or participate in the activities of trade union. This alleges violation of s. 53(1)(a). The reverse onus section is not applicable to that subsection. observe that during the argument before the Board counsel for the Union urged the reverse onus section upon the Board. Mr. Henman did not appear to have made any analysis of the effect of s. 56(3), although he referred briefly to it in his submissions. In short, s. 56(3) may or may not have applied to the fact finding process depending on what facts were found and which alleged acts of unfair labour practice were being considered. There is no indication that this was thought out by the Board. As to all of the complaints, we do not have the benefit of any analysis whether, if the reverse onus section applied, the Board addressed its mind to the prerequisite for its application, namely on what basis it was reasonable to believe that there may have been failure by Future Inns to comply with s. 53(3)(a). Counsel for the respondents urge that it is not the role of the reviewing court on certiorari application to second guess the Board on the weight and sufficiency of the evidence before it. They say that the absence of detailed reasons by the Board does not make its decision patently unreasonable or remove curial deference to its decisions. They emphasize that the patently unreasonable test sets very high threshold for judicial review, as indeed it does. They tell us that enough can be found in the record to support the conclusions of the Board. That is also the conclusion of the Chambers judge as appears from the passage have quoted from her decision. am satisfied that neither the arguments of counsel for the respondents nor the rationalizations of the Chambers judge form an adequate substitute for reasons from the Board showing what underlay its conclusions on the many issues here presented to it. The respondents are in effect asking this Court to guess at the reasoning underlying the conclusions of the Board simply because there is evidence upon which the Board could, if it chose, base its conclusions. The real problem here is that we simply do not know what it was that drove the Board to its conclusions. The issues relating to these five employees were complex and the concerns of the parties substantial. The order of the Board imposes significant monetary liability upon Future Inns. Failure to comply with the order also renders Future Inns subject to prosecution. In the circumstances, the Board acted in a patently unreasonable manner in giving this decision without reasons. There was an implied duty on the Board here to furnish reasons. It was in breach of the rules of natural justice or fair play. It is simply not sufficient that the matter was resolved by the following terse conclusions: AND the Board having been satisfied that the acts of Unfair Labour Practice were committed pursuant to Section 53 of the Trade Union Act; ... AND the Board does further order the Respondent to reinstate Jean Dearman, Gloria Rafuse, Cindy Milligan, Linda Rafuse and Patricia Hubley to their former positions and to pay to these individuals all compensation earned as if they had not been terminated by the Respondent. Counsel for the Union suggested that this Court remit the matter to the Board with an order that it furnish reasons for its decision. The Board has already made its decision. It was decision reached in patently unreasonable manner and contrary to the rules of natural justice. To ask it to make up reasons after the fact would be futile exercise. I would allow the appeal and set aside the order of the Chambers judge. I would quash the decision of the Board and remit the matter to the Board for a rehearing. This must, to the greatest extent possible, be heard before differently composed panel. would also award costs to the appellant on the appeal against the respondents Union and Board, jointly and severally, in the amount of $2,500.00, plus disbursements. On the same basis, would award the appellant costs against those respondents before the Chambers judge in the amount fixed by her, $2,500.00, inclusive of disbursements. As between these two respondents, one-half of the costs should be paid by each. Chipman, J.A. Concurred in: Matthews, J. Flinn, J.A. 1996 S.H. No. 126737 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: FUTURE INNS CANADA INC. and LABOUR RELATIONS BOARD (NOVA SCOTIA); The ATTORNEY GENERAL OF NOVA SCOTIA representing HER MAJESTY THE QUEEN in right of the Province of Nova Scotia; DIRECTOR OF PUBLIC PROSECUTIONS; HOTEL EMPLOYEES RESTAURANT EMPLOYEES INTERNATIONAL UNION, LOCAL 662; JEAN DEARMAN; GLORIA RAFUSE; CINDY MILLIGAN; LINDA RAFUSE and PATRICIA HUBLEY RESPONDENTS DECISION HEARD BEFORE: The Honourable Justice M. Jill Hamilton, Supreme Court of Nova Scotia, on June 3, 4, 19,1996, at Halifax, Nova Scotia. DECISION: August 9, 1996 COUNSEL: Blair H. Mitchell, for the Applicant Gary Holt, Q.C., for the Attorney General and the Director of Public Prosecutions Gordon N. Forsyth, for the Union and Individuals Louise Y. Walsh Poirier, for Labour Relations Board C.A. No. 131106 NOVA SCOTIA COURT OF APPEAL BETWEEN: FUTURE INNS CANADA INC. and LABOUR RELATIONS BOARD (NOVA SCOTIA); THE ATTORNEY GENERAL OF NOVA SCOTIA representing HER MAJESTY THE QUEEN in the right of the Province of Nova Scotia; DIRECTOR OF PUBLIC PROSECUTIONS; HOTEL EMPLOYEES RESTAURANT EMPLOYEES INTERNATIONAL UNION, LOCAL 662; JEAN DEARMAN; GLORIA RAFUSE; CINDY MILLIGAN; LINDA RAFUSE; and PATRICIA HUBLEY Respondents REASONS FOR JUDGMENT BY: CHIPMAN, J.A.

This was an appeal from a Supreme Court decision dismissing certiorari applications to quash three orders of the Labour Relations Board ordering the appellant to reinstate the respondents and pay them compensation for dismissing them due to their support of a union. The appellant alleged that the Board's order should be quashed because it failed to give reasons for its decision. Allowing the appeal and remitting the matter for rehearing, that there is an implied duty on a tribunal to provide written reasons whenever substantial issues are involved and the reasons for the tribunal's decision are not obvious from a review of the issues and the record. In this case, the order of the Board imposed significant financial liability on the appellant, and the issues were complex and the concerns of the parties were substantial. As a result, the Board acted in a patently unreasonable manner in giving its decision without providing reasons.

8_1997canlii9861.txt

2000 SKCA 87 Docket: 3164 THE COURT OF APPEAL FOR SASKATCHEWAN Coram: Bayda C.J.S., Sherstobitoff Lane JJ.A. RATHCLIFFE HOLDINGS LIMITED and JOSTEN HOLDINGS LIMITED and THE CITY OF SASKATOON COUNSEL: Mr. J. Hesje for the Appellants Mr. W.J. Davern for the Respondent, City of Saskatoon Mr. J. Grubb Ms. K. Richardson for the Respondent, SAMA DISPOSITION: On Appeal From: Assessment Appeals Committee of the Saskatchewan Municipal Board Appeal Heard: October 26 27, 1999 Appeal Allowed: June 29, 2000 Reasons By: The Honourable Mr. Justice Sherstobitoff In Concurrence: The Honourable Chief Justice Bayda The Honourable Mr. Justice Lane SHERSTOBITOFF J.A. [1] This appeal is taken under s. 33.1 of The Municipal Board Act, S.S. 1988-89, c. M-23.2. It is from a decision of the Assessment Appeals Committee of the Saskatchewan Municipal Board. It is one of a series of appeals heard at the same time dealing with the application of a newly introduced market adjustment factor to assessments for municipal tax purposes. [2] The appeal concerns the 1997 assessment, for municipal tax purposes, of shopping centre in Saskatoon called Market Mall. I. MARKET ADJUSTMENT FACTOR (MAF) [3] The issues raised by the appellant in this case respecting the MAF to be used in calculating the assessed value of Market Mall are exactly the same as the issues raised and dealt with in another judgment, issued concurrently with this one, in respect of the assessment of Midtown Plaza in Saskatoon: The Cadillac Fairview Corporation and The T. Eaton Company Ltd. v. City of Saskatoon. This judgment must be read in conjunction with it. [4] Market Mall, situate in southeast Saskatoon, is Saskatchewan's oldest enclosed mall. It was built in 1966 and underwent expansions in 1979, 1982, 1987 and 1992. [5] As with all other fully enclosed shopping centres in Saskatoon, the assessor calculated MAF of 0.94 for Market Mall. If it had been grouped with all other commercial retail buildings in its commercial building neighbourhood, its MAF would have been 0.65. [6] In this case, the appellant only raised two issues as follows:Did the Assessor err in law by misconstruing or misapplying the provisions of the Assessment Manual in determining the market adjustment factor for the Appellants’ properties by:i. using a single sale to calculate the market adjustment factor?ii. creating as a commercial building neighbourhood the grouping of fully enclosed shopping centres which encompassed the entire City of Saskatoon? [7] Each of the issues raised in this case was dealt with in Cadillac Fairview v. Saskatoon. Exactly the same reasoning applies in this case. As result, the appeal must be allowed on the same basis in respect of these grounds of appeal. II. ABNORMAL FUNCTIONAL OBSOLESCENCE [8] There was one ground of appeal that was unique to this case. The order granting leave to appeal stated the issue in this way: Did the Assessment Appeals Committee err in their interpretation of abnormal functional obsolescence as defined in the Manual prepared by the Saskatchewan Assessment Management Agency: i. by concluding that abnormal functional obsolescence does not apply to an add-on type of construction? ii. in concluding that abnormal functional obsolescence is only accounted for if there is an inability of an improvement to perform the function for which it is used? [9] The Saskatchewan Assessment Manual, in Document 2.3.1 summarizes and defines functional obsolescence in this way: Summary This section describes the formulas, rules and principles for determining the amount of abnormal functional obsolescence not accounted for in the replacement cost new less physical deterioration or the market adjustment factor for commercial buildings and structures valued by the replacement cost method. Definition Functional obsolescence is the loss in value from replacement cost new less physical deterioration due to the inability of the building or structure to adequately perform the function for which it is used. Functional obsolescence is caused by changes in demand, design and technology which result in loss in the utility of the building or structure. [10] The appellant had argued before the Board of Revision and before the Assessment Appeals Committee that various expansions of the mall, over the years, to meet the requirements of various new tenants resulted in an excess of non revenue producing common area, and superadequate (and costly) underground parking, and that these things, because they detracted from the economic utility of the premises amounted to abnormal functional obsolescence within the meaning of the manual. [11] The Assessment Appeals Committee said this, in dismissing the appeal: The appellant suggested that Market Mall had an excess of common area that required reduction for functional obsolescence, and that the underground parkade was functionally obsolete. The definition, “caused by changes in demand, design and technology which resulted in loss in the utility”, does not appear to apply to an add on type of construction but rather vintage building when design standards were different and building has seen its day. The appellant suggested that utility is economic utility. The record does not support that view, The appellant and the respondent disagree on the food court and the mini-golf being common area or commercial rental space. On the balance of probability, argument before the Committee leads it to believe that these areas are commercial rental areas as they generate income (directly or indirectly) similar to the balance of the commercial rental units in the facility. The present method of assessing the common area, therefore, is reasonable. The Manual is specific that all normal functional obsolescence is accounted for in the MAF. Abnormal functional obsolescence is accounted for if there is an inability of the improvement to perform the function for which it is used. The hypothesis presented by the appellant and the respondent of the super-adequacy of high ceiling hardly relates to the subject property as an example comparison. The generic sizes of common areas, published in books or texts, are not supported in the Manual. There is no common area size requirement, process or methodology in the Manual. The business decision of building parkade along with the lack of above ground parking are not in the category of abnormal functional obsolescence for the improvement. As an aside, no one gave any reason that there were 11 more stalls built than are required by the bylaw, and the Board was then asked to treat the extras as abnormal functional obsolescence. The Board was not convinced, on the evidence presented before it, that an additional obsolescence was required. Abnormal functional obsolescence is only accounted for if there is an inability of an improvement to perform the function for which it is used. This is major shopping centre performing that function. The Board did not err. This ground of appeal to the Committee fails. [12] The appellant conceded that the question of whether the various expansions resulted in abnormal functional economic obsolescence was question of mixed fact and law, and thus beyond the scope of this appeal. Its argument was confined to whether the committee had erred in law by saying that the definition of functional obsolescence did not apply to an add-on type of construction, or by finding that there must be an inability of an improvement to perform the function for which it is used. [13] Whether the committee was right or wrong in saying what it did in respect of add-on construction is really beside the point, since a careful reading of the decision shows that that was not the ground for the decision. The same may be said in respect of the committee declining to accept the appellant's argument that economic utility should govern, rather than the ability of the improvements to adequately perform the function for which they were used. [14] It is clear that the committee was not satisfied that the appellant had established that there was any excess of non-revenue producing common area, or any accepted standard as to ratio of revenue to non revenue producing areas. Nor was it satisfied that the appellant had established that there was any lack of economic utility in the common areas or underground parkade. Finally, the committee was obviously of the view that the evidence showed that the improvements did adequately perform the function for which they were used which is another way of saying that there was no lack of economic utility. [15] In sum, the decision was arrived at not as a result of any wrong interpretation of the manual, but as a result of the appellant\'s failure to establish to the satisfaction of the committee the facts on which it based its case. Or, to put it another way, it was decided on the evidence or lack thereof. In either case, the decision is beyond our jurisdiction to review. [16] This branch of the appeal must, accordingly, be dismissed. [17] Since success was divided, there shall be no order as to costs. DATED at the City of Regina, in the Province of Saskatchewan, this 29th day of June, A.D. 2000. SHERSTOBITOFF J.A. concur. BAYDA C.J.S.

An appeal under s.33.1 of the Municipal Board Act from a decision of the Assessment Appeals Committee of the Saskatchewan Municipal Board, one in a series of appeals heard at the same time dealing with the application of a newly introduced market adjustment factor (MAF) to assessments for municipal tax purposes. In issue was whether the assessor erred in law by misconstruing or misapplying the provisions of the Assessment Manual in determining the MAF for the appellant's shopping centre properties by using a single sale to calculate the MAF; and by creating as a commercial building neighbourhood the grouping of fully enclosed shopping centres which encompassed the entire city. HELD: 1)The assessment was set aside and the matter was remitted to the assessor to be dealt with according to the manual. Both issues were dealt with in Cadillac Fairview v. Saskatoon (TWL CA00074) and the same reasoning applied. 2)The appellant conceded that the question of whether the various expansions of the shopping centre resulted in abnormal functional economic obsolescence was a question of mixed law and fact and was thus beyond the scope of this appeal. 3)The second branch of the appeal was dismissed. Whether the committee erred in law by saying the definition of functional obsolescence did not apply to an add-on type of construction was beside the point since that was not the ground for the decision. The decision was not the result of any wrong interpretation of the manual but was the result of the appellant's failure to establish to the committee's satisfaction the facts on which it based its case. The decision was therefore beyond the Court of Appeal's jurisdiction to review. 4)There was no order as to costs as success was divided.

9_2000skca87.txt

nan THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2006 SKCA 55 Date: 20060516 Between: Docket: 1117 Trevor James Drury and Her Majesty the Queen Coram: Lane, Jackson Richards JJ.A. Counsel: Darren Armitage for Trevor James Drury Frank Impey for the Crown Appeal: From: QBJ No. 19 of 2004, J.C. Saskatoon Heard: May 16, 2006 Disposition: Appeal Dismissed (orally) Written Reasons: May 19, 2006 By: The Honourable Madam Justice Jackson In Concurrence: The Honourable Mr. Justice Lane The Honourable Mr. Justice Richards Jackson J.A. [1] On the hearing of the appeal, the application to adduce fresh evidence and the appeal against conviction were dismissed with brief written reasons to follow. These are those reasons. [2] Trevor Drury appeals his conviction for possession for the purpose of trafficking methamphetamine contrary to s. 5(2) of the Controlled Drugs and Substances Act. [1] His sole ground of appeal hinges on the Court accepting fresh evidence. [3] The central issue at trial was whether the drugs found at the premises being rented by one Sandra Bodkin belonged to Trevor Drury or to Sandra Bodkin. In deciding this issue, as part of the overall facts, the trial judge had to determine whether Trevor Drury was renting part of Sandra Bodkin's basement at the time of the discovery of the methamphetamine. Mr. Drury denied living in Ms. Bodkin’s basement and denied being seller of methamphetamine. Both Ms. Bodkin and Mr. Drury testified. [4] Scheibel J., the learned trial judge, set forth the evidence and his decision as follows: The central issue is one of credibility. The Crown's case is based, in large measure, on the evidence of Sandra Bodkin, who was large drug user at the time of the alleged offence. She claims that she bought drugs from the accused, and used both marihuana and methamphetamine. She called the accused friend, and her dealer for the drugs which she was looking for from time to time. She testified she would pay the accused cash, or give him jewelry as collateral. She claims that she purchased drugs from the accused almost every day. Sandra Bodkin rented duplex which had basement. few days prior to April the 17th, 2003 the accused moved into the open portion of the basement of the duplex, based on Bodkin's evidence. Bodkin further states that the accused was helping her with drugs, so she gave him place to stay. On the 17th day of April Bodkin's brother came over and began hitting the accused with baseball bat. Bodkin testifies she was fearful because she thought her brother was going to kill the accused, and she called the police. After the police arrived Bodkin gave them permission to search the basement portion, which she claims was being used by the accused. As result of the search 23.4 grams of crystal meth was discovered, and several items were seized, including machete, second knife in case, dagger, scale, baggies, jewelry box and ring. Bodkin testified that all of these items seized belonged to the accused, with the exception of the ring, which she claims she gave to him as collateral for drug purchases. The accused claims he was not living in Bodkin's basement, and denies that the drugs and the drug paraphernalia were his. He claims the jewelry box belonged to Bodkin, and the drugs were hers. He also claims he has never seen the knives seized. On the issue of credibility, if believe the evidence of the accused must acquit him of the charges. Even if do not believe the evidence of the accused, but am left in reasonable doubt by it, must acquit the accused. If am not in doubt by the evidence of the accused, still must ask myself whether, on the basis of the evidence which do accept, am satisfied beyond reasonable doubt of the guilt of the accused. The evidence of the accused is supported by Aaron Bradley, friend of the accused, who claims the accused was living with him on April 17th, 2003. He claims he has never seen the accused traffic in drugs, and that he does not allow drugs at his house. The effect of this evidence is to contradict that of Bodkin, as to where the accused was living at the time, and thereby further challenge the Crown's position that the seized items were that of the accused. Given the fact that Sandra Bodkin was heavy user of drugs at the relevant time, must be cautious about accepting her testimony. Without her evidence, the Crown's case must fail. When the police arrived at Bodkin's duplex they determined that she was sober, even though Bodkin states that she was stoned. Despite some concerns about her testimony, found her to be credible on the crucial issues relating to the charge. On the other hand, had great deal of difficulty with the evidence of the accused, and in the end did not find him to be truthful. Aaron Bradley may have been truthful, but, if so, he was mistaken as to the time when the accused was residing with him. Therefore his evidence is of no assistance to the accused. Chad Coles of the R.C.M.P. was called as an expert in drug use, paraphernalia, and street value of drugs. accept his evidence that the 23.4 grams of meth exceeds that which might be for personal use. also accept his evidence that the quantity of drugs is consistent with possession for the purposes of trafficking. With respect to count number in the Indictment, the Crown has proven each and every essential ingredient of the charge to my satisfaction beyond reasonable doubt, and therefore find the accused guilty as charged on that count. [5] At trial Ms. Bodkin denied selling methamphetamine, but said she bought it in small quantities from Mr. Drury almost daily. Mr. Drury’s fresh evidence seeks to prove that Ms. Bodkin was the dealer and that she was the one selling methamphetamine to him. It was argued that if the trial judge had this evidence, which contradicted Ms. Bodkin’s statement that she was not dealer, this would have been enough to raise reasonable doubt in Mr. Drury’s favour. [6] The fresh evidence comes in the form of two affidavits. The first, from Mr. Drury, purports to say what one Megan Bairos and an unnamed friend would say, if they were to testify or swear their own affidavits. Mr. Drury's sworn affidavit dated April 19, 2006 provides: 7. Megan Bairos is/was fellow methamphetamine user. She was living in Saskatoon at the time of my arrest and was willing to testify at trial. She also advised me that friend of hers, who do not know and the particulars of which do not know, was also willing to testify on my behalf. Both would testify that they had purchased methamphetamine, from Sandra Bodkin, around the time of my arrest (which is contrary to Sandra Bodkin's testimony, which was central to the reasoning of Judge Scheibel). 8. Unfortunately, it is the nature of methamphetamine users to be transient and undependable and in fact Ms. Bairos moved, while my trial was pending. did not know where she had gone; had only third hand information (at best) to the effect that she was "in Vancouver". She did not have listing in Vancouver, and nobody knew had any information about her whereabouts. Further, was unable to find out the identity of her friend ... 10. Megan is back in town, or was several weeks ago. was in touch with her and she promised to provide an affidavit for use in this matter. However, she was very pregnant at the time and was due to deliver some time around mid March. The last time talked to her, she was three weeks overdue and was preoccupied and could not be of assistance. 11. Now, her telephone is cut off, and do not know how to contact her. still do not know the identity of her friend. do, however, believe that she is still in Saskatoon and still able to provide evidence.[3] During the trial, Mr. Drury testified that two witnesses were going to testify but that he could no longer find them.[4] [7] The second affidavit, dated April 12, 2006, is from Sherry Brinkman who swears that at some point in the past she knew Ms. Bodkin as methamphetamine dealer. She states: 2. That know the Appellant, Trevor James Drury. met him in the summer of 2004, through his girlfriend, Lisa Harris. did not know him until then, and did not know him at the time when he was charged with the offences in this case. 3. That also know Sandra Bodkin, as hereinafter detailed. know her via my association with my now-ex common-law husband. 4. That, until August of 2004, was living in common-law relationship with Jonathon Moore. 5. That Jonathon was, at that time, and had been for several years by then, regular user of crystal methamphetamine. 6. That it was through Jonathon (and in turn, through Sandra's brother, Rick) that met Sandra Bodkin. 7. After we had known Sandra for short while, Jonathon and would stop by Sandra's home and Jonathon would run in and come back out with methamphetamine. Later still, began to actually go inside with him. After knew her, Jonathon and went to her home regularly; estimate was at her home at least once every ten days. 8. That personally saw Sandra Bodkin sell methamphetamine to Jonathon Moore, on numerous occasions. She kept it hidden about her premises; sometimes producing it from under the couch, other times from her sewing box. 9. That am advised by Trevor Drury and do verily believe that Sandra Bodkin testified at his trial, and that she did swear that she was not in fact seller of methamphetamine, but was actually customer and that in fact the person who sold methamphetamine to her was Trevor Drury. 10. That did not even know Trevor via Jonathon's and my attendance at Sandra Bodkin's home, nor did know him at all during the times when Jonathon was purchasing from Sandra, except near the end. In fact, have never seen Trevor at her house. have never purchased methamphetamine from Trevor, nor have seen him sell it, or heard of him selling it.[5] [8] The test for the admission of fresh evidence is well known. After review of the authorities, McIntyre J., speaking for the Supreme Court of Canada in R. v. Palmer, [6] stated: (1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in criminal case as in civil cases: see McMartin v. The Queen [1964 CanLII 43 (SCC), [1964] S.C.R. 484]. (2) The evidence must be relevant in the sense that it bears upon decisive or potentially decisive issue in the trial. (3) The evidence must be credible in the sense that it is reasonably capable of belief, and (4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. Other factors are also relevant. For example, s. 683 of the Criminal Code does not authorize the Court of Appeal to dispense with the law of hearsay evidence: R. v. O'Brien.[7] See also, on this point, R. v. Teneycke.[8] [9] Applying this case law to both affidavits, they fail the test for admission for slightly different reasons in each case. [10] With respect to the evidence of Megan Bairos and her friend, we still do not have this evidence before us. All we have is Mr. Drury's statement as to what they will say, which must fail on the basis of hearsay. As Chief Justice Dickson speaking for the Court in O’Brien indicated, any evidence sought to be adduced under the discretion of what is now s. 683 of the Criminal Code must be admissible evidence.[9] [11] With respect to the evidence of Ms. Brinkman, she does not swear that Ms. Bodkin was selling methamphetamine on April 17, 2003, the date when the offence was alleged to have been committed. Indeed, Mr. Drury's affidavit confines Ms. Brinkman's affidavit to 2004 and on. On the hearing of the application, Mr. Drury's counsel confirmed that Ms. Brinkman could not testify as to whether Ms. Bodkin sold methamphetamine in 2003. [12] While not strictly necessary in relation to Mr. Drury’s affidavit, some specific comments may be made in relation to the application of the Palmer principles. First, with respect to due diligence, it must be noted that Mr. Drury had the assistance of experienced counsel at trial and who, indeed, represents him before this Court. Mr. Drury decided, expressly, to proceed with the trial despite the absence of the two witnesses who he now seeks to put forward. If the Court were to permit Mr. Drury's application to succeed, it would encourage the splitting of trial simply to obtain an order for new trial with all of the attendant delays and other problems. It is noted, in this case, that some of the delay was, in part, the product of the Crown being unable to secure the testimony of Ms. Bodkin voluntarily. bench warrant had to be issued for her arrest and, at one point, she was taken into custody. An order for new trial in this case, over three years after the offence, would almost certainly result in the Crown being required to abandon the charges. While clearly not determinative, the avoidance of evidence-splitting with all of its attendant problems, is one reason that supports the requirement of due diligence. [13] As the Palmer principles indicate,[10] due diligence is not applied strictly in criminal matters. This brings into play the fourth factor which is consideration of the effect of the new evidence on the outcome of the trial. Since Ms. Brinkman’s evidence did not exist in 2004, the fourth factor must be considered in relation to her evidence. [14] In our view, the result could not reasonably be expected to be any different if the fresh evidence were admitted and a new trial ordered. As the above review of the trial judge's reasons demonstrates, Scheibel J. was aware of Ms. Bodkin's consumption of drugs. Indeed, Ms. Bodkin testified in what appears to be candid and free manner about growing marihuana in her basement at the time Mr. Drury was living there. She also candidly said she sold drugs but not methamphetamine. Ms. Brinkman, and perhaps Ms. Bairos, may be able to contradict this latter statement, but this testimony would not bear directly on whether Mr. Drury sold methamphetamine and whether the methamphetamine in the basement of her home belonged to him. Ms. Bodkin’s actions, first, in asking the police officers to search her basement because of concern related to the violence started by her brother and then, subsequently, giving them full consent to search the basement portion occupied by Mr. Drury are completely inconsistent with her being the owner of the methamphetamine which was found virtually in plain view. Finally, it must be kept in mind that the trial judge rejected Mr. Drury’s evidence. [15] Before concluding these reasons, it is perhaps important to note that we are aware that the appellant did not follow the procedure outlined by the Supreme Court of Canada in R. v. Lévesque[11] in making this fresh evidence application. Indeed, no notice was given to the Crown of the application for fresh evidence and the original notice of appeal did not make reference to the possibility of an application to adduce fresh evidence. Crown counsel advised the Court of the lack of notice, but did not ask for an adjournment. [16] For all these reasons, the application to adduce fresh evidence is dismissed. There being no ground of appeal other than that there would be a miscarriage of justice if the conviction were affirmed in light of the fresh evidence, the appeal is dismissed. [1] S.C. 1996, c. 19. [2] Trial Transcript, Vol. II, p. 267, line to p. 270, line 10. [3] Appellant's Factum at tab 11. [4] Supra, footnote 2, at pp. 258-59. [5] Supra, note 3, at tab 10. [6] 1979 CanLII (SCC), [1980] S.C.R. 759 at 775. [7] 1977 CanLII 168 (SCC), [1978] S.C.R. 591. [8] (1996), 1996 CanLII 2213 (BC CA), 108 C.C.C. (3d) 53 (B.C.C.A.) at para. 25. [9] Supra, footnote 7, O’Brien at p. 602. [10] Supra, footnote citing McMartin v. The Queen, 1964 CanLII 43 (SCC), [1964] S.C.R. 484 at 491. See also R. v. McAnespie, 1993 CanLII 50 (SCC), [1993] S.C.R. 501 at 502. [11] 2000 SCC 47 (CanLII), [2000] S.C.R. 487.

The appellant appealed his conviction for possession for the purpose of trafficking methamphetamine contrary to s. 5(2) of the Controlled Drugs and Substances Act. His sole ground of appeal hinges on the court accepting fresh evidence. HELD: The application to adduce fresh evidence is dismissed. There being no ground of appeal other than that there would be a miscarriage of justice if the conviction were affirmed in light of the fresh evidence, the appeal is dismissed. 1) Applying the case law to the fresh evidence, they fail the test for admission. 2) With respect to the evidence of Megan Bairos and her friend, we still do not have this evidence before us. All we have is the appellant's statement as to what they will say, which must fail on the basis of hearsay. Any evidence sought to be adduced under the discretion of what is now s. 683 of the Code must be admissible evidence. With respect to the evidence of Ms. Brinkman, she does not swear that Ms. Bodkin was selling methamphetamine at the relevant time. 3) With respect to due diligence, it must be noted that the appellant had the assistance of experienced counsel at trial and who represents him before this court. The appellant decided to proceed with the trial despite the absence of the two witnesses who he now seeks to put forward. If the appellant's application were to succeed, it would encourage the splitting of trial simply to obtain an order for new trial with all of the attendant delays and other problems. 4) In the court's view, the result could not reasonably be expected to be any different if the fresh evidence was admitted and a new trial ordered.

e_2006skca55.txt

J. THE COURT OF APPEAL FOR SASKATCHEWAN HER MAJESTY THE QUEEN and RANDALL DESNOMIE CORAM: The Honourable Mr. Justice Cameron The Honourable Mr. Justice Sherstobitoff The Honourable Mr. Justice Lane COUNSEL: Mr. D.M. Brown, Q.C. for the Crown Ms. C.G. Covert for the Respondent DISPOSITION: Appeal Heard: March 8, 1996 Appeal Allowed: March 8, 1996 (orally) Reasons: March 21, 1996 On Appeal From: QBCNJ 39 of 1995, J.C. of Regina Appeal File: 6807 Reasons by: The Honourable Mr. Justice Sherstobitoff In concurrence: The Honourable Mr. Justice Cameron and The Honourable Mr. Justice Lane SHERSTOBITOFF J.A. (orally) This is a Crown appeal against two sentences of two years less a day each, to be served concurrently. The sentences were imposed in respect of two convictions for armed robbery. The respondent agreed that the facts of the case were accurately set out in the Crown factum as follows: On September 10, 1994 the Respondent negotiated sale of hash oil to be supplied by the complainant Jesse Thorseth. The arrangement was for the Respondent to come to Mr. Thorseth's apartment in the evening to pick it up. The Respondent had only $425.00 of the $450.00 which was the negotiated price but Mr. Thorseth agreed that it was sufficient. Although they sampled some of the hash together and the Respondent agreed it was sufficient quality, when the Respondent returned to his mother's apartment he decided that the hash was no good. The Respondent was angry that he had been ripped off and returned to Mr. Thorseth's apartment to confront him and get his money back. At that point Mr. Thorseth said that he did not have the money any longer. The Respondent didn't believe this to be true since he had only been away from the apartment for five minutes and therefore he pulled out knife and threatened Mr. Thorseth. Eventually, the Respondent found the money underneath Mr. Thorseth's bed. He took that money and in addition took $5 or $6 in change and some jewellery that was laying on the counter which belonged to Mareea Spyropoulos. Ms. Spyropoulos was not involved in the negotiation of the sale of the drugs and was likely in the washroom during the initial transaction. She was frightened by the Respondent's threatening behaviour with the knife. The Respondent was arrested on the charge on September 22, 1994. As he was at that time on parole for his conviction of January 23, 1992 for robbery, his parole was revoked. The service of that sentence concluded on March 4, 1995 and he was held on Remand until the date of sentencing, September 22, 1995. In the proceedings before the trial court, it was considered that he had been on Remand the entire time being one year. Mr. Justice D.E.W. McIntyre felt that sentence of four years imprisonment would be appropriate in the circumstances of this case. He gave credit of two years for the one year he believed the Respondent had spent on Remand and therefore imposed sentence of two years less one day concurrent on each charge. In addition, firearms prohibition under Section 100 of the Criminal Code was made for life. Some additional facts set out in the respondent's factum are not reproduced because they are not relevant to the appeal. The appellant is 32 years of age and has 32 previous convictions including two armed robberies and seven other convictions relating to possession of weapons. As noted earlier, he was on parole for an earlier armed robbery when this offence occurred. The appellant has common law wife, four children from previous unions, and an aged mother who is at least partially dependent on him. He has Grade 12 education and was pursuing secondary education at the Saskatchewan Indian Federated College. Indeed, his only excuse for the drug deal was that he needed the money from "peddling dope" to pursue his education and to meet the needs of his children. He said the robbery was unpremeditated and occurred only because the money he paid for the drugs was very large sum to him, and the robbery was necessary to recoup the money because the drugs were bad. The Crown appeal must be allowed for two reasons. First of all, the judge clearly made an error in calculating the time on remand that should have been credited to the sentence for this offence — only the period from March 4, 1995, to September 22, 1995, approximately six months, should have been so counted rather than the whole year. Second, given the record of the appellant, particularly in respect of armed robbery and weapons offences, these offences demanded a sentence of more than the three year minimum generally imposed for such offences. Taking all of these factors into account, and even allowing some discount for the fact that the robbery occurred during the course of an illegal drug transaction, the sentences for each offence should be increased to three years imprisonment, the sentences to be served concurrently. There will be an order accordingly.

The Crown appealed two sentences of two years less a day each, to be served concurrently for armed robbery. The 32 year old appellant had 32 previous convictions including two armed robberies and seven convictions relating to possession of weapons. HELD: The Crown appeal was allowed and the sentence for each offence was increased to three years imprisonment to be served concurrently. 1)The judge made an error in calculating the time on remand that should have been credited to the sentence. Only six months rather than the whole year should have been counted. 2)Given the appellant's record these offences demanded more than the three year minimum generally imposed.

3_1996canlii4959.txt

J. Q.B. A.D. 1994 No. 120 J.C.M. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF MELFORT IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, AND IN THE MATTER OF D.M., D.M, AND D.M. CHILDREN OF W.M. AND A.M., AND IN THE MATTER OF AN APPLICATION BY THE MINISTER OF SOCIAL SERVICES FOR SASKATCHEWAN FOR AN ORDER OF PERMANENT COMMITTAL TO THE MINISTER S. Eisner for the appellant, W. M. M. Annand for the Minister of Social Services JUDGMENT KLEBUC J. August 16, 1995 W. M. appealed the order of Diehl, P.C.J. pursuantto the provisions of s. 37(2) of The Child and Family ServicesAct, S.S. 1989, c. C-7.2, permanently committing his threechildren to the care of the Minister responsible for theadministration of the Act. The names and birth dates of the children are recorded as follows: D.W.M. born November 26, 1980; D.A.M. born November 26, 1980; D.M.A.M. born July 6, 1985. The children are presently in foster home. The learned trial judge provided written reasons wherein he carefully reviewed the applicable principles of law and applied them to the evidence. It is an establishedprinciple that an appeal court should not interfere with thefindings of fact by a trial judge unless the findings are notsupported by the evidence or the conclusions reached by thetrial judge are clearly wrong so as to make the decisionunreasonable: Lensen v. Lensen, 1987 CanLII (SCC), [1987] S.C.R. 672 at 683; R. v. Andres, 1979 CanLII 2238 (SK CA), [1982] W.W.R. 249; 1979 CanLII 2238 (SK CA), Sask. R. 96 (Sask. C.A.). The transcript of the proceeding before the trial judge confirms that there was ample evidence of each child's need of protection as contemplated by s. 11 of the Act and that the best interests of each child would be served by permanent committal notwithstanding that none of them, based on the sparse evidence before the trial judge, is likely to be adopted. In my view, the trial judge did not misdirecthimself on the law or the evidence with respect to thegoverning principles as set out in Saskatchewan (Minister ofSocial Services) v. E.(S.), 1992 CanLII 8071 (SK QB), [1992] 5 W.W.R. 289; D.S. v.Saskatchewan (Minister of Social Services), (1993) 108 Sask.R. 107; Saskatchewan (Minister of Social Services) v. R.G.,(1990) 1990 CanLII 7428 (SK QB), 88 Sask. R. 262, or on the application thereof to theevidence before him. The order of Diehl P.C.J. is confirmed and theappeal dismissed with costs.

A Father appealed an order permanently committing his 3 children to the care of the Minister of Social Services. HELD: Appeal dismissed. 1)It is an established principle that an appeal court should not interfere with the findings of fact by a trial judge unless the findings are not supported by the evidence or the conclusions reached by the trial judge are clearly wrong so as to make the decision unreasonable. 2)The trial judge did not misdirect himself on the law or the evidence with respect to the governing principles applicable to applications of this kind.

3_1995canlii5872.txt

IN THE FAMILY COURT OF NOVA SCOTIA Citation: A.L.H. v. M.R.H., 2006 NSFC Date: March 29, 2006 Docket: FWMCA-No. 025728 Registry: Shubenacadie Between: A.L.H. Respondent Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on February 5, 2009. Judge: The Honourable Judge Corrine Sparks, J.F.C. Heard: December 21, 2005 January 18, 2006 February 14, 2006 February 15, 2006 February 28, 2006 Written Decision: March 29, 2006 Counsel: Kerri Robson, representing A.L.H. Brian Stephens, representing M.R.H. By the Court: [1] This is request for variation of the primary care arrangements for two children: D.R.M.H. and M.M.J.H. who are eight and seven years of age respectively. Pursuant to the Maintenance and Custody Act A.L.H. applies for a change in the primary care arrangements, and M.R.H. requests a dismissal of the current application to vary in order to preserve the present arrangement vesting primary and day to day care and control of the children with him, subject to access times with their mother. For ease of reference, A.L.H. is alternatively referred to as “the mother”, and likewise M.R.H. is alternatively referred to as “the father” throughout this decision. Nature of the Testimony: [2] During the hearing, twelve witnesses including the parties themselves testified. As is all too common on custody application of this nature, much of the testimony has been focused on the human shortcomings of the parties, without meaningful link to the overall welfare of the children. Reams of character evidence tends to reach point of diminishing returns for litigant, meaning the probative value becomes elusive and seemingly amorphous. Indeed, the testimony of some relatives and others who testified on behalf of each party can be described as character witnesses, and their testimony was largely inconsequential regarding the primary consideration before the Court determination of the best interests, and the most suitable parenting plan to meet the short and long term needs, of D.R.M.H. and M.M.J.H. (“M.H.J.H.”). Having said that, all of the testimony has been reviewed and weighed by the Court; however, this decision will only address the salient evidence before the Court with an apparent nexus to the welfare of these two young boys. [3] The parties have three children; S., D.R.M.H. and M.M.J.H.. S. who is nine years of age, the eldest child of the relationship, resides with her maternal grandparents (actually the biological maternal grandmother and the step- grandfather, for ease of reference they are referred to as “the grandparents”). She has expressed her desire to remain in the day to day care of her grandparents, who reside next door to the residence of her father, M.R.H.. As will be explained more fully later, the maternal grandparents are involved with the upbringing of all three children; and even though D.R.M.H. and M.H.J.H. do not actually physically reside with their grandparents, the grandparents nevertheless provide much more than traditional grand parental guidance and input. Rather, the grandparents fortunately have been an independent source of support and encouragement for all three children during the long-standing tumultuous and, at times, violent relationship between these two parents. Indeed, M.R.H. proposes to relocate in tandem with the grandparents as they plan an imminent move from the [name of place removed] area. He, as will be explained, relies on the grandparents for financial and emotional support for the children as well as for direct, hands on, child caring responsibilities. Previous Family Court History: [4] In 2001 the parties, without benefit of legal counsel, consented to custody order granting the mother sole custody of the three children of the marriage ,with the father enjoying reasonable access. In 2003, as result of ongoing mental health disturbances the mother had to be hospitalized. Consequently, D.R.M.H. and M.H.J.H. were placed in the joint custody of the parents with the primary and day to care and control with the father. [5] It was undisputed in the evidence that the parties agreed it would be preferable for the boys to reside with their father; rather than being apprehended and eventually placed in care with the local child protection agency. It was also understood by the parties that the children would be returned to the mother’s primary care once she was released from hospital, and became stabilized after suitable mental health interventions and treatment. However, the boys were not returned to her care, and consequently the mother, shortly after her release from hospital, filed this application for a variation of the primary care and control order. [6] In a nutshell, the mother alleges the children, while in the care of their father, are not receiving suitable or appropriate parenting. She states the children are subjected to substandard hygiene and are exposed to constant illicit drug use by the father as well as inadequate supervision and guidance. She more specifically asserts the children are improperly and irregularly bathed, exposed to daily and troublesome drug use by the father, emotionally upset by series of broken promises by their father and exposed to violent physical and verbal attacks by the father against her and her current common-law partner. [7] On the other hand, the father states his chief concern is about the emotional and mental well being and stability of the mother. He argues the mother has had serious and longstanding mental health issues in the past requiring hospitalization (at least twice) and he believes the short term and long term stability of the children could not be assured if they are placed back in her primary care and control [8] Elaboratively, the father maintains the mother, although seemingly stabilized with her mental condition, has history of short term relationships with other men. These relationships, he submits, are with men who the mother meets while hospitalized. He says in the past these relationships have been of short duration and have resulted in frequent moves by the mother. Furthermore, he adds, the mother’s troubling misconduct both pre- and post-hospitalization, has been characterized with incessant harassing telephone calls late at night, or in the early morning hours to him as well as his friends and relatives. Regarding his drug usage, he admits to smoking drugs (marijuana) daily, but denies smoking drugs in front of the boys. Rather, he contends, that he uses an empty laundry room for his regular drug use. Besides this, he states when he is seasonally employed, as roofer with local company, he routinely smokes drugs on his way to his job and immediately after he completes his work. shall have more to say about his drug habit later. Section 19 Court Ordered Assessment: [9] Due the nature of the conflict between the parties as well as the mental health concerns affecting the mother, the Court ordered Section 19 custody and access assessment pursuant to the Maintenance and Custody Act. Danny Nau prepared an assessment for the Court, which identified and outlined various advantages and disadvantages to the parenting style of each parent. While he opined the boys may receive suitable parenting from each parent, in the end he preferred the parenting security offered by the mother notwithstanding her ongoing mental health challenges. [10] Danny Nau is an experienced assessor who has prepared many assessments for the Court in the past. On the witness stand he carefully explained the procedure he used in assessing the parenting abilities of each parent. However, he notably preferred the interactive parenting style of the mother, although he explained both parents are emotionally connected to the children and can provide adequate guidance. In short, he recommends the joint custody arrangement be maintained for the children, but with change of the primary care provision of the order. He, furthermore, acknowledges the ongoing communication difficulties between the parties. He states in his report at page 20: [A.L.H.] has made mistakes in her past as parent and this may be her last time to ensure that she can consistently care for her children. She appears motivated to be an effective parent at this time and both her mental health support and Family and Child’s[sic] Services personnel commented that she is functioning well and able to parent. [M.R.H.] is good parent but to this author the deciding feature in this matter was that [A.L.H.] can provide much more direct parenting than [M.R.H.] at this time. There also appeared to be an agreement ...that when [A.L.H.] was stable on her medications and mental health issues she would again resume primary care responsibilities of the children...... It is my opinion that because of the uncertainties in this matter primary care be reviewed at the beginning of the coming school year, or earlier, depending upon the circumstances. [11] During cross-examination, the key underpinnings of the assessment were not significantly challenged, nor was the procedure utilized by the assessor questioned. No substantial or compelling reason was presented to the Court to disregard or earnestly question the key recommendations of the assessor. Thus, on balance, conclude the assessment is comprehensive and informative in its recommendations to the Court. The assessment recommendations are, therefore, regarded as weighty factor in determining the best interests of these two boys. Thus, in the present circumstances, the recommendation for primary care to be transferred to the mother in the Section 19 assessment is favorable factor in support of the mother’s application to vary. Mental Heallth Services in Place for A.L.H.: [12] Susan Pirie, Community Mental Health Nurse, testified and explained the mental health history of A.L.H. which dates back to 1992. The mother is diagnosed with Bipolar Mood Disorder with psychotic features. Susan Pirie, as part of an interdisciplinary team, which includes psychiatrist, psychologist and other nurses, monitors A.L.H.’s symptoms by regular follow up appointments at medical clinic in Lower Sackville. In addition to periodical monitoring, A.L.H. is prescribed five daily medications Risperidone (anti- psychotic medication to control racing thoughts at night), Clonazepam (anti-anxiety medication), Clomipramine (anti-depressant), Trazadone (anti-depressant) and Lamotrigine (mood stabilizer). [13] A.L.H. is described, by Susan Pirie, as being consistent with regular appointments and, even in the face of extraordinary circumstances concerning the present litigation, to be progressing well with her out patient treatment plan. Ms. Pirie opines if A.L.H. continues to participate in the program customized for her, as well as take her medication, there are no apparent impediments to her providing daily caring for the boys. It was clear, however, that the recent and increasing late night telephone calls had not been disclosed to Susan Pirie by the mother. [14] Regarding relapses, it was explained if there is sudden change or trauma, relapse could be triggered. But relapse does not automatically require re‑hospitalization and may be treated by quick intervention on the part of the mental health team assigned to A.L.H.. Furthermore, Susan Pirie states the possibility of relapse is slight if A.L.H. continues to be compliant with her treatment program. Specifics of the mother’s treatment plan are outlined in Susan Pirie’s report, exhibit #3. Present Circumstances of the Children: [15] The father is primarily responsible for the care of the boys, although when he is seasonally employed as roofer, the children arise very early at 5:30 a.m. After they are out of bed, they then go to their maternal grandparents’ residence where they are permitted to sleep longer until it is time to catch the bus for school. The maternal grandparents feed them breakfast and prepare their lunches. After the father returns home from his roofing job, around 8:30 pm, the children are then taken to their home for the night. At times, there have been disputes about the appropriateness of the school lunch ingredients provided by the father. There have also been disputes over the purchase of winter snow suits and outerwear for the children, with the grandparents claiming to have purchased these clothing items when they were not forthcoming from the father. [16] When the father is not employed, he states he is responsible for the children and, as in the past, he attends to their daily needs. He says the children are bathed every second day, and as mentioned earlier he says he does not use drugs in the presence of the children. The father has no driver’s license, and is unable to drive motor vehicle, having accumulated myriad of driving infractions to add to his already lengthy criminal record. So, he is dependent upon the maternal grandparents to transport the children for medical and dental appointments. There is no public transportation as they reside in rural area. The father has no motor vehicle, no valid driver’s license, no telephone service, and from time to time no running water in his home. Apparently, the last time the water was disconnected for non payment, he and the boys, went to live temporarily with his new lady friend. [17] Contrastingly, the children spend weekend parenting time with the mother who asserts the children are unkept and unclean when they come to spend parenting time with her. She states the children want to stay with her as they, especially D.R.M.H., is disillusioned about his father as his father has repeatedly disappointed him with continual broken promises. For example, she explained phone conversation which took place in her livingroom when D.R.M.H. was promised by his father he would come to pick him up. This turned into an emotionally charged scene for D.R.M.H. as he began to cry and yell out repeatedly calling his father “a liar”. Eventually, D.R.M.H. became so irritated and emotionally distraught he urinated in his pants on his mother’s sofa. [18] As well, D.R.M.H. suffers from asthma and his mother states that D.R.M.H. arrives for weekend visits with her without his puffer. The father responds by saying he sends the puffer with D.R.M.H. to the grandparents home and D.R.M.H. is suppose to have his puffer in his school bag. [19] Additionally, there have been several disputes over the weekend parenting times, with pickup times resulting in the unfortunate involvement with the father’s relatives. These disputes frequently resulting in vitriolic and hateful verbal exchanges. Regrettably, there has also been police interventions for enforcement of these weekend visits with the mother due to confusion over the designated pick up place and time. As result of habitual friction and violence associated with these worrisome encounters between the parties, the father has been convicted of criminal charges and he is presently awaiting sentencing on at least one charge. Sadly, at least one encounter took place in front of the children who were in the back seat of car when their mother was subjected to disparaging name calling by the father. Not only have the insults been directed toward the mother, but also toward her current partner. On balance, find these violent events have been initiated by the father. For instance, A.L.H. was in the driveway of her friend when M.R.H. was driving by in his car (which it seems he was driving illegally). He pulled up in the driveway and initiated an offensive verbal exchange between himself and A.L.H.. Eventually, the local police were called and M.R.H. was charged criminally. completely reject M.R.H.’s explanation that he was attempting to confer with the mother about access difficulties. Rather, believe it was sickening attempt to lull the mother into yet another argument with him. [20] The father, as mentioned earlier, states the mother, as in the past, continues to make harassing phone calls to him, his sister and other family members and friends. note number of calls to former friend of M.R.H.’s, T.M., for instance, occurred before the most recent hospitalization of A.L.H.. Even though A.L.H. downplays the number of recent telephone calls, find repeated harassing phone calls have been made directly to M.R.H. and his former friend, T.R.. These more recent telephone calls, however, tend to be of harassing and intimidating nature with reference to burning down dwelling (T.R.’s) and with repeated use of invectives about lack of character, laced with accusations of disparaging rumors being circulated in the community about A.L.H.. Contextually, understand A.L.H.’s preoccupation with negative opinions of her to be part of her mental condition as explained by the Community Health Nurse, Susan Pirie, in her testimony. That said, fully understand the fearful effect these disturbing calls would have on any individual, especially in the wee hours of the morning. [21] Needless to say, these repeated harassing phone calls cannot be condoned by the Court, but it is far more significant for the Court to focus on any indicia of progress by A.L.H. since her recent hospitalization and the implementation of her current treatment plan. Thus, the more recent harassing calls undoubtedly, have had an unsettling effect and call into question the effectiveness of the treatment plan presently in place for A.L.H.. These calls, however, would not negatively impact on the day to day care and control of the children unless, of course, there is an escalation in other symptoms connected with A.L.H.’s mental disorder. In this sense, there is risk for D.R.M.H. and M.H.J.H., if they are placed in the primary care of their mother. Thus, this becomes an unfavorable factor for placement of the children with their mother. [22] Since the litigation, the relationship between the parties has deteriorated significantly, and therefore the Court questions the viability of joint custody arrangement between the parties. Apart from the tortuous incident in the driveway of the mother’s friend the circumstances of violence and intimidation by the father toward the mother and her current partner, are more than troubling for the Court. More broadly speaking, however, these incidents call into question the good judgment of the father and his overall ability to stay clear of violent and intimidating confrontations with A.L.H.. In my view, the father’s criminality and propensity to initiate violent encounters Superstore, local shopping mall, etc). between himself and the mother can only be seen as an unfavorable factor for the children to remain in his primary care. [23] Apart from the above concerns, the children seem to be dependent upon considerable support from their grandparents. When testifying about the puffer, the father did not acknowledge his responsibility, as parent, to ensure the puffer accompanies D.R.M.H. when he goes to his mother’s on the week end. Additional instances which illustrate parental irresponsibility are stated in detail below to provide the context for individual and specific concerns, but also to allow for recognition of the cumulative effect of these apparent parental failings. [24] First, D.R.M.H.’s hand was inadvertently slammed in the door as he was leaving to visit his grandparents. Accidents will happen from time to time, however, the father merely bandaged the child’s hand and sent him along. Apparently, D.R.M.H.’s hand was so severely bruised and swollen he could not write at school and, furthermore, his mother had to take him to the emergency department of the local hospital on the weekend. This was very painful injury for D.R.M.H.. [25] Second, D.R.M.H.’s’s poor supervision during New Year’s Eve while he was ostensibly in his father’s care. His father was having New Year’s Eve party and several guests had arrived at his home. It seems one of the guests was driving his car to the party when his car ran off the road fairly close to the father’s residence. In any event, the father left the home, and D.R.M.H., in order to pick up more friends to join his soiree. It seems no one in the house was left in charge of D.R.M.H.. Thus, just before midnight D.R.M.H. was observed by his grandfather outside in his pajamas, roaming around unsupervised in dark and cold circumstances. After the local police arrived to inquire about the car off the road, the grandfather, luckily, intervened and shepherded the child directly to his own home. D.R.M.H. was frightened by this time. Notably, D.R.M.H. was removed from the home without any questions being asked by M.R.H.’s party guests. D.R.M.H. stayed with his grandparents for the entire evening. The father called the grandparents around 1:30 am after rejoined the New Year’s Eve party. [26] Third, one of the boys recently won an award at school and his father could not even muster enough energy to visit the school for the presentation. The father does not appear to place high value on participation in school activities. [27] Fourth, D.R.M.H. and M.H.J.H. recently missed dental appointment. The grandparents made arrangements for the boys, along with their sister, to be transported for dental appointment. The father’s sole responsibility was to have the children next door at the appointed time, but this did not occur; rather the children missed their dental appointment ,and no valid explanation was presented to the Court for this except sleeping in late. [28] There are other examples ( boys missing school, etc. without a valid reason, at the whim of their father) described in the evidence which could be recounted here, but suffice to say individually and cumulatively these various incidents paint a picture of a parent who is unable to meet the needs of his children on a daily basis. have detailed the concerns raised by the mother in order to give examples of the grim circumstances facing these two young children. These concerns encapsulate conglomerate of parental missteps and deficiencies. These parental deficiencies cumulatively heavily militate against permitting the children to remain in the physical care of their father. [29] On the subject of drug use by M.R.H., make the following observations. Although counsel spent considerable time focussing on the father’s drug smoking habits and whether such drug usage occurred in front of D.R.M.H. and M.H.J.H., do not find this to be the most disturbing aspect of persistent and ongoing drug use by M.R.H.. Let me say, firstly, if a parent struggling at the poverty level is smoking drugs regularly, and financially supporting a drug habit, this will automatically divert from already meager funds available to adequately provide amenities for their children. In the present circumstances, my impression is that D.R.M.H. and M.H.J.H. are living in squalor, and this level of severe impoverishment is, at least, in part, worsened by the father himself as he continually diverts scarce funds to support his drug habit. Secondly, D.R.M.H. has an asthmatic medical condition yet the father continues to smoke drugs in the home. Smoking these drugs, in my view, may have already had, and will likely continue to have, an adverse effect on D.R.M.H.’s medical condition. It seems, to me the father has placed a higher priority on his intimate relationship with marijuana, and possibly other drugs, over his primary responsibility as protector of his son. Thirdly, the father has demonstrated foolhardy and high risk behavior as he has admitted to using drugs daily including using drugs while traveling to and from his employment. He works in dangerous trade in the roof repair business. Thus, his physical well being is compromised by his daily drug use, in my opinion. He does not appear to appreciate he is placing D.R.M.H. and M.H.J.H.’s short and long term care at peril. It seems to me, the persistent and daily use of marijuana has created malaise which operates as direct obstacle for the adequate provision of daily care by M.R.H. for D.R.M.H. and M.H.J.H.. Contrasting Parenting Plans: [30] The mother, who is cohabiting with new partner, states that her mental condition has stabilized with constant supervision and prescription medication. She has secured term employment through job search agency and hopes to secure full‑time employment with her current employer. She proposes to have the children in her care, in two bedroom apartment. She plans to keep them in their current school in the [name of place removed] area. If she continues her present employment, she has made arrangements for the boys to receive after school care at local child care centre. After she completes her daily employment she would pick up the children, and return home to spend the evening with them. She says there would be ongoing contact between the boys and their father. She proposes every second weekend as she too would like to participate in weekend activities with the boys. [31] The mother’s plan is well conceived; however, it is the execution of her plan which causes concern for the Court. Rhetorically, it must be asked if she can withstand the daily pressure of raising two active boys, especially when this is coupled with the ongoing strain of poor relations with the father. Also of concern to the Court is the mother’s past habit of consuming alcohol while taking prescribed medication According to her supervising nurse, Susan Pirie, the mother is now taking at least five drugs daily, and if she consumes alcohol excessively this will compromise her recovery, and thus find her parenting ability. [32] In juxtaposition is the current parenting plan of the father. He states primary care should not change as the children are doing fairly well. He says he is providing adequately for the boys and this arrangement should not be disturbed Furthermore, he asserts the local child protection agency have contacted him, but have discontinued their investigation. However, the Court, knowing full well the demands on local child protection agencies, takes absolutely no solace in the fact that they were called to the father’s home, but did not proceed with full investigation. Conclusions: [33] Lamentably, in the present circumstances the children are at considerable risk if placed in the primary care and control of either parent. D.R.M.H. and M.H.J.H. are emotionally close to both parents; however, am satisfied and find the father, through his uncaring, self absorbed and reckless actions, has compromised his emotional bond with D.R.M.H. especially. I, furthermore, find the father is not presently providing the physical amenities of life for these two growing boys. His type of parenting, if one can call it parenting, falls very short of the expectations of the court. find he offers substandard parenting which has and will continue to compromise the safety and over all development of D.R.M.H. and M.H.J.H.. It is next to impossible to envisage the short term and long term needs of these boys being met by the parenting plan of the father. And, although there will be challenges ahead for the mother, she appears to be more conscientious with her approach to parenting. She will have outside support from her own parents, plus support from her community through the after school program and the local protection agency. She has submitted that her current partner is source of support; however, the relationship is fairly short in duration and moreover the mother has history of short term relationships. Thus, cannot find this to be reliable source of support for the mother. On balance, however, even though the children will face risk while in the mother’s primary care, the risk is narrower than the risk facing them if they remain in the primary care of their father. [34] have also considered the agreement between the parties for the return of the children to their mother’s care once she received mental health treatment. While this is not binding or overriding factor, in custody dispute such as this, it is factor nonetheless. It is relevant here because A.L.H. has been the primary caregiver of these two boys from their very early age. Even though, from time to time, due to her recurrent mental condition, she has relied heavily on others ,including her parents, to assist with periodic care for the boys. The boys are familiar with her parenting style, and moreover they will at least be provided with basic amenities while in their mother’s care. [35] In my view, in the present circumstances, the Court must be focused on minimizing the risk for these two young boys. After all, it is their best interests which must be utilized as barometer to determine the most appropriate primary care arrangement for them, and not the wishes or preferences of either parent. See King v. Low (1985) 1985 CanLII 59 (SCC), 44 R. F. L. (2d) 113 (S.C.C.). Additionally, it must be remembered the Court need not choose the best parent, but rather the Court must determine which parent has put forth the most appropriate parenting plan to meet the short and long term needs of the children. See Gillis v. Gillis (1995) 1995 CanLII 4416 (NS SC), 145 N.S.R. (2d) 241. [36] Given the precarious nature of the well being of these two children, it would be advisable to review this matter in six months time. Nevertheless, the Court has grave misgivings about the operation of joint custody order in the face of violence and ongoing conflict between the parents. The court joint custody order does not appear to meet the requirements prescribed in Rivers v. Rivers, (1994) 1994 CanLII 4318 (NS SC), 130 N.S.R (2d) 219 (N.S.S.C.). Having said that, the Court has not been requested to vary the order to sole custody in favor of the mother. In the present circumstances, it is fitting to ensure the children are insulated, as much as possible, from ongoing conflict between the parents. Therefore, the transfer of primary care to the mother shall be conditional upon the fulfillment of several provisions and prohibitions outlined below. To clarify, should the parents be unable, or unwilling to, co-operate and comply with the court directives, the Court will consider a report of neglect under Section 24(2) of The Children and Family Services Act. The transfer from the father to the mother shall take place during the Easter weekend as this will be less disruptive for the children. [37] In the present circumstances, find under Section 37 of the Maintenance and Custody Act, on the balance of probabilities, the circumstances of D.R.M.H. and M.H.J.H. have deteriorated to the extent that the father is not providing daily amenities for them. Furthermore, his parenting abilities have slipped dangerously to level which compromises the emotional and physical welfare of them. Furthermore, find the father is suffering from malaise which has prevented him from providing “good enough parenting” to D.R.M.H. and M.H.J.H. and his malaise is, on the balance of probabilities, attributable to his prolonged, unabating and reckless use of drugs. find, based upon all of the evidence, the requisite change pursuant to Section 37 of the Act has been established. [38] In summary, the following order shall go forward: D.R.M.H. and M.H.J.H. are hereby placed in the day to day and primary care and control of A.L.H., effective Easter weekend on April 15th,2006 at 9:00 am. Primary care arrangements are contingent upon A.L.H. disclosing to her mental health care givers, preferably to Susan Pirie, the recent harassing phone calls made by her. Also, any alcohol consumption by her is to be reported. This is to take place before the children are transferred on April 15th, 2006. Primary care and access shall be reviewed by the court on or before September 30th, 2006. There shall be no direct contact whatsoever between the parties, and any contact necessary to facilitate access should be through third party, such as the grandfather, J.H.. M.R.H. shall enjoy reasonable access upon reasonable notice which may include access every second weekend, but it will not include overnight access unless and until there are suitable arrangements in place for D.R.M.H. and M.H.J.H. for example, food, water, lights, etc.). M.R.H. shall not be under the influence of illicit and non- medically prescribed drugs either immediately before or during access visits. M.R.H. shall ensure both children are not in the presence of smoke from marijuana or other substances. M.R.H. is prohibited from permitting D.R.M.H. and M.H.J.H. to travel in motor vehicle which is not duly registered and insured under the Motor Vehicle Act. Other reasonable access shall take place as the parties can agree upon from time to time. My gratitude is extended to counsel for their able assistance with this matter. Counsel for A.L.H. is kindly requested to prepare an appropriate Court order for signature. [48] Order accordingly. Corrine E. Sparks, J.F.C.

Although the mother initially had sole custody of the parties' two children, they were placed in the joint custody of both parents, with primary care and control with the father, when the mother was hospitalized due to mental health disturbances. When the children were not later returned to her care, the mother brought an application to vary the primary care arrangements, alleging that the children were not receiving suitable and appropriate parenting while in the father's care. The father, who lived close to the maternal grandparents and relied upon them extensively for the care of the children, questioned the mother's emotional and mental health and stability. The transfer of primary care of the children to the mother is conditional upon the fulfillment of several provisions and prohibitions, including the mother's disclosure to her mental health caregivers of any alcohol consumption and the recent harassing phone calls made by her; should the parents be unable or unwilling to cooperate with the court directives, the court will consider filing a report of neglect under the Children and Family Services Act; primary care and access will be reviewed by the court in six months time. The children were at considerable risk if placed in the primary care of either parent; the evidence showed that the father was unable to meet the children's needs on a daily basis; in addition to his questionable parenting judgment, his regular daily drug use in circumstances where the family lived in poverty and one child had an asthmatic medical condition showed that he placed a higher priority on his relationship with marijuana than his primary responsibility as protector of his children. Although the mother's parenting plan was well-conceived, the court questioned whether she could withstand the daily pressure of raising the children and noted her past habit of consuming alcohol while taking medication.

2_2006nsfc7.txt

nan IN THE SUPREME COURT OF NOVA SCOTIA IN BANKRUPTCY AND INSOLVENCY Citation: Herve (Re), 2008 NSSC 216 Date: July 7, 2008 Docket: 31951 Registry: Halifax District of Nova Scotia Division No. Sydney Court No. 31951 Estate No. 51-095527 IN THE MATTER OF THE PROPOSAL OF WILLIAM BLAIR HERVE LIBRARY HEADING Registrar: Richard W. Cregan, Q.C. Heard: June 26 2008 Written Decision: July 7, 2008 Subject: Application to be discharged from liability for student loans under Subsection 178(1.l) of the Bankruptcy and Insolvency Act. Summary: A school teacher owed approximately $20,000 in student loans. His wife works half time. They have two young children. They have extensive expenses for the care of their children and for transportation, he having to make daily round trip of 250 km to his school. Any surplus he might have would be minimal. They have reasonably frugal lifestyle. Issue: The Attorney General did not question his good faith in past dealings with his loans. However, it contested whether he has and will continue to experience financial difficulty so as to be unable to pay the debt. Result: It was held that he has such financial difficulty and was granted relief. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT’S DECISION QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET IN THE SUPREME COURT OF NOVA SCOTIA IN BANKRUPTCY AND INSOLVENCY Citation: Herve (Re), 2008 NSSC 216 Date: July 7, 2008 Docket: 31951 Registry: Halifax District of Nova Scotia Division No. Sydney Court No. 31951 Estate No. 51-095527 IN THE MATTER OF THE PROPOSAL OF WILLIAM BLAIR HERVE nan Registrar: Richard W. Cregan, Q.C. Heard: June 26, 2008 Present: Mark Zinck representing the bankrupt, William Blair Herve Michael Connor representing the Trustee, BDO Dunwoody Goodman Rosen Inc. Dwight Rudderham representing The Attorney General of Canada, on behalf of Her Majesty the Queen [1] The Applicant, William Blair Herve, asks for an order under Subsection 178(1.1) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, (BIA) that Subsection 178(1)(g) does not apply to his outstanding student loan debt. The application is opposed by the Attorney General of Canada. [2] In the course of the hearing counsel for the Attorney General advised that it does not question Mr. Herve’s good faith with respect to the loan. Accordingly, shall only review what find to be evidence respecting the other requirement under this subsection, namely whether his financial difficulty is so extensive that he will be unable to pay his liabilities under the loan. [3] Mr. Herve filed Consumer Proposal on July 25, 2001, which requires him to pay $300 per month. It was successfully completed. He received Certificate of Full Performance in October 2006. [4] His student loan debt including interest is now approximately $20,000. [5] He commenced his university education at St. Francis Xavier University in September 1989, and graduated with Bachelor of Science in Physical Education in May, 1997. Interspersed with these studies was time spent as labourer with the Nova Scotia Department of Highways and courses at the University College of Cape Breton. [6] Since September 1997 he has been employed as physical education teacher with We’koqma’q First Nation Elementary School in Whycobah which is located on Highway 104, approximately 125 km from Sydney. In the first year his salary was approximately $24,000. His gross annual salary is presently $50,874. He is now at the top of the pay scale for his position. [7] In 2001 he married Beverley Herve. They now have two children, daughter born in September 2004 and son born in November 2006. [8] His wife has job share position with Aliant in Sydney. She works every second week. She looks after the children during the weeks off. This position is permanent. Presently, there is no opportunity to return to full time work with Aliant. Her present annual salary is $16,272. [9] He says he does not have the ability to pay his student loan debt. The family expenses exhaust the family income. He has no credit, nor does his wife whose credit cards now have maximum balances. He worries about what would happen in emergencies, such as repairs for his car which he drives to work each day, 250 km round trip. [10] They bought their present home in May 2003, for $122,500. It was completely financed by mortgage with the Royal Bank. They had looked for less expensive home but could not find one in good condition. The less expensive homes on the market required extensive work. Neither of them have skills in this area. The monthly mortgage payment is $730. Taxes are another $175, heating another $125. [11] They live in Sydney rather than near his school. Mrs. Herve works in Sydney. It is better place to bring up their children. [12] They have two cars, one to serve as backup so that he can be confident he will be able to drive to school each day. Driving 250 km per school day is substantial expense, but do not see any reasonable alternative. doubt that there would be comparable work for Mrs. Herve in Whycobah. [13] There are number of credit cards in Mrs. Herve’s name which require minimum monthly payments in total of about $1000. [14] do not think there is anything extravagant about their life style. [15] The expenses for their children are substantial. They have day care during the week Mrs. Herve works. This will continue for several years. As children grow their reasonable requirements expand. [16] They might be able, if they could pay off their credit card debts and maintain an even more frugal life style find some surplus to pay toward the student loan debt, but cannot see that it would reduce it very much over the foreseeable future. [17] The BIA allows me only to make finding that Mr. Herve “has and will continue to experience financial difficulty to such an extent that (he) ... will be unable to pay the liabilities under the loan.” The debt in effect can either be cancelled or affirmed. No middle ground is available. [18] I think that allowing him a reasonably frugal family lifestyle, which is what he has, will not permit him to pay his liabilities for this loan. [19] Using the Superintendent’s Standards he may have a monthly surplus of about $170. It would take many years for him to contribute enough to significantly reduce this liability. [20] If I refuse this application, Mr. Herve will have to consider bankruptcy to eliminate this liability. [21] am satisfied that Mr. Herve does not have the resources to discharge this liability now, nor in the next several years. [22] He is entitled to relief under Subsection 178(1.1) of the BIA. [23] If costs are sought shall hear counsel. R. Halifax, Nova Scotia July 7, 2008

The applicant school teacher asked to be discharged from $20k in student loan debts under s.178(1.1) of the Bankruptcy and Insolvency Act. He had filed consumer proposal in 2001, which he completed successfully in 2006. He earned $50,874 (gross) per annum; was at the top of his pay scale; had two young children; and his wife worked half-time position at Aliant, earning $16,272 year. There were daycare costs when the wife worked, and the applicant's transportation costs were high (but reasonable). The wife had significant debts and no remaining credit; she paid around $1,000 month to service her cards. The applicant did not have any credit either. Their home had little, if any, equity. The AG agreed the applicant had acted in good faith, but contested whether he was (and would continue to be) unable to pay the debt. Application allowed. Permitting the applicant's family a reasonably frugal lifestyle, which the court found they had, would mean he could not pay off the loan. Using the Superintendent's standards, there might be a small surplus in the family budget, but it would take many years for the applicant to significantly reduce his liability. If the application were refused, he would have to consider bankruptcy.

e_2008nssc216.txt

J. SC 870/2002 2003 SKPC 19 IN THE PROVINCIAL COURT FOR SASKATCHEWAN AT SASKATOON CIVIL DIVISION BETWEEN: JOHN MORRISON -the Plaintiff -AND- SYDIA BROS. ENT. LTD. and MARVIN PROCYSHYN the Defendants Appearances: Mr. Morrison appeared for himself. Mr. Procyshyn appeared for himself. JUDGMENT T. WHITE, PCJ JANUARY 29, 2003 [1] This is an action in negligence arising out of a vehicle accident whichoccurred on December 3, 2001 at Avenue “C” and Circle Drive inSaskatoon. [2] number of the material facts in the case are not in dispute: low speed collision occurred in the turning lane at this location; tractor (without trailer) slowly inched up to Honda Corrolla automobile operated by the plaintiff and nudged it causing damage to the back bumper of the Honda on the driver’s side and some slight denting on the trunk lid of the vehicle; there was no damage to the tractor; the driver of the tractor and his wife did not see the automobile before or at the immediate time of the collision; the estimated cost for repairs is in the range of thousand dollars or so and all that the plaintiff seeks is the deductible of $700 plus costs of the summons and service costs in the proceedings. [3] The points of disagreement between the parties centered on the question of who is at fault as matter of law for the collision and the subsequent damage. The ultimate disagreement between the parties was over the issue of whether the defendant ought to have seen the plaintiff’s vehicle in front of him and therefore, have stopped his vehicle thus avoiding the collision. [4] The plaintiff testified that around 7:00 a.m. on this dark December morning he was driving on Circle Drive and had proceeded into the turning lane and was waiting for an opportunity to make left turn onto Avenue “C” when the tractor slowly collided with the back of his vehicle. He testified that there were no other vehicles in front of him at this point; he specifically denied cutting in front of the tractor unit prior to the collision. [5] The defendant testified that there was half-ton truck in front of his tractor unit in the intersection shortly before the accident occurred; the defendant’s wife was with him that morning and corroborated his version of the facts as to the presence of the half-ton truck and as to the fact that neither she nor her husband saw the Honda Accord until just after the actual collision when Mrs. Procyshyn told her husband that his tractor unit was nudging another vehicle that must be in front of them. [6] Mr. Procyshyn, his wife and Omer Houle, representative from Mr. Procyshyn’s employer, Sydia Bros. Ent. Ltd., each testified about the blind spots that exist for tractor trailer drivers. In particular they gave evidence of the two very difficult areas located along the passenger side in advance of the mirror along the engine hood/block and the area directly in front of the tractor. [7] This case raises issues pertaining to the burden of persuasion or proof in this civil matter and it also raised some issues pertaining to the application of the Highway Traffic Act S.S. c.H-3.1 in relation to the claim of negligence raised by the facts of this case. [8] The HIGHWAY TRAFFIC ACT applies to this case, specifically, the following: “44(1) No person shall drive vehicle on highway without due care and attention. (2) No person shall drive vehicle on highway without reasonable consideration for other persons using the highway. 48(1) The driver vehicle on highway shall: (b) on overtaking person or vehicle using the highway, pass to the left, unless: (i) he is approaching an intersection of highways at which he intends to make right turn or he is approaching an intersection of highways that he intends to cross without turning and the other person is making or has indicated that he is about to make left turn, in which case he may pass to the right; (3) After having overtaken and passed another person or vehicle using the highway, no driver of vehicle on highway shall move in front of the other person or vehicle until it is safe to do so.” [9] There are two possible ways that the accident could have happened in this case. The first theory is that the plaintiff had simply stopped his vehicle and was waiting until it was safe to proceed with the turn through the intersection when his vehicle was struck from behind by the defendant’s tractor; on this view, the defendant was inattentive, did not notice the plaintiff’s car in front of him, and thus the tractor collided with the car. The second theory is that the plaintiff quickly overtook and passed the defendant’s vehicle in close proximity to the intersection and therefore the plaintiff’s vehicle was lost to the defendant’s sight due to the blind spots on the right and in the front of the tractor unit. The cause of the accident under this scenario was the plaintiff ‘cutting’ in front of the defendant’s tractor. [10] The only material difference in the testimonies proffered by the plaintiff, the defendant and the defendant’s wife concerning the circumstances at the scene of the accident was the presence or absence of half-ton truck in front of the plaintiff’s vehicle when the collision occurred. This is an important difference because if there were vehicle in front of the plaintiff’s vehicle at the time of the accident then this would lend credence to the view that the collision occurred as result of the plaintiff ‘cutting in front of the tractor’. must say that found all of the witnesses to be quite believable; each witness to the actual occurrence actually believed that what they were relating was true and correct version of the facts as they perceived them to have transpired. [11] This is one of those rare cases were the scales of justice are evenly balanced. The scales do not weigh persuasively in the favor of either the plaintiff or the defendant based upon the oral evidence given by the witnesses who testified at the trial. I am simply unable to conclude that one version of the facts is correct and the other is incorrect. Each version contains an equally rational explanation for what transpired on the date in question. The physical evidence, taken together with the exhibits (consisting of diagrams and photographs), does not assist the court in reaching a determination regarding the issues of negligence and legal liability in this case because it is, at the end of the day, equivocal – i.e. it could support either version of the events related to the court by the plaintiff and the defendant respectively. Therefore, as matter of law, it does not support (or detract from) either version of the facts put forth by the parties. (See R. v. S.(T.) (1995) 1995 CanLII 3957 (SK CA), 98 C.C.C. (3d) 529 at pp. 556-557 and at pp. 552-553.) [12] For the foregoing reasons, I am not satisfied on a balance of probabilities that the plaintiff’s claim has been proven. On this basis, as matter of law, the plaintiff’s claim must be and is hereby dismissed with no order as to costs to either party. T. WHITE, PCJ

At issue in the negligence suit was whether the defendant ought to have seen the plaintiff's vehicle in front of him and stopped his vehicle to avoid the motor vehicle collision. The only material difference in testimonies was whether there was a half-ton truck in front of the plaintiff's vehicle when the collision occurred. HELD: The plaintiff's claim was not proven on a balance of probabilities. The physical evidence did not assist and the court was unable to conclude that one version was correct and the other incorrect.

5_2003skpc19.txt

2002 SKQB 125 Q.B.G. A.D. 2001 No. 1447 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: GARTH TREBLE and WENDY JACKSON PLAINTIFFS (DEFENDANTS BY COUNTER-CLAIM) and GOLDEAN ENTERPRISES INC. and P.T. APOTHECARY LTD. DEFENDANTS (PLAINTIFFS BY COUNTER-CLAIM) and P.T. ALCHEMY LTD., CABRI HOLDINGS LTD., 611601 SASKATCHEWAN LTD., CON PHARM LTD., GEOJACK ENTERPRISES INC., KEVIN HUDY PHARMACY LTD. and PARC HOLDING LTD. DEFENDANTS Daniel S. Tapp for the plaintiffs (defendants by counter-claim) Dana D. J. Schindelka for the defendants (plaintiffs by counter-claim), Goldean Enterprises Inc. and P.T. Apothecary Ltd. FIAT MacDONALD J. April 4, 2002 [1] On January 24, 2002, this matter was heard in chambers and I reserved on the issue of whether costs should be assessed against the plaintiffs for the following reasons:(a) The two motions which were served by the plaintiffs on the defendants returnable for January 24, 2002, were not filed at the Court House prior to the return date as required by The Queen’s Bench Rules; (b) The motion which was filed at the Court House returnable January 24, 2002, was not served on the defendants; and (c) Prior to the return date, the plaintiffs’ counsel advised the defendants that the two motions which had been served on them were not, in fact, going to proceed. [2] Because of the peculiar circumstances surrounding the three applications, the applications were dismissed. There was request by the defendants’ counsel to have the matter addressed by way of costs. [3] When asked counsel for the plaintiffs to speak to the issue of costs on the chamber date, he indicated in open Court that he was under extreme pressure and lot of stress lately with respect to this file and others and therefore had prepared three motions which were fairly similar to one another and that in his confusion he had filed some and not filed others. [4] Given Mr. Tapp’s representation as to the amount of stress that he was presently under, I do not believe it would be appropriate in the circumstances to assess costs against the plaintiffs over the conduct of their counsel or against counsel directly at this time. Accordingly, I leave this matter to be determined by the trial judge in the course of this action.

FIAT. The issue was whether costs should be assessed against the plaintiffs because the two motions served by the plaintiffs were not filed at the Court House prior to the return date as required by the Queen's Bench Rules; the motion filed at the Court House was not served on the defendants; plaintiff's counsel advised the defendants that the two motions which had been served on them were not in fact going to proceed. HELD: Given the lawyer's representation as to the amount of stress he was under, it would not be appropriate in the circumstances to assess costs against the plaintiffs over the conduct of their counsel or against counsel directly or at this time. The matter was left to the trial judge.

2002skqb125.txt

Date: 20000323 Docket: S.H. 1201-50342 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: MICHAEL STUART CLARKE and LAVERNA RUTH CLARKE RESPONDENT HEARD BEFORE: The Honourable Justice Walter R. E. Goodfellow in the Supreme Court of Nova Scotia on March 20th, 21st, 22nd, 2000 DECISION: March 22nd, 2000 (orally) WRITTEN RELEASE OF ORAL: March 23rd, 2000 COUNSEL: Helen L. Foote, Solicitor for the Petitioner Mrs. Laverna Clarke Personally/Respondent GOODFELLOW, J.: (Orally) [1] Michael Stuart Clarke, now 44, and Laverna Ruth Clarke, now 41, were married August the 30th,m 1980 and separated approximately 14 years later, March the 1st, 1995 at which time Mrs. Clarke was 37 and Mr. Clarke 39. [2] The Petition for Divorce was issued January the 5th, 1996 and it has taken over years to bring the matter to trial and over years since their separation. There have been number of Interim Applications and Interim Orders. [3] am satisfied that all jurisdictional requirements have been met and that there has been permanent breakdown of the marriage and therefore, Divorce Judgment will be issued forthwith. Ms. Foote, as the only counsel involved, is left with the responsibility of preparing the Corollary Relief Judgment. CUSTODY ACCESS [4] The parties have two children, Matthew Norman Ronald Clarke, born August the 2nd, 1983, now 16, and Mitchell Harris Clarke, born September the 28th, 1991, now 8. The parties entered into Partial Agreement and Minutes of Settlement signed the 15th of March, 2000 and it provides for joint care and custody arrangement for the children with their primary residence being with their mother and fixing her with the responsibility for their day to day care. The parties spell out in considerable detail their hopes and expectations with respect to the joint care and custody arrangement and then proceed to set out the access provisions. The Partial Agreement and Minutes of Settlement will be annexed to and incorporated into the Corollary Relief Judgment when issued. LEGISLATION DIVORCE ACT Spousal support order 15.2 (1) court of competent jurisdiction may, on application by either or both spouses, make an order requiring spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse. Terms and Conditions (3) The court may make an order under subsection (1) or an interim order under subsection (2) for definite or indefinite period or until specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just. (4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including (a) the length of time the spouses cohabited; (b) the functions performed by each spouse during cohabitation; and (c) any order, agreement or arrangement relating to support of either spouse. Spousal misconduct (5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of spouse in relation to the marriage. Objectives of spousal support order (6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of spouse should (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (d) in so far as practicable, promote the economic self‑sufficiency of each spouse within reasonable period of time. Priority to child support 15.3 (1) Where court is considering an application for child support order and an application for spousal support order, the court shall give priority to child support in determining the applications. MATRIMONIAL PROPERTY ACT [5] The parties were unable to accumulate any assets of consequence throughout their cohabitation and under the Partial Agreement and Minutes of Settlement they divided what was available. It is my understanding that the parties entered bankruptcy in 1986. The parties acknowledged that there is no real property and that they have effected satisfactory division of the personal property. Their Agreement in this regard will be matter of record by virtue of its incorporation in the Corollary Relief Judgment. EDUCATION, TRAINING, EMPLOYMENT BACKGROUND (A) Michael Stuart Clarke [6] Mr. Clarke gained grade 12 and proceeded to enrol in Saint Mary’s University in year Bachelor of Science and Geology Program. He graduated in 1979 and when his relationship began with Mrs. Clarke, he recognized career in Geology was not likely to be compatible with marriage and returned to University initially to seek M.B.A. Degree and soon changed that to Bachelor of Commerce Degree. Married in 1980 he struggled with the Bachelor of Commence Program for years and then entered the work force in 1982 with Atlantic Micro, remaining with them for about months and then with company called Micro Tech where he was the Educational Sales Rep for Nova Scotia and after years promoted to Educational Sales Manager. In 1985 he changed employment again, this time with Data Master but again in the computer field. This employment necessitated move to Saint John, New Brunswick and it turned out not to be positive employment experience and lasted only slightly more than one year. Mr. Clarke then started private consultation arrangement with firm which lasted for about months and then he took position at Acadia University as an System Analyst providing training where he remained for about one year. He then joined Future World in New Minas as the Manager for years and then with company called Epson Canada which was primarily dealing with printers and he stayed with them for about one year before entering an Independent Peer Partnership which lasted in the range of months and then he entered employment with Dalhousie University for approximately year. His next employment was with Compatible Computers in Dartmouth for years, then he attempted to work as consultant and set up his own group, Phoenix Consultancy, but the work was sporadic and it was, in his words, “feast or famine” and mostly “famine”. [7] He recognized it was necessary to increase his credentials and he was able through Unemployment Insurance to take training for five week course at St. Francis Xavier University in 1993 and in 1994 received diploma. In September, 1994 he commenced employment at the Akerley Campus part-time teaching computer systems and he would fill in. He remained in this field until he departed for Bahrain. He had difficulty while working in Community College making ends meet. There was union requirement of years before you could reach certain level of remuneration and almost simultaneous with the determination to go to Bahrain he was terminated. [8] Mr. Clarke’s contract with Daleel is dated April the 4th, 1998. It required him to be in London for training for week period during which his remuneration would be $2,500.00 U.S. and then he proceeded to Bahrain around the 15th of June, 1998 when salary post-training went to $5,000.00 U.S. per month and after month period it reached $6,000.00 per month U.S. The contract was for period of years and on visit to Canada, he received telephone call confirming that the company, Daleel, had serious cashflow problem and that the contract was at an end. At this point, he faced the dilemma that if he obtained any employment in Canada, he would have to pay Canadian income tax on the income he had for the one year period in Bahrain. He sought out employment and received contract from Documentum, Pleasanton, California July the 29th, 1999 where he is presently is employed. His salary is $6,250.00 U.S. per month and he is eligible for 10 per cent annual bonus. In addition, he may receive stock options. He presently qualifies for 500 shares at $14.50 per share. With the existing volatile market in technology shares, the present market value is $90.00 per share. All funds are in United States dollars. Mr. Clarke is entitled to exercise the stock option in August, 2000. (B) Laverna Ruth Clarke [9] Mrs. Clarke graduated from grade 12 in 1976 and attended Dalhousie University, 1976-77 and 1977-78. It was necessary for her to take year off work due to lack of financial capacity and while working at the Mariner Hotel as receptionist, she met Mr. Clarke. She returned part-time to Dalhousie in 1979-80 and they were married in the summer of 1980. [10] Mrs. Clarke obtained approximately 11.5 credits out of the necessary 15 for degree, however, her evidence that accept is that with the passage of time, the credit standing has probably been lost so that if she were to return to seek degree, it is quite probable that she would have to start all over again. [11] The first year of her marriage she had no employment and then in 1981-82, 1982-83 she had part-time employment with the Bank of Nova Scotia which ended in 1983 at which time she was employed at the Bank of Nova Scotia, Hollis Street Branch. She was without employment for years and in 1988 she was able to work terms at the Junior High School in Canning. During this period, the School Board paid for credit from Teacher’s College and she managed to obtain another university credit. She was employed in 1988-89 and 1989-90 and earned approximately $8,000.00 each year. Mrs. Clarke then drew U.I.C. for period of time and had for about months s.25 U.I.. However, she was off work in 1990 for approximately year and drew U.I.C. for period of time. After the birth of their son, Mitchell, in 1991she stayed home for about weeks and returned to term contract of approximately months. She was home another full year until 1992 when she became volunteer and was subsequently hired on contract. Her employment in September of 1993 was at approximately $25,000.00 per annum and then for 1994 approximately $29,000.00 per annum. Her Income Tax Return is indicated for 1996 to be $43,000.00 per annum, however, this included approximately $8,000.00 in either advances or accumulative vacation pay she had received the previous year and an additional $5,000.00 advances that has since crystalized in Judgment against her. She continued employment until April 1997 and has had absolutely no employment since April, 1997, period rapidly approaching years. INCOME HISTORY (A) Michael Stuart Clarke [12] have already traced Mr. Clarke’s employment and education/training record from the time of his graduation with Bsc. in 1979 and entry into this marriage on 1980. The court does not have specifics of his income for the early years of the marriage but obviously it was not of steady regular basis. Income Tax information has been provided from 1994 on as follows: 1994 $6,158.00 1995 $32,207.00 1996 $32,777.00 1997 $36,974.00 1998 $13,256.07 [13] The income he had in 1998 is from the Nova Scotia Community College and he has not yet filed his return. He expects refund. This represents his only taxable income in 1998 because he proceeded under his contract with Daleel to London/Bahrain and his non-taxable income for the balance of 1998 amounted to $36,500.00 U.S. funds. After $36,500.00 U.S. funds are converted at the rate of 1.4 to Canadian funds, is $51,100.00 for total 1998 income in Canadian funds of $64,356.07, bearing in mind that the $51,100.00 is non-taxable. [14] In 1999 he had his employment at the rate of $6,000.00 U.S. per month in Bahrain, to and inclusive July, 1999, approximately $40,500.00 U.S. non-taxable converted to Canadian funds equals $56,700.00. He had his interview with his present employer, Documentum, and the job offer of July 29th, 1999. His employment commenced approximately August 15th and his income under his contract would be basic, from August 15th to December 31st, 1999 inclusive, $6,250.00 U.S. per month times 4.5, $28,125.00. In addition, his 1999 W-2 earning summary lists bonus of $927.00. It appears that the bonus is paid in arrears and that the additional bonus shown on his February 15th, 2000 pay slip of $1,900.75 relates to 1999 giving him total bonus income of $2,827.75 which combined with his basic gives 1999 employment/bonus income totalling $30,952.75 plus the $40,500.00. Mr. Clarke also received moving allowance and Documentum wished him to net $5,000.00 to cover his moving expenses and therefore he received transfer/tax bonus grossed up to $8,643.04. This was one time payment meant to cover moving expenses. am satisfied moving expenses were incurred, although suspect he may have been able to pocket some funds, as have no documentation or specifics before me as to the actual amount he expended on moving personal effects etcetera from Bahrain to California. do note that the 1999 bonus portion of $1,975.00 is taxable in the year of receipt, 2000, and therefore should not be included in his 1999 income. [15] Converted to Canadian funds, his 1999 income is approximately $97,372.80. (B) Laverna Ruth Clarke [16] have already traced in her employment record the evidence with respect to her income and will comment on her income capacity and failure to obtain any employment income for almost three years in my summary of “circumstances”. Bray-Long v. Long, S.H. 1201-52449, 13th of January, 2000. The best advice Mrs. Clarke could have received in 1977 at the termination of her grant employment was to immediately seek out and start employment in whatever area and at whatever level was then available. DIVORCE AGREEMENT [17] The parties, as previously noted, separated March the 1st, 1995 and both expended limited resources on legal fees. One of the major difficulties in bringing resolution to their problems has been an unrealistic assessment by both of them of the financial resources available. The parties have not had any lengthy period of financial stability throughout their entire 14 years of cohabitation or since. [18] When Mr. Clarke indicated his imminent departure for Bahrain, the parties, without benefit of counsel, negotiated “Final Settlement” which was crystalized by both of them attending at the office of the Prothonotary of the Supreme Court on or about May the 13th, 1998 and filing what was labelled detailed Affidavit sworn by Mrs. Clarke, called Divorce Agreement. Each of them acknowledged the Agreement and it contains the usual provisions with respect to being full and final settlement. The provisions agreed upon with respect to child support will be dealt with separately and specifically under that heading. The approach of the court has been one of respect for agreements. Durocher v. Durocher (1992), 1991 CanLII 4237 (NS SC), 106 N.S.R. (2d) 215. [19] There is no legal requirement of party having independent legal advice. When the parties fail to direct their attention to significant feature, the court may address such omission, Durocher, above. Similarly, if there has been extreme emotional turmoil so that one can conclude reasonable person in the absence of such turmoil would have addressed specific concern, then in such an extreme case an Agreement is open to variation by the court. The court, even where it adopts such necessary course, will do so only to limited extent appropriate and intrude as little as possible on the clear intent the parties have exhibited in their Agreement and here they clearly wanted to finalize all matters, including spousal support. [20] The Agreement did not address the level of child support in accordance with the Federal Child Support Guidelines in effect, nor did it provide a limited capacity or practical retraining by Mrs. Clarke to facilitate employment. Quite possibly, s.15(3) of the Divorce Act would have been invoked, as the resources were not yet available to provide limited retraining assistance to Mrs. Clarke. Additionally, provisions such as reimbursement of Mrs. Clarke’s costs were undoubtedly predicated on Mr. Clarke’s belief that he was going to have years of high non-taxable income. [21] I conclude therefore this is an exceptional situation that requires some adjustment with respect to the Agreement reached by the parties and filed May the 13th, 1998. It must be acknowledged that if the Agreement contained level of child support consistent with the Federal Child Support Guidelines and had been in form acceptable to the Prothonotary Office, then quite probably the Divorce Judgment would have been granted as of that date and the Corollary Relief Judgment to which both parties agreed would also have been issued as of that date. There would not be any jurisdiction remaining open for the court to make limited realistic adjustment to their Agreement. CHILD SUPPORT [22] The Agreement filed May the 13th, 1998 provided for the then current child support payments of $850.00 per month as set out in the Interim Order of July, 1998 to continue with this amount to be increased to $1,100.00 per month as of July, 1998 until April, 2000. This was apparently an attempt to generally coincide with the father’s employment in Bahrain. The Agreement did provide if there was disruption in the father’s income, it would be adjusted to comply with the Federal Child Support Guidelines and after April, 2000, the child support payments were to revert to the formal level of $850.00 per month and again, to be adjusted in the event of any disruption or financial hardship for the husband. [23] There are other provisions which have some reservations the parties fully understood the terminology they were using but in any event, the Agreement required Mr. Clarke to repay back payments of child support in the amount of $6,600.00 to be paid in 17 monthly instalments of $388.00 per month, commencing in August, 1998. There is further balancing payment of $4,500.00 in 17 payments of $265.00 per month starting in July, 1998 and ending in April, 2000 which are not under the heading “child support” but under the heading “real property” and of course the parties had no real property so in essence find it is an increased contribution as part consideration for Mrs. Clarke’s waiver of spousal maintenance entitlement. [24] In addition, Mr. Clarke agreed to repay legal costs of $5,200.00 in 24 monthly instalments of $216.00 per month, commencing August, 1998 which is in the same category, namely partial consideration for her waiver. [25] Subject to checking the mathematics further, have adopted the figures advanced by Mr. Clarke’s solicitor as to what is outstanding. It is agreed that the 17 monthly payments of $388.00 per month that commenced in August, 1998 have been satisfied as of December, 1999. There is one $265.00 payment outstanding and four $216.00 payments outstanding and together these total $1,130.00. According to the schedule of payments to March, 2000, the arrears of child support quickly on the math of their Agreement is $4,356.25 leaving total outstanding of payments under their Agreement of $5,485.25. The Divorce Act requires priority be given to support of children and also to simplify the Corollary Relief Judgement to avoid any question of tax consequences, will direct this amount, $5,485.25 be payable by Mr. Clarke to Mrs. Clarke as arrears of child support subject to the further adjustment by application retroactively the Federal Child Support Guidelines. have concluded that Mr. Clarke has had capacity to pay greater than the agreed $850.00 per month child support increase to $1,100.00 per month and that consistent with the intention of their Agreement, there should be retroactive adjustment based upon Mr. Clarke’s income capacity since July, 1998. conclude for two months he ought to have paid $1,250.00, shortfall of $800.00 and then for twelve months, shortfall of $150.00 per month, an additional $1,800.00 per month and then further seven months shortfall of $309.00 per month, the sum of $2,163.00. Together they total an additional $4,763.00 retroactive child support. Mrs. Clarke wishes me to go back and assess what she considers is arrears of child support from the date of separation. am not satisfied that arrears, other than those that have already addressed, have been established in the evidence. [26] fix Mr. Clarke’s income for the purposes of child support at basic of $6,250.00 per month and bonus feature of $625.00 per month, total of $6,875.00 U.S. funds. have reflected on the fact that Mr. Clarke’s employer pays what appears to be approximately $6,000.00 year for medical and other benefits separate from the post tax deductions for long term disabilities, etcetera, paid for directly by Mr. Clarke. The company’s portion appear on his statements as FL-EX credits. The end result is that he pays an additional approximately 38 per cent of $6,000.00 in U.S. income tax for benefits that are substantially provided in Canada through general taxation, indirect taxation and consumption taxation. The question arises whether or not for purposes of fixing his income for the Federal Child Support Guidelines to be adjusted for all or part of the direct income tax obligation incurred on the $6,000.00 taxable benefit. On balance, have concluded the evidence advanced in this case does not warrant any adjustment. Accordingly, his income is fixed at $6,875.00 U.S. per month, an annualized rate of $82,500.00, converted to Canadian dollars at the present currency rate of 1.4 equals $115,500.00 which calls for payments effective the 1st of April, 2000 at the monthly rate for two children of $1,409.00 per month. The Order may be drafted to provide for payments that coincide with his pay periods. [27] The evidence discloses cost of close to $500.00 U.S. per annum for the transfer of American funds to Canadian funds to Canada by draft. It is my strongest recommendation that Mrs. Clark open up U.S. funds bank account in Canada and advise Mr. Clarke of the particulars of that account. Mr. Clarke should explore with his employer the possibility of direct deduction in U.S. funds from his pay at the appropriate level on his pay periods payable direct to Mrs. Clarke’s U.S. account in Halifax. If this is not possible, then he should organize post-dated cheques in U.S. funds that she could deposit to her account in timely fashion. There will obviously be some discrepancies of minor nature in relation to conversion from U.S. to Canadian funds and the obligation of Mr. Clarke is to make, if necessary, any appropriate adjustment to comply with this Order which is in Canadian funds. [28] Mr. Clarke indicates that if Mrs. Clarke executes Release of Claim to Exemption form 8332, he can obtain some additional tax benefit with respect to the children without prejudice to Mrs. Clarke and on that basis urge her to accommodate Mr. Clarke. The parties must do everything humanly possible to increase the limited resources available as in the final analysis, such will be directly or indirectly beneficial to the children. ACCESS COMMUNICATION [29] The partial Minutes of Settlement provide that Mr. Clarke will pay and maintain an Internet account for his children which will permit communication between the father and the children and the children with their father. When the children in the exercise of their access are with their father, they shall be permitted reasonable telephone communication with their mother at their father’s expense. MEDICAL /DENTAL [30] Mr. Clarke in the course of his evidence acknowledged that he has taken out plans through employment to provide coverage for the children and the Corollary Relief Judgment shall contain provision to the effect he shall maintain such coverage while it is available through his present or in the future alternate employment. The parties should work out advantageous procedure to follow which would be for the mother, if at all possible, to file direct claims. The mother has limited resources and every effort should be made to adopt timely reimbursement to her for expenditures in this regard. Mrs. Clarke should not embark on any major dental expenditures without checking with the father and ascertaining the extent of coverage and determination of how the portion not covered is to be addressed. Mr. Clarke should, if it is available, provide Mrs. Clarke with whatever booklet or information is available on the plan and any information bulletins that show any alteration to the plan. LIFE INSURANCE [31] Mr. Clarke indicates that he has $150,000.00 worth of life insurance available through employment which provides 80 per cent coverage for his children and 20 per cent for Ms. Jessup, whom he describes as his common-law spouse. The entire amount available through his employment to the extent of $150,000.00 should be designated with his children as beneficiaries and their mother as trustee. The retention of life insurance should be requirement in the event it is available through any subsequent alternate employment. The children should remain beneficiaries so long as each child remains child as defined in the Divorce Act. Should Mr. Clarke wish to confer term insurance or any other benefit upon Ms. Jessup, he is certainly free to do so after meeting the priority of providing for his children. Mr. Clarke will obtain confirmation in writing of compliance with this direction and provide the same to Mrs. Clarke within 60 days and thereafter annually on or before the 1st of June in each year, commencing the year 2001. ACCESS COSTS [32] Mr. Clarke’s budget estimates $4,800.00 U.S. airplane costs plus additional costs of $83.00 per month for holidays with his sons. His budget also outlines indebtedness which to some extent is related to previous access costs and it therefore represents some duplication. Access costs, as agreed between the parties, are entirely and solely the responsibility of Mr. Clarke. He should not incur expenses of this nature unless he has satisfied all arrears and all financial obligations for the children as required by the Corollary Relief Judgment. In other words, he must keep himself current with respect to child support. His use of credit card for access and other expenses is entirely his personal choice, however, it is very clear that these parties have never had any financial stability in part because they far too readily accessed credit based on future expectations of capacity that have never been realized and they would be wise to cease utilization of credit for short term relief. Doing so in the long run imperils the ability to provide properly for the children. [33] In the course of her evidence and filed material, Mrs. Clarke acknowledged that she has incurred substantial indebtedness since separation, including $500.00 to Eaton’s, $6,000.00 to Revenue Canada, $2,800.00 to AVCO, $3,200.00 arrears of rent, $5,200.00 Judgment reference advance of salary. These total $17,700.00 and there are other outstanding debts for telephone bill, power bill, and her Statement of Financial Information includes debt payments to Visa and Canadian Tire. Undoubtedly, some of these creditors are hovering to attach any spousal entitlement due to Mrs. Clarke. This fact is not deterrent or limitation to her entitlement but does present practical problem of providing her with relief. Mrs. Clarke is adamant that she does not wish to enter bankruptcy again and that is entirely her decision and the decision that might be taken by one or more of her creditors. [34] Mrs. Clarke has tended to her own personal needs since 1997 from child support payments, the Child Tax Credit and by incurring debt. She has failed to make any reasonable effort to provide otherwise for herself and has attempted to live at totally unrealistic level that was not sustainable during their cohabitation and is certainly not now sustainable, nor is there any obligation on the part of Mr. Clarke to provide reasonable support in all the “circumstances” that would address her indebtedness and perceived entitled lifestyle. The best she can do is take whatever employment is available and to develop hopefully reasonable level of self support. [35] There are two other bills that should be noted. The first with respect to the telephone bill, there is disagreement between Mr. and Mrs. Clarke as to what responsibility he assumed for the telephone account. accept his evidence that he did not give Mrs. Clarke license to utilize it for every purpose, however, he did indicate he would reimburse her for calls facilitating communication with the children and for reasonable emergency calls and fix the amount payable by Mr. Clarke at $200.00 to be paid within 60 days directly to the telephone company. [36] Mr. Clarke, in his evidence, indicated that he would be filing his 1998 Canadian Income Tax Return and he has limited taxable income. He had $1,797.90 tax deducted and in all probability he is entitled to that by way of refund. Whatever refund is available to him is to be frozen by the Corollary Relief Judgment and when payable, paid to Mrs. Clarke against the arrears of child support. Mrs. Clarke will probably have yet further indebtedness to Revenue Canada for 1998 because Mr. Clarke had at that time the Interim Order which pre-dated May the 1st, 1997 and therefore, the Child Support Guidelines Income Tax change probably did not take place until May the 13th, 1998 when the parties altered the level of child support. simply point out possible difficulty in this regard and also acknowledge that Mrs. Clarke felt Revenue Canada might waive something in the vicinity of $1,800.00 arrears of interest. In any event, there is no capacity through Mrs. Clarke’s limited entitlement to retraining assistance or child support for addressing any of her indebtedness. MRS. CLARKE UNIVERSITY [37] Mrs. Clarke had unrealistic expectations of the marriage. She stated she wanted home, children, dog, etcetera, and those were never achievable throughout cohabitation, as the parties never had any degree of financial stability, nor did they accumulate any assets. Mr. Clarke entered the marriage with his university degree but did attend attempting to upgrade, however, in the totality of circumstances, she has neither the entitlement nor are the resources available for her to return to University and obtain B.A. and Bachelor of Education Degree. She was entitled to 50 per cent of their assets at the time of separation and 50 per cent of nothing unfortunately remains nothing and she is left with an unaddressed need for some retraining assistance geared for employment. THIRD PARTY [38] Both Mr. and Mrs. Clarke are entitled to enter into whatever personal relations they wish but in so doing they must recognize the priority is in relation to their children. Mr. Clarke, who is not yet on his feet financially, has obligations arising out of the Corollary Relief Judgment that will be issued and he must recognize the priority of meeting those obligations. His capacity will likely be diminished because the evidence seems to indicate that Ms. Jessup has no major income capacity or assets and simply restate that any obligations he assumes in carrying forth his intention to cohabit and remarry will not provide any excuse or justification for non-compliance of his priority obligations to his children. SPOUSAL SUPPORT [39] adopt the approach contained in Bray-Long v. Long, above, setting out the detailed examination of the Divorce Act and spousal entitlement and proceed to review in the broadest sense the “circumstances”. 1. The parties were young students on the entry into marriage. Neither had any financial resources. Mrs. Clarke, prior to entry into the marriage, found it necessary to take year off and work as receptionist in order to financially return part-time to university and Mr. Clarke who already had his Bsc. degree attempted to pursue additional university education without success. 2. Section 15.2(4)(a). The parties cohabited for 14.5 years which is fairly lengthy period of time, although they were both relatively young at the time of separation. 3. Mrs. Clarke, at the time of separation was 37 and she is now 41. Mr. Clarke was 39 at the time of separation and is now 44. 4. Work Record As set out in detail the employment record and educational background of both parties and in summary, Mrs. Clarke spent several years out of the workforce. find her absence from the workforce did not occur as direct agreement between the parties. It did occur in part due to the moves required by Mr. Clarke to seek remunerative employment. Neither Mr. Clarke nor Mrs. Clarke brought any assets into the marriage and while Mr. Clarke was employed at numerous jobs throughout cohabitation, they were not ones that produced any financial stability for the marriage. Mrs. Clarke’s absences from employment eliminated any real financial contribution by her to their marriage for lengthy periods. 5. By 1986, the parties had financially achieved debts and little else. Mrs. Clarke made reference to her student loans and infer that Mr. Clarke also had student loans and that all of their then indebtedness was wiped out by their bankruptcy. 6. Section 15.2(4)(b) of the Divorce Act. While Mr. Clarke did assist with some housework, cooking, etcetera, and he did in the latter stages of their cohabitation participate to some extent in the parenting of the children. Nevertheless, the majority of the child rearing functions were performed throughout cohabitation by Mrs. Clarke. While Mrs. Clarke’s child rearing was contribution to the family, it had negative effect on their financial stability, as they simply could not survive on Mr. Clarke’s unstable limited income. 7. Section 15.2(4)(c). have already reviewed in some detail the final settlement of their Divorce Agreement and concluded that limited departure to address the practical retraining for possible employment was overlooked and that it is appropriate to intrude on their intended final settlement to that limited degree. 8. Neither party materially benefited from the years of cohabitation with the very limited exception that Mr. Clarke did to some extent improve his computer related skills. It must be acknowledged that he also made advances in his computer level of skills post separation and probably to much greater degree during that latter period. 9. Mr. Clarke’s employment record was unstable in part due to “personality clashes”, “power struggles”, etcetera. 10. While it is true Mrs. Clarke had some employment in the $30,000.00 range, there is measure of artificiality to employment that is achieved not necessarily in the open marketplace but through volunteer work and relying on grants from Government. This is not to demean Mrs. Clarke, who find to be an intelligent capable person, but unfortunately with respect to employment, she has set her sights, initially at least, far too high. 11. Not only did Mrs. Clarke fail to make any reasonable effort to seek realistic employment from 1997 to date, she did not even take advantage of the computer provided some time ago by the father to their children. She advises the court she has no computer skills or typing whatsoever. 12. As said earlier, Mrs. Clarke has for approximately three years looked after all of her own needs from child support, the Child Tax Credit and incurring indebtedness, course that ought not to have prevailed and which cannot continue. [40] Weighing carefully the foregoing, conclude that limited assistance is reasonable, necessary and appropriate. Mrs. Clarke’s entitlement is not one for any continuing spousal support. Although there is no direct evidence as to the financial requirement that is probably necessary for retraining, the parties do not wish any further delay and I have simply drawn upon experience in concluding that a lump sum non-taxable retraining allowance in the amount of $6,500.00 should be made available by Mr. Clarke for this purpose. [41] As has been stated on many occasions, most recently in Bray-Long v. Long, above, at p. 15: In interpreting the Divorce Act, we have the clear guidance of Justice McLachlin Moge v. Moge, 1992 CanLII 25 (SCC), [1992] S.C.R. 813; 145 N.R. 1; 81 Man.R. (2d) 161; 30 W.A.C. 161; {1993] W.W.R. 481; 99 D.L.R. (4th) 456; 43 R.F.L. (3d) 345, at p. 396 [R.F.L.]: It seems to me important to emphasize that this is, first and last, case of statutory interpretation. It is interesting and useful to consider how different theories of support yield different answers to the question of how support should be determined. However, in the end the judge must return to what Parliament has said on the subject. [42] In addition, we have Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 44 R.F.L. (4th) which will not incorporate at length but merely refer to Justice McLachlin at p. 26: It is not question of either one model or the other. It is rather matter of applying the relevant factors and striking the balance that best achieves justice in the particular case before the court. [43] Messier v. Delage, 1983 CanLII 31 (SCC), [1983] 35 R.F.L. (2d) 337 is no impediment to structuring the retraining allowance in the manner am about to propose. Messier v. Delage was based upon the 1968 Divorce Act and two major changes took place in the 1985 Divorce Act. First, the 1985 Act, for the very first time, s.15(5) makes it clear: In making an Order the court shall take into consideration the condition, means, needs and other circumstances of each spouse and of any child of the marriage and then set out, including three specific factors: (a) the length of time the spouses cohabited; (b) the functions performed by the spouse during cohabitation; and (c) any order, agreement or arrangement relating to support of the spouse or child. [44] This replaced the former s. 11 where the court, upon the granting of Decree Nisi may, if it thinks it fit and just to do so having regard to the conduct of the parties and the condition, means and other circumstances of each of them, proceed to make Spousal Support Order. [45] In addition, in the 1985 Act, for the very first time, objectives for an Order of Spousal Support were set out. [46] The second major statutory change brought about by the 1985 Act was in relation to the now existing s.15(4): Terms and conditions. The court may make an order under this section for definite or indefinite period or until the happening of specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just. [47] Contrast this with the former 1968 provision of 12(b): Impose such terms, conditions or restrictions as the court thinks fit and just. [48] For the first time, there is expressed statutory authority for definite spousal support term. [49] Interestingly, the Supreme Court of Canada in Bracklow made no mention of Messier v. Delage. [50] Surely, if definite term unrelated to any special event or self sufficiency can be ordered for sick spouse, one can be ordered for healthy spouse. [51] The training allowance of $6,500.00 shall be put in place by Mr. Clarke in the month of August, 2000. If necessary, he will have to arrange financing. It is anticipated, however, that he will likely have the opportunity to exercise the stock option and subject to the volatility of technical stocks and the specific stock in question, he should, by exercise of the option and disposal of the stock, secure sufficient capital gain that will permit setting aside $6,500.00 Canadian in trust for Mrs. Clarke. Mrs. Clarke is to explore whatever training she wishes, be it at community college, typing course, computer course, hospitality industry, care persons’ program such as in Dorey v. Dorey, 1998 CanLII 5944 (NS SC), [1999] 44 R.F.L. 383; (1998), 172 N.S.R. (2d) 75, etcetera, and provide Mr. Clarke with the specifics of her requirements for such retraining and payments out of the retraining fund shall be made directly to any school or agency providing such training in accordance with their requirements, plus whatever limited direct payment may be necessary to Mrs. Clarke for books and accessories. Mrs. Clarke will have until the 1st of September, 2001 to utilize this training allowance and what, if any, funds then remaining with any accrued interest as of the 1st of September, 2001 shall be turned over to her. Mrs. Clarke’s entitlement to spousal support will terminate immediately she has received the total benefit of the $6,500.00 retraining fund and in the event that Mr. Clarke reneges, satisfaction of her spousal entitlement will be subject to further direction of the court. [52] In summary, Mr. Clarke has agreed to certain obligations in relation to the children covering medical/dental coverage, life insurance, extra curricular activities, allowances and if possible, laser printer for their computer. Additionally, he owes arrears of child support totalling $10,248.25 and direct payment to the telephone company of $200.00. have already directed that any income tax rebate he is entitled to in Canada shall be frozen for credit to these arrears. In the meantime, commencing the month of April he shall pay $500.00 per month towards the arrears and in the month of August the outstanding balance of his obligation shall take priority from the sale proceeds of his stock option after setting aside what is reasonably required by way of capital gains tax and the trust fund for Mrs. Clarke’s retraining allowance. Hopefully, this will permit the retirement of all the obligations and leave only the ongoing continuing obligations relating to the children. J. Case No. Vol No. MICHAEL STUART CLARKE PETITIONER and LAVERNA RUTH CLARKE RESPONDENT Justice Walter R. E. Goodfellow Halifax, Nova Scotia File No. S.H. 1201-50342 LIBRARY HEADING DATES HEARD: March 20th, 21st, 22nd, 2000 DECISION: March 22nd, 2000 (Orally) WRITTEN RELEASE OF ORAL: March 23rd, 2000 SUBJECT: SPOUSAL ENTITLEMENT TERMS SUMMARY: Mr. Clarke, now 44, and Mrs. Clarke, now 41, married and cohabited for approximately 14 years. He was 39 at the time of separation and Mrs. Clarke was 37. Long history of relatively short terms of employment and several moves to take employment. Mrs. Clarke, grade 12, and some university courses but no practical skills or training. Remained at home for several years even before their first child. Two children now 16 and 8. Mr. Clarke entered contract to work in Bahrain. Parties under pressure and in rush entered detailed Separation Agreement and both attended at Prothonotary Office to file same May 13th, 1998. It was in the form of an Affidavit sworn by Mrs. Clarke and it did not provide quite the proper level of child support in accordance with the Federal Child Support Guidelines. It did provide waiver of spousal support entitlement. Concluded rare occasion that omission of any retraining assistance for Mrs. Clarke should be addressed. Calculated arrears under their Agreement and adjusted same for child support resulting in arrears of child support of $10,248.25. Mrs. Clarke for the past years made no reasonable efforts for employment, developed no skills of practical nature and attended to her needs from child support payments, Child Tax Credit and incurring debt probably in the magnitude in excess of $20,000.00. Parties had entered bankruptcy during course of marriage and no assets or savings or pension entitlement at the time of separation or acquired since. Both parties unrealistic financially. Mr. Clarke now has employment in Computer Industry in California earning Canadian $115,500.00. Child support based on Guideline $1,409.00 per month. Majority view in Messier v. Delage no longer valid due to statutory change s.15(4) of the Divorce Act and Bracklow. Ordered establishment of retraining fund in the amount of $6,500.00 with direct payments to institution or whatever retraining in hospitality industry, typing, computer, bookkeeping, teacher’s assistant, health care assistant, or whatever Mrs. Clarke may choose. Numerous additional provisions requiring life insurance, medical/dental coverage, etcetera. Limited spousal entitlement to terminate on completion of retraining allowance or transfer of balance of outstanding to Mrs. Clarke on 1st of September, 2001, whichever occurs first. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT’S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS COVER SHEET.

The parties were married for 14 years and separated in 1995, entering into a detailed Separation Agreement in 1998. The two children of the marriage are 16 and 8 years of age. There was a long history of relatively short terms of employment and several moves to take employment. The respondent had a grade 12 education and some university courses but no practical skills or training. For the past 3 years, the respondent had made no reasonable efforts for employment, developed no skills of a practical nature, and derived her income from child support payments and the Child Tax Credit and by incurring debt in excess of $20,000.00 The parties had entered bankruptcy during the course of the marriage and had no assets or savings or pension entitlement at the time of separation or acquired since. The petitioner now earned an annual salary of $115,500.00. The Agreement did not address the level of child support in accordance with the Federal Child Support Guidelines, nor did it provide for practical retaining by the Respondent to facilitate employment. This was an exceptional situation that required some adjustment to the Agreement reached by the parties. The court ordered the establishment of a retraining fund of $6,500.00 with direct payments to whatever institution the Respondent may choose. Limited spousal support was to terminate on the earlier of completion of the retraining allowance or transfer of the balance of the outstanding to the Respondent on September 1st, 2001. An adjustment was also made to account for arrears in child support and child support payments.

4_2000canlii2633.txt

nan D.I.V. A.D. 1999 No. 219 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA RESPONDENT Gerald B. Heinrichs for S. W. S. W. Timothy Stodalka for C. J. S. respondent JUDGMENT GUNN J. May 3, 1999 [1] S.W.S. and C.J.S. married September 21, 1996 and separated April 19, 1999. They each seek interim custody of their son, W.S.S., born October 10, 1997. [2] Because of the significant contradictions in the evidence filed by S.W.S. and C.J.S. relating to each other and to the other's abilities and shortcomings as parents viva voce hearing was held to assist in determining questions of credibility. [3] S.W.S. alleges that C.J.S. is clinically depressed and addicted to alcohol. He says she attempted to commit suicide on two occasions: May of 1998 and April of 1999. Additionally he says she stays out very late in the bars, attends the Apollo motorcycle gang's clubhouse, and that she uses narcotics including crack cocaine. [4] C.J.S. alleges that S.W.S. is an abusive man with an alcohol problem. She says he drinks regularly to excess, to the point of losing consciousness. She says his abuse is directed at her and at strangers. She says he is also regular user of marihuana. She says S.W.S. and most of his extended family are heavy smokers, to the point that it is not healthy for W.S.S. to be in their home. ISSUESA. Interim Custody/Primary ResidenceB. AccessC. Interim Child Maintenance Re: 1. Interim Custody/Primary Residence [5] C.J.S. is 31 years of age and is employed as unit secretary at the Regina General Hospital. She remained at home with W.S.S. for the first year after his birth and then returned to work at the hospital. Until April 15 of this year C.J.S. worked variety of shifts, but she now works days one week and days the next from 8:00 a.m. to 4:30 pm. [6] C.J.S. suffered from post partum depression following W.S.S.'s birth. She said she was feeling overwhelmed, the marriage was in trouble, she felt hopeless and thought the only way she could get away from S.W.S. was to die. She attempted to commit suicide May 1, 1998. She was under the influence of alcohol at the time, and she parked her vehicle on railway track. She was not injured, but ultimately was convicted of driving while over .08 as result of this incident. She was also hospitalized for approximately weeks in order to receive psychiatric assistance. [7] C.J.S. has received assistance from her psychiatrist, Dr. Beattie who says C.J.S. is now unlikely to have any further suicide attempts in the future. Dr. Beattie says C.J.S. responded well to treatment in hospital and worked cooperatively with counselling. After discharge from hospital C.J.S. attended rehabilitation course at Myer's Centre. Dr. Beattie expressed the opinion that C.J.S.'s psychological state now is quite stable and she is capable of caring for her son. [8] Rod McLeod, medical social worker with the Regina Health District also had the opportunity to work with C.J.S. while she was in hospital and thereafter on periodic basis. He says C.J.S. was able to regain sense of her own self worth and self image during her hospitalization. She came to grips with her alcohol abuse and took advantage of rehabilitation at Alcohol and Drug Services. He said W.S.S. was with C.J.S. almost every afternoon during her hospitalization and he observed strong bond between mother and son. [9] Sally Elliott, perinatal nurse/counsellor employed by the YMCA has known C.J.S. since she began attending prenatal classes in 1997. She is aware of C.J.S.'s post partum depression and says C.J.S. attended their group session for post partum depression. She describes C.J.S. as being honest and forthright concerning her illness and says C.J.S. strives to be the best mother she can be. She has observed C.J.S. with W.S.S. at their group sessions and says their relationship is caring, supportive, stimulating and safe. She sees all the attributes of an excellent parent in C.J.S.. From her observations she says C.J.S.'s illness does not impact on W.S.S.'s quality of life in negative way. [10] C.J.S. has also filed affidavits from her sister L.P. and her friend M.B. who are both supportive of C.J.S. and her parenting skills. C.J.S. says her support network includes her mother and everyone who has filed affidavits in support of her application. [11] In response to S.W.S.'s allegations, C.J.S. denies she spends time at the Apollo clubhouse, denies she uses illicit drugs, and denies she is abusing alcohol. She further denies she attempted to commit suicide in April, 1999. She says she has taken treatment for her psychiatric problems, and is currently taking some medication prescribed by Dr. Beattie. She voluntarily submitted samples of her bodily fluids for an evaluation and she is drug and alcohol free. She also denies that S.W.S. was the primary caregiver for W.S.S. prior to their separation. She says she has been W.S.S.’s primary caregiver, and stayed home with him for the first year of his life. S.W.S. and C.J.S. separated in January 1999 for 11 days, and she says she had W.S.S. for five of those days. When she was hospitalized in May of 1998, W.S.S. spent most afternoons with her at the hospital. Since their separation April 19, 1999 C.J.S. has only been permitted to see W.S.S. on two occasions for total of eight hours by S.W.S.. [12] C.J.S. continues to live in the same apartment occupied by the family prior to separation. If awarded interim custody, or if W.S.S.'s primary residence is with her, she proposes to utilize the services of the Regina General Hospital Daycare and to provide S.W.S. with access on his three days off each week. [13] S.W.S. is 32 years of age and is currently employed at Ipsco on shift work. He works days, nights, has partial sleep day and has days off. [14] He and W.S.S. are currently living with S.W.S.'s parents, P.S. and B.S. B.S. also works at Ipsco, and P.S. works six hours per week with Hallmark Cards. S.W.S. says W.S.S. is very close to P.S. and that P.S. is prepared to care for W.S.S. when he is working. [15] P.S. says she is close to her grandson and is prepared to care for him. She says they have pleasant home and that in their home W.S.S. can maintain the same routine all day. He need not go to babysitters or to other caregivers. [16] S.W.S.'s friend C.K. also attests to P.S.'s care of W.S.S.. [17] S.W.S. denies being an habitual user of marihuana, but admits he is casual user. He denies he has problem with alcohol. Rod McLeod indicated in his materials that when he was working with C.J.S. he attempted to work with S.W.S. too. S.W.S. allegedly admitted to him that he was heavy user of alcohol and drugs, but he did not see this as problem. S.W.S. also apparently acknowledged that he had suffered numerous blackouts. S.W.S. denies having this conversation with Rod McLeod. He does say, however that on couple of occasions he wet their bed—either because of alcohol as alleged by C.J.S. or "possible pulled muscle" as indicated by S.W.S.. (c) Conclusions [18] I have concluded W.S.S.'s primary residence should be with C.J.S.. Based on the information before me I believe C.J.S. has always been W.S.S.'s primary caregiver. She remained at home with him for his first year of life. She says, and I accept that she was responsible for W.S.S.'s day to day needs, his health care, and his child care. S.W.S. agrees that C.J.S. organized the babysitting, but says he was involved as well in W.S.S.'s health care needs. He was, however, unable to name W.S.S.'s pediatrician. [19] W.S.S.'s babysitter, A.F. indicated that in her view C.J.S. was the primary caregiver. She also indicated her view of S.W.S. as being hostile and angry man. She said W.S.S. was always happy to see his mother and he did not exhibit this same emotion if S.W.S. came to pick him up. C.J.S. called regularly during the day to check on his welfare. [20] have no doubt that P.S. is capable of caring for W.S.S. and has indicated her willingness to do so, but she is not to be preferred over C.J.S.. do not accept that S.W.S. has had or will have any significant role in caring for W.S.S.. [21] C.J.S. continues to live in the same home occupied by the parties prior to separation. If it was satisfactory to them as an intact family unit it is satisfactory now. [22] am satisfied that C.J.S. has taken steps to deal with her psychological and psychiatric difficulties. There is independent evidence of this from Dr. Beattie, Sally Elliott and Rod McLeod. note S.W.S.'s total disregard of her well being on the date she did attempt to commit suicide. He acknowledges that he received call from the Regina City Police at 4:00 a.m. to advise him of what had happened. He was told she had been in an accident and was hurt and that she was being held in police cells. His response was to ask if they could keep her until noon. [23] am not satisfied that C.J.S. attempted to commit suicide in April of 1999. She denies that she did. J.P. (C.J.S.'s sister's estranged husband), says she called him April 13 to disclose that she had taken an overdose of sleeping pills. There is no telephone record of his call. S.W.S. says the attempt was on April 4/5, 1999. Even so, he did not call Dr. Beattie, or an ambulance, or any other health care provider to assist C.J.S. if this had truly happened. [24] S.W.S. has kept W.S.S. from C.J.S. since April 19, 1999. He has only permitted her to see her son on two occasions for four hours on each occasion. He justifies this by saying that he was concerned for W.S.S.'s welfare, given her recent alleged attempt to commit suicide. However, this concern did not prevent him from leaving W.S.S. with C.J.S. for number of days immediately following this alleged attempt at suicide while he continued working. The courts are always concerned when custodial parent interferes with the access of the other parent. C.J.S., on the other hand, is prepared for S.W.S. to have access for the three days he is off work each week. [25] Despite S.W.S.'s allegations about crack/cocaine, etc. he has no personal knowledge of same and it is denied by C.J.S.. Her laboratory tests confirm that there are no narcotics in her system. [26] am satisfied that it is in W.S.S.'s best interests to be in C.J.S.'s custody. W.S.S. shall be returned forthwith to C.J.S. S.W.S. shall also make arrangements forthwith to return to C.J.S. W.S.S.'s furniture, clothing and other belongings. Re: B. Access [27] S.W.S. shall have access to W.S.S. on the three days each week he is not working. This will include overnight access. S.W.S. shall provide C.J.S. with his schedule for the purpose of arranging access. Re: C. Maintenance [28] I find S.W.S.'s gross annual income to be $48,897.00. find C.J.S.'s gross annual income to be $16,546.00. S.W.S. shall pay to C.J.S. as interim maintenance for W.S.S., the sum of $393.00 commencing May 1, 1999 and payable on the first day of each and every month thereafter until further court order. [29] I find that C.J.S. incurs child care costs in order to maintain her employment. S.W.S.'s pro-rata share of those expenses is 75% and C.J.S.'s pro-rata share is 25%. C.J.S. shall provide to S.W.S. record of the child care costs actually incurred, and S.W.S. shall be responsible to reimburse C.J.S. for 75% of those costs within 15 days of the presentation of the bills.

The parties were married in September 1996 and subsequently separated in April of 1999. The parties both seek custody of their only child born in October 1997. The issues before the court is interim custody and primary residence of the child, access by the other parent and interim child maintenance. The parties filed evidence that was considerably contradictory relating to each other and respective abilities as parent. viva voce hearing was held to assist determining the questions of credibility. The mother aged 31 years of age, is employed as secretary. The mother remained at home during the first year of the child's birth then returned to work. The mother suffered from post partum depression following the child's birth and as result attempted to commit suicide. She was hospitalized for three weeks to receive psychiatric assistance. The psychiatrist who treated the mother states the mother is unlikely to have future suicide attempts and has responded well to treatment. The child was with the mother every afternoon during her hospitalization and the mother bonded with her son. The father is currently employed at Ipsco on shift work and is currently living with his parents. The father has had the child since the separation and the child has had little access with his mother. HELD: The child's primary residence should be with the mother. Based on the information before the Court, the mother has always been the primary caregiver of the child and remained at home with the child for the first year of his life. The mother was responsible for the child's day to day needs, health care and child care. As well the father asserts that he was involved in the child's health care needs but was unable to name the child's pediatrician. The father will have access to the child for three days when he is not working including overnight access. The father's gross annual income is $48,897 which results in a payment to the mother for child maintenance in the sum of $393.00 payable on the first day of each and every month until further ordered by the Court. In addition the father will responsible for 75% of the child care expenses.

e_1999canlii12700.txt

1996 Date: 20001006 Docket: S.H. No. 124253/ 129883 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: ROBERT LLOYD FOWLER, KIM FOWLER and CENTRAL EQUIPMENT LIMITED, body corporate -and- SCHNEIDER NATIONAL CARRIERS LIMITED, body corporate and MICHAEL MAGOON DECISION HEARD BEFORE: The Honourable Justice Robert W. Wright, in Chambers, at Halifax, Nova Scotia on September 6, 2000 WRITTEN RELEASE OF DECISION: October 6, 2000 COUNSEL: Dale Dunlop for the Plaintiffs (Robert and Kim Fowler) Scott Norton for the Defendants Janet Curry for the WCB on watching brief [1] On December 30, 1994 violent head on collision occurred on the Trans Canada Highway near Woodstock, New Brunswick between two tractor trailers driven by the plaintiff Robert Fowler and the defendant Michael Magoon respectively. Mr. Fowler was seriously injured in the accident and brought this action for the recovery of damages from Mr. Magoon and his then employer, Schneider National Carriers Inc. [2] By earlier disposition, the issues of liability and damages were severed. The issue of liability only was tried before civil jury on April 3-7, 2000 as result of which it was found that the accident was caused by the negligence of the defendants. The jury further found that there was contributory negligence on the part of the plaintiff Robert Fowler on account of his failure to wear seatbelt. In its verdict, the jury apportioned liability between the parties in the division of 57½% 42½% in favour of Mr. Fowler. [3] Following the trial, an Order for judgment was taken out directing the defendants to pay to the plaintiffs Robert Fowler and Kim Fowler 57½% of their damages to be assessed. With a judicial assessment of damages several months away, the plaintiffs have now brought application under Civil Procedure Rule 33.01(A) seeking an interim payment from the defendants. [4] Civil Procedure Rule 33.01(A)(1) reads as follows: Notwithstanding the provisions of rule 33.01, the court may order the defendant to make an interim payment of such amount as it thinks just, not exceeding reasonable proportion of the damages which in the opinion of the court are likely to be recovered by the plaintiff after taking into account any relevant contributory negligence and any set off, cross-claim or counter-claim on which the defendant may be entitled to rely, if the court is satisfied: (a) that the defendant against whom the order is sought has admitted liability for the plaintiff’s damages, or (b) the plaintiff has obtained judgment against the defendant for damages to be assessed. [5] An analysis of Civil Procedure Rule 33.01(A)(1) was made by Justice Goodfellow in Bogaczewicz v. Faulkner (1997) 1997 CanLII 1847 (NS SC), 181 N.S.R. (2d) 163 and again in Mahoney v. Amleco Leasing Ltd. (1999) 180 N.S.R. (2d) 164. Justice Goodfellow set out his analysis as follows: 1. The court “may order”. This clearly indicates the granting of authority to make an order, and the granting of such order is not mandatory or automatic. 2. The order is “an interim payment of such amount as the court thinks just.” This is the usual expression for the granting of discretion to the court in broad terms but, nevertheless, always to be exercised judicially. 3. “Not exceeding.” This is clear direction that in determining the amount of the interim payment, limitation exists on such amount as the court thinks just. 4. “A reasonable proportion of the damages which in the opinion of the court are likely to be recovered by the plaintiff.” This gives clear direction as to the extent of the limitation. 5. Once the court has established an opinion as to what is likely to be recovered, it is mandated to take into account any relevant contributory negligence set-off, cross-claim or counter-claim for which the defendant may have an entitlement. [6] In short, once the court is satisfied that the plaintiff has met the threshold requirement for an interim payment under subparagraph (a) or (b), it must strive with the evidence before it to form an opinion of what damages are likely to be recovered by plaintiff and it may then order an interim payment as it thinks just, within the limitation that it not exceed reasonable proportion of that projected amount. [7] In the present case, the defendants acknowledge that the plaintiffs have met the threshold requirement for entitlement to an interim payment where the plaintiffs have obtained an Order for judgment for 57½% of their damages to be assessed. The defendants further acknowledge that the plaintiff Robert Fowler is deserving of substantial interim payment (although not so for the plaintiff Kim Fowler on this application), given the circumstances of this case. Indeed, the defendants have offered an interim payment to Robert Fowler in the approximate amount of $168,000. This is predicated on the submission that for purposes of this application, the court should confine the interim payment to recognition of Mr. Fowler’s demonstrable special damages incurred to date (which are nearing the $300,000 mark), subject to the jury’s apportionment of liability. [8] Mr. Fowler, on the other hand, seeks an interim payment in the range of $400,000 $450,000. This is predicated on his counsel’s projection that his damages claim will likely be assessed in the final analysis at something in excess of one million dollars (less 42½% for contributory negligence). The heads of damages claimed consist of non-pecuniary loss, past income loss, loss of future income and other benefits, cost of future care and loss of valuable services. In support of these projections, the plaintiffs have filed extensive affidavits attaching several exhibits including medical reports and an actuarial report calculating their past and future losses. [9] As noted by Justice Goodfellow in his earlier decisions, an application for an interim payment under Civil Procedure Rule 33.01(A) is not substitute for an assessment of damages nor is it mini-trial of any sort. Rather, the court has the discretionary power to order an interim payment to plaintiff, based on its opinion of the amount of damages the plaintiff is likely to eventually recover, subject to the reasonable proportion limitation. [10] Where the level of the reasonable proportion limitation should be set in any given case is left to the discretion of the court. It is implicit in the Rule, however, that (a) the greater the certainty of the final outcome of liability (having regard to contributory negligence, set-offs, cross-claims or counter-claims) and (b) the greater the strength of the character of the evidence supporting the damages claim that is then before the court, the higher the proportion of damages that can reasonably be advanced by an interim payment. There is nothing in Civil Procedure Rule 33.01(A) which precludes an interim payment from being substantial amount in proper case. At the same time, Justice Goodfellow’s caution in Bogaczewicz is to be observed that the court must exercise some degree of caution to avoid any influence on the eventual outcome that will be decided at the assessment of damages hearing. [11] now turn to general review of the state of the evidence before me in support of the plaintiffs’ claims for damages. Mr. Fowler, with whom will first deal, provides in his affidavit summary describing the nature and extent of the injuries which he sustained in the accident. This summary is substantiated by the medical reports that have been filed to date and reads as follows: 7. As result of the accident, suffered catastrophic injuries, including severe comminuted fracture of my right leg which has necessitated number of operations, eventually leading to the fusion of the right knee; serious lower back injury resulting from fracture of one of the lumbar vertebrae; severe facial injuries; rib injuries, upper back soft tissue injuries; and am advised traumatic brain injury which has impaired my short term memory and learning abilities. [12] It is to be noted that the defendants have not yet had an opportunity to examine any of Mr. Fowler’s physicians on discovery nor to obtain an independent medical examination or other expert reports as they see fit. Nonetheless, the above described injuries are largely demonstrated by clinically objective medical evidence and the broad array of medical reports in evidence so far do not indicate any pre-existing medical condition(s). What they do indicate is that Mr. Fowler has been left with permanent disability from the accident, both in terms of significant physical limitations and impairment of certain mental functions. [13] Even though this medical evidence has not yet been tested by discovery examinations or an independent medical examination, it is likely, given the clinically objective nature of the medical findings to date, that Mr. Fowler will recover a substantial amount of non-pecuniary damages. [14] Typically in case such as this, the head of damages which represents the largest component of the claim and which, at the same time, is the most difficult to determine, is loss of future income. As mentioned, the plaintiffs have filed an actuarial report prepared by Gmeiner Actuarial Services Inc. dated May 18, 2000 which quantifies Mr. Fowler’s loss of future income claim at approximately $550,000. This calculation is based on the key assumptions that Mr. Fowler is totally and permanently disabled from returning to the workforce and that he would otherwise have continued to be steadily employed until age 65 based on his lengthy employment track record as long-haul truck driver. [15] What is yet to be determined through evidence to be gathered by the defendants, however, is what residual earning capacity Mr. Fowler might have that would mitigate his claim for loss of future income. There is evidence before me that the defendants offered the services of rehabilitation specialist to Mr. Fowler with view to getting him started in the operation of small excavation business. That has apparently been tried over the past years or so with marginal results. Although the extent, if any, to which Mr. Fowler has some residual earning capacity has yet to be explored by the defendants through further pre-hearing procedures, am satisfied of the likelihood, based on the evidence before me, that he will recover some measure of compensation for loss of future earnings. [16] The Gmeiner actuarial report also quantifies Mr. Fowler’s past loss of income at approximately $216,000 using valuation date of June 1, 2000. This head of damage has much higher degree of certainty of recovery, subject to any arguments of mitigation which the defendants might develop. [17] The Gmeiner report also quantifies Mr. Fowler’s claims for cost of future care and loss of valuable services at approximately $20,000 and $48,500 respectively. However, the assumptions underlying these claims have not yet been tested by the defendants and the evidence is not complete enough at this stage for the court to be able to form an opinion as to the likelihood of recovery of either of these heads of damages. [18] There is one other item of special damages pointed out by plaintiff’s counsel and that is Mr. Fowler’s apparent obligation to repay to the Workers’ Compensation Board medical aid costs expended on his behalf in the amount of $69,148.45. This obligation arises by virtue of s.5 of the Health Services and Insurance Act R.S.N.S. 1989, c.197 and was not disputed by defence counsel as an item of special damages. [19] Lastly, both counsel further agree that neither pre-judgment interest nor costs of the action are to be taken into consideration by the court for purposes of this application where the Rule speaks in terms of an interim payment of damages only. [20] In summary, the following factors support the entitlement of Mr. Fowler to substantial interim payment from the defendants: (a) Judgment has been obtained against the defendants, as reduced by the finding of contributory negligence aforesaid, with damages to be assessed; (b) Mr. Fowler is likely to recover substantial amount of non-pecuniary damages considering that his personal injuries and disabilities are substantiated largely by clinically objective medical evidence rather than subjective complaints. In reaching that conclusion, the court is mindful of the fact that the defendants have not yet availed themselves of the opportunity to discover any of Mr. Fowler’s physicians or to conduct an independent medical examination or to retain other experts as they see fit, any or all of which might well serve to reduce Mr. Fowler’s claim. There is unlikely to be, however, any radical change in either the medical diagnosis or prognosis that has been made, given the nature of the injuries sustained in the accident; (c) There is high degree of certainty that Mr. Fowler will recover substantial amount of special damages which are acknowledged to be nearing the $300,000 mark subject, of course, to the reduction for contributory negligence and any arguments of failure to mitigate that might be raised by the defendants. (d) Although far less predictable where the defendants have yet to fully explore the issue of mitigation through further pre-hearing procedures, the court is satisfied that Mr. Fowler is likely to recover some measure of compensation for loss of future earnings, given the nature and extent of his injuries and his steady employment record as truck driver spanning some 20 years. [21] After weighing all of these factors and having regard to the guiding principles reviewed in this decision, I have concluded that $250,000 represents a just amount of the interim payment that ought to be made to Mr. Fowler and an Order will issue accordingly. [22] Joining in this application for an interim payment is Kim Fowler, the wife of Robert Fowler. In the Statement of Claim, Ms. Fowler claims damages for the loss of valuable services previously provided by her husband and conversely, damages for the increased value of her own contribution to the household since the accident. As part of this application, she now seeks an interim payment that would extend as well to prospective damages for loss of future earnings. This relief is not presently pleaded in the Statement of Claim nor has there yet been production of documents by Ms. Fowler in this regard or any discovery on the issue. [23] What has now been presented to the court in support of her application is the Gmeiner actuarial report which includes calculation for loss of earning capacity for Ms. Fowler as well as for loss of valuable services. The present value of the loss of future income is valued at approximately $80,000 on the assumption that Ms. Fowler would have returned to the competitive workforce once her children were grown up and that she would likely have worked to retirement age of 61 with an annual loss of income of $6,202. At the time of the accident, Ms. Fowler’s activities were primarily those of homemaker. The Gmeiner report also quantifies the loss of valuable services claim on the part of Ms. Fowler at $48,500, making total damages claim of approximately $128,500. [24] The evidence to support the validity of this claim is far from complete at this stage and that which is before me has yet to be tested by the defendants in further pre-hearing discovery procedures. As mentioned, the claim for loss of future earnings on behalf of Ms. Fowler does not yet even form part of the pleadings. At this stage, the court is unable to form an opinion of what damages are likely to be recovered by Ms. Fowler at a final assessment of damages and it is therefore not appropriate to order that an interim payment be made for her benefit. [25] As to costs of this application, counsel have agreed that an appropriate amount to be paid by the defendants is $1500 plus taxable disbursements, which will be incorporated in the Order accordingly. [26] There is further complicating factor surrounding this application that wish to comment on. Mr. Fowler was entitled to various workers’ compensation benefits as result of the accident, primarily for temporary earnings replacement and the medical aid costs above mentioned. The Workers’ Compensation Board now asserts first claim against, and expects immediate payment from, any interim payment attained to the full extent of its costs associated with Mr. Fowler’s claim. The following is an account of those costs to date: i) Temporary Earnings Replacement Benefits (former Act) 40,738.32 ii) Temporary Earnings Replacement Benefits (current Act) 64,750.94 iii) Medical Aid Costs 69,148.45 iv) Vocational Rehabilitation 4,311.80 v) Permanent Impairment Benefit 3,077.85 Sub-total $182,027.36 10% Administration Fee Applied Against WCB Claim Costs 18,202.74 Legal Fees/Disbursements to April 10,2000 less HST 66,773.18 Account for Actuarial Report less HST 3,378.00 Total $270,381.28 Plus any additional WCB Claim Costs, Legal Fees etc. incurred until such time as the WCB is fully reimbursed costs associated to this claim. [27] The priority of the claim of the Workers’ Compensation Board against the interim payment which have ordered is not in issue before me on this application and therefore make no ruling on the point. However, urge the Board, in asserting its claim, to accommodate this application by acquiescing in substantial amount of this interim payment being paid directly to Mr. Fowler. Part of the rationale for the interim payment rule is to alleviate hardship of individual plaintiffs and it was designed to benefit plaintiffs personally in deserving cases. also observe that the Workers’ Compensation Board claim includes 10% administration fee and sizable amount for legal fees and disbursements which bear no connection whatsoever with the nature of the interim payment that have ordered. encourage the Board to take these considerations into account in relaxing the immediate enforcement of its claim.

In a trial of liability only, jury found defendants to be entirely responsible for causing motor vehicle accident. Plaintiff was found contributorily negligent and liability was apportioned 57.5% to defendant and 42.5% to plaintiff. Plaintiff suffered significant injuries and plaintiff and spouse applied for interim payment of damages. Application allowed in part; plaintiff awarded $250,000.00 as interim payment; spouse's application denied. Once court is satisfied plaintiff has met threshold requirement of a judgment or admission of liability, it must strive with evidence before it to determine what damages are likely to be recovered by plaintiff and may then order interim payment if it thinks just, within limitation that it not exceed a reasonable proportion of the projected amount. The greater the certainty of the final outcome of liability and the greater the strength of the evidence supporting the damages claim, the higher the proportion of damages that will be advanced. There is nothing which precludes interim payment from being substantial amount in a proper case but court must be cautious to avoid any influence on eventual outcome of damage assessment. Although there had not yet been discovery of plaintiff's doctors or an independent medical exam obtained, the plaintiff's injuries were largely demonstrated by clinically objective medical evidence and there was no evidence of any pre-existing condition. In such circumstances, a substantial sum could be ordered. Neither pre-judgment interest nor costs are to be considered by the court in such an application. The evidence in support of the spouse's application was far too incomplete and had yet to be tested by defendants in discovery. Court could not form opinion on what damages spouse was likely to recover.

4_2000canlii3136.txt

IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: 2005 NSSC 364 Date: 20051013] Docket:31735 CFSA Registry: Sydney Between: Children's Aid Society of Cape Breton-Victoria v. L.A.D., J.C.E. and C.M.S. Respondent Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on October 30, 2008. Restriction on publication: (Type the publication restriction notice.) (Delete label if not applicable.) Judge: The Honourable Justice Darryl W. Wilson Heard: September 15, 2005, October 5, 2005 and October 7, 2005, in Sydney, Nova Scotia Decision: October 13, 2005 Written Reasons: January 31, 2006 Counsel: Christopher Conohan, for the Agency David Raniseth, for LAD (mother) Don MacLennan, for JCE (psychological father) David Iannetti, for CMS (biological father By the Court: [1] The Children\'s Aid Society of Cape Breton-Victoria (agency) applied for an order of Permanent Care and Custody, with no provision for access, with respect to the child, S.N.D., born [in 2003]. The Respondent, L.A.D. (mother) opposed the application and requested an order returning the child to her care. [2] The Respondent J.C.E. (psychological father) was residing with the mother and providing care to the child at the time the child was apprehended. He is considered parent or guardian pursuant to s. 36(1)(b) and 3(1)(r)(iv). He opposed the application and requested an order returning the child to his care. [3] The Respondent C.M.S. (biological father) opposed the application and requested an order returning the child to his care. The biological father who had minimal contact with the child was added as party by Order dated September 15, 2005. His status and relationship with the child will be discussed later in this decision. [4] The child was taken into care April 22, 2004 on the allegation there was substantial risk of physical harm caused by the mother and psychological father's failure to supervise the child-s.22(2)(b). The mother does not trust the agency's interventions because of her past experiences. When she was youth, the mother was in the care of the agency and resided in several foster and group homes. The mother's care of her older daughter, D.D., born [in 2000], was investigated by the agency. Court proceedings were not pursued when the mother and maternal grandmother consented to an order transferring custody of the older child to the grandmother. [5] The agency received and investigated number of referrals after the child, S.N.D., was born [in 2003] and offered the mother services which were refused. [6] The child was apprehended in April 2004 because of unsafe and unhealthy living conditions in April 2004. The apartment in which the child was living was occupied by the mother, psychological father, the mother's sister and 17 year old youth and his girlfriend. Only the psychological father and the 17 year old male youth were home at the time the child was taken into care. Despite the mother's protestations that the home was untidy because they were preparing for wedding shower, the Court was satisfied and accepted the evidence of the agency that the conditions of the home were unsafe and unhealthy for young child. There were two dogs and cat in the apartment. Rottweiler was caged while second dog, with chain around its neck, was wondering the living room eating items off the floor. The apartment had strong smell of dog feces and cat litter. The child partially clothed was sitting in high chair watching TV. Her diaper was soiled and appeared unchanged for long time. There was litter scattered on the floor below the child's high chair and on table and counter in the kitchen. The playpen contained uncovered styrofoam. There was no safety rail for the child's bed. staircase railing was broke and had been removed from the staircase. There was no baby gate in place at the top of the stairs to protect the child from falling down the stairs. The agency had discussed safety and health concerns in the past with the Respondent and it did not appear she was making any progress in improving the situation. [7] The Interim Hearing was held May 21, 2004. The court ordered the return of the child to the supervised care and custody of the mother and psychological father pending the Protection Hearing provided the Respondents comply with agency recommendations to make the apartment safe for the child, the Respondents participate in education counselling with family support worker to deal with issues of parenting and child safety, the mother submit to random drug and alcohol testing, one of the dogs be removed from the home, the Respondents not allow additional persons to reside in the home with the child and the Respondents permit unscheduled visits to the home by agency workers to monitor compliance with conditions that impacted on the child's safety and well being. [8] Subsequent to the Interim Hearing, the agency reported lack of cooperation by the Respondents. Ms. Campbell, Child Protection Worker, set out the agency's concerns in an affidavit dated July 21, 2004. The Risk Management Conference Minutes attached to the affidavit summarized the agency's concerns as follows: Worker Wendy Campbell reviewed the home visits to L.A.D. and J.C.E.'s home. That contrary to the current supervision order which states there are to be one dog in the home, there are now there as new puppy has been added. The condition of the residence was discussed with writer saying it has been getting worse upon each visit. That on at least three separate occasions there has been kitty litter on the floor which was explained as the child [S.N.D.] getting into it. This was noted to be choking hazard. That when worker arrives to the home in the morning L.A.D. is usually sleeping and that it is usually J.C.E. who is up with [S.N.D.], and that J.C.E. is no longer in the home. The information in the new referral was discussed which included the incident where the child [S.N.D.] had apparently ingested half of "nervie'', before being discovered, the child have multiple babysitters was discussed which included brother that L.A.D. accused of sexually assaulting her and who she claimed she didn't want around her child as well as our questions around [S.N.D] being in her bedroom with the television on when she was supposedly being put down for nap was discussed as when she had first been apprehended one of the concerns was that she had been sitting for ours watching cartoons in her highchair for an unspecified amount of time while J.C.E. slept. Workers also discussed the standby report from Barbara Estwick where she reported as well the house was in disarray, noting that Ms. Estwick had reported kitty lifter on the bathroom floor as well, and that L.A.D. would not tell worker where [S.N.D.] was at. It was noted that [S.N.D] was not in the physical care of her mother at at that time, that she was with her grandmother until after court. It was decided that although the situation was not good at this time there was not enough to do an apprehension of the child [S.N.D.]. [9] On July 22, 2004 the Respondents agreed to protection finding. The child remained in the supervised care and custody of the Respondents subject to the supervision of the agency and the following conditions: the mother cooperate with random drug and alcohol testing, the Respondents provide the agency with list of babysitters, all pets be removed from the residence, restrictions on who could reside in the home with the child, instruction from family support worker on child care safety issues and couple counselling if the Respondents reside together. [10] After the Protection Hearing the agency reported the Respondents continually breached conditions of the court order and did not cooperate in addressing the risk factors identified at previous court hearings and acknowledged by the Respondents in consenting to protection finding. [11] Disposition Hearing was held on October 12, 2004. The parties consented to Supervision Order which provided that the child remain in the care of the Respondent mother and psychological father subject to the same terms and conditions cited in the previous paragraph. [12] Although the agency was agreeable to Supervision Order with terms and conditions, the agency noted at paragraph three in their Plan of Care ongoing problems in relation to the prior Supervision Order. In particular: The order states that the Applicant is to have unscheduled access to the Respondents' residence. The Agency has encountered difficulties with this. After being told by L.A.D. that she would not permit Agency worker inside the residence, there were at least three unsuccessful attempts made at contact in the following two week period. As well, police had to be called to the home on one occasion in order to gain access as those inside would not allow entry to the home. To date, L.A.D. has not provided the Agency with any names of potential babysitters. L.A.D. insists only her brother and mother babysit for the child, [S.N.D.], L.A.D. refuses to provide the names of the girls who take [S.N.D.] out on daily basis, stating that they are not babysitters because you pay babysitters and those girls are not paid. The order also states that, if L.A.D. and J.C.E. continue to reside together, they are to attend couples counselling. Although the two remain living together in the same apartment, they deny being couple and say that the order only says they are to have counselling if they are together as couple, and that they have not decided yet if they are going to try to work it out or not. As result, to date, no counselling has taken place between the two, even though there have been reported acts of violence between them. [13] The Supervision Order was to be reviewed on January 5, 2005. Soon after the Disposition Hearing in October the Respondents began making plans to relocate to either [one of three places in Nova Scotia]. The mother reported the child had foot and mouth disease and had been burned on her back from heater. In December the mother reported to the agency that she was not returning to Cape Breton for court and requested the file be transferred to the Halifax area. By early January the Respondent psychological father and mother were still residing in Cape Breton. The January 5th hearing was adjourned to January 26, 2005 for the reception of evidence regarding the Respondents progress and their circumstances. [14] The agency was concerned that the Respondent mother and psychological father were not prepared to cooperate with the agency in addressing the risk factors which affected the health and safety of their child and were more concerned about their own circumstances than the child's needs. At risk conference meeting on January 19, 2005 the agency decided to seek Permanent Care and Custody Order when the matter returned to court. The minutes of that, meeting were attached as Exhibit to the affidavit of Ms. Campbell dated February 3, 2005 and are as follows: It was explained that the Agency had taken the child, S.N.D. into care because of instability in the home i.e. so many changes in the residence, the condition of the home, (dirt, debris) and the condition of the child, herself. That [S.N.D.] was returned home with list of conditions for the parents to get services and to make certain changes. There are always some type of hazard in the home, supervision is questionable and there is lack of any indications of stability. The residences are always in state of etheer moving in or out, they are always in state of transition and, although, the issues around supervision have always been addressed with the parents there has been no indication that anything has changed. It was explained that this couple were supposed to engage in counselling but that this never happened. We discussed the various tactics this couple used to avoid doing the required services (they resided together but told the court they wre not together), there was lack of follow through with anything they were supposed to do and the risk has not gone away. That L.A.D. and J.C.E. have offered many explanations of why things didn't happen. We discussed the fact that whenever anything was addressed with this couple they always spoke about their own objectives (finding job, going to school), but that there never seemed to be any consideration that the child comes first and that they should be doing things to make her situation better. We discussed that there is no indication that J.C.E. and L.A.D. will benefit from services being put in because they haven't in the past. That this couple did complete parenting program in which such things as safety checklist were incorporated, but that there were no noticeable changes. It was discussed that we are looking for permanent care of [S.N.D.] as we don't believe we can expect any reasonable change in reasonable amount of time. It is this decision of those present to ask the court to return [S.N.D.] to the permanent care of this Agency. [15] On January 26th, counsel for the Respondents indicated the Respondents were no longer living together and counsel could not represent either of them. The hearing was rescheduled to February 16th in order to allow the Respondents to engage separate counsel. [16] On January 27th the agency received information concerning inappropriate parenting by the mother. At risk management conference meeting on January 27th, the agency decided to re-apprehend the child. The apprehension was returned to court on February 3. hearing into the agency's reapprehension was adjourned to February 16th which was the date set for review of the prior Supervision Order. New counsel appointed for the Respondents were unable to proceed on February 16th and the hearing was further adjourned to April 6th, 2005. [17] There was confusion as to the nature of the hearing on April 6, 2005. The agency was prepared for Permanent Care and Custody hearing while the Respondents believed that the only issue being reviewed was the agency's reapprehension of the child. The court concluded the hearing would only deal with the agency's application for Temporary Care and Custody Order pursuant to s. 46(1) of the Act and that the child was to remain in the temporary care and custody of the agency pending final hearing of the matter. parental capacity assessment with respect the Respondent mother was also ordered. [18] The biological father contacted, the agency shortly after the child was taken into care for second time in February 2005. He advised the agency he was the father of the child and requested access. The child protection worker advised him to get legal advise since the agency considered J.C.E. to be the father of the child. Although the biological father acted promptly to engage counsel, he was unable to meet with counsel for several months. His application to be added as party to the proceeding dated June 16th was scheduled for hearing June 22 the same date as the scheduled review hearing of the Temporary Care and Custody Order, The agency consented to the biological father being added as party but the Respondent mother opposed his application and denied that he was the biological father of the child. paternity test was ordered. The result which was not received until late August confirmed C.M.S.' paternity. The mother still opposed his application for party status and hearing was scheduled for September 15. [19] The Permanent Care and Custody hearing which also had been scheduled for September 15, 2005 was adjourned because the parental capacity assessment was not completed until September 12 which did not allow sufficient time for review prior to hearing. [20] The biological father's application for standing was granted on September 15, 2005. LEGISLATION: [21] Section 46(4) provides: 4) Before making an order pursuant to subsection (5), the court shall consider (a) whether the, circumstances have changed since the previous disposition order was made; (b) whether the plan for the childs care that the court applied in its decision is being carried out; (c) what is the least intrusive alternative that is in the childs best interests; and (d) whether the requirements of subsection (6) have been met. Section 46(5) provides: (5) On the hearing of an application for review, the court may, in the childs best interests, (a) vary or terminate the disposition order made pursuant to subsection (1) of Section 42, including any term or condition that is part of that order; (b) order that the disposition order terminate on specified future date; or (c) make further or another order pursuant to subsection (1) of Section 42, subject to the time limits specified in Section 43 for supervision orders and in Section 45 for orders for temporary care and custody. Section 46(6) provides: (6) Where the court reviews an order for temporary care and custody, the court may make further order for temporary care and custody unless the court is satisfied that the circumstances justifying the earlier order for temporary care and custody are unlikely to change within reasonably foreseeable time not exceeding the remainder of the applicable maximum time period pursuant to subsection (1) of Section 45, so that the child can be returned to the parent or guardian. 1990, c. 5, s. 46. Section 42(2) provides: (2) The court shall not make an order removing the child from the care of parent or guardian unless the court is satisfied that less intrusive alternatives, including services to promote the integrity of the family pursuant to Section 13, (a) have been attempted and have failed; (b) have been refused by the parent or guardian; or (c) would be inadequate to protect the child. Section 42(3) provides: (3) Where the court determines that it is necessary to remove the child from the care of parent or guardian, the court shall, before making an order for temporary or permanent care and custody pursuant to clause (d), (e) or (f) of subsection (1), consider whether it is possible to place the child with relative, neighbour or other member of the childs community or extended family pursuant to clause (c) of subsection (1), with the consent of the relative or other person. Section 42 (4) provides: (4) The court shall not make an order for permanent care and custody pursuant to clause (f) of subsection (1), unless the court is satisfied that the circumstances justifying the order are unlikely to change within reasonably foreseeable time not exceeding the maximum time limits, based upon the age of the child, set out in subsection (1) of Section 45, so that the child can be returned to the parent or guardian. 1990, c. 5, s. 42. Section 13(2) provides: (2) Services to promote the integrity of the family include, but are not limited to, services provided by the agency or provided by others with the assistance of the agency for the following purposes: (a) improving the family's financial situation; (b) improving the family's housing situation; (c) improving parenting skills; (d) improving child-care and child-rearing capabilities; (e) improving homemaking skills; (f) counselling and assessment; (g) drug or alcohol treatment and rehabilitation; (h) child care; (i) mediation of disputes; (j) self-help and empowerment of parents whose children have been, are or may be in need of protective services; (k) such matters prescribed by the regulations. 1990, c. 5, s. 13 Section 2(1) provides: (1) The purpose of this Act is to protect children from harm, promote the integrity of the family and assure the best interests of children. Section 3(2) provides: (2) Where person is directed pursuant to this Act, except in respect of proposed adoption, to make an order or determination in the best interests of child, the person shall consider those of the following circumstances that are relevant: (a) the importance for the child's development of positive relationship with parent or guardian and secure place as member of family; (b) the child's relationships with relatives; (c) the importance of continuity in the child's care and the possible effect on the child of the disruption of that continuity; (d) the bonding that exists between the child and the child's parent or guardian; (e) the child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs; (f) the child's physical, mental and emotional level of development; (g) the child's cultural, racial and linguistic heritage; (h) the religious faith, if any, in which the child is being raised; (i) the merits of plan for the child's care proposed by an agency, including proposal that the child be placed for adoption, compared with the merits of the child remaining with or returning to parent or, guardian; (j) the child's views and wishes, if they can be reasonably ascertained; (k) the effect on the child of delay in the disposition of the case; (l) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of parent or guardian; (m) the degree of risk, if any, that justified the finding that the child is in need of protective services;. (n) any other relevant circumstances.. BURDEN OF PROOF: [22] The burden of proof in proceeding such as this is clearly on the Agency. It is civil burden of proof that must have regard to the seriousness of the consequences of the decision (J.L.v. C.A.S. of Halifax, (1985) 44 RFL (2d) 437 (N.S.C.A.) and C.A.S. of Halifax v. Lake, (1981) 45 NSR (2d) 361 (N.S.C.A.). [23] Testimony was received from Wendy Campbell, child protection worker, Linda Piercey, access facilitator; the biological father and his mother; the psychological father, the mother, maternal grandmother and the mother's landlord. [24] Michael Bryson, clinical psychologist filed his report and testified. His summary and conclusions reported at pages 22 and 23 are as follows: L.A.D. is the mother of two young girls, [S.N.D.], age years and D.D., age five. Neither of these children are presently in her care. D.D. resides with L.A.D.’s mother, while [S.N.D.] is in temporary foster care. L.A.D. has long history of involvement with the Applicant. She was child in care, during which she reports her behavior was defiant and unmanageable. Part of the difficulty seems to have been her anger at her mother, in addition to resenting when others imposed structure in her life, chronic misuse of alcohol and street drugs, and sexual victimization at young age. L.A.D. has chronic history of conflict in relationships. She admits to fears of physical intimacy, and appears to have difficulty with establishing and maintaining emotional intimacies. There is chronic pattern of being transient regarding many changes in addresses. L.A.D. presents as an angry wrman who is openly defiant and resentful of others, even if they are attempting to assist her. Her anger has often led to violence with others, in particular, her mother and J.C.E.. The problematic use of psychoactive substances remains. L.A.D. minimizes the seriousness of her Psychoactive Substance Abuse problem. She continues to use street drugs and alcohol despite her awareness that it jeopardizes the likelihood that her children will return to her care. L.A.D. appears to be torn between her love of her children, her desire that they return to her life, and her ability to manage her own life effectively. Unfortunately, she lacks insight into her problematic lifestyle and its risk to her children. In general she has chronic mental health and life style issues that would likely lead to her children being at serious risk of on-going neglect if they were in her care. [S.N.D.]'s behavior suggests an anxious attached to her mother. J.C.E. is not the biological father of [S.N.D.] However, it is clear when interviewing him and observing him with [S.N.D.] that he cares for her as if she were his own child. J.C.E. also has psychological issues most notably, his passivity and dependence on others. J.C.E. appears to lack self-confidence. He has high tolerance for abusive relationships. Much to his credit, he was found to have an appropriate relationship with [S.N.D.]. She has secure attachment to him. Recommendations: 1. It is recommended that [S.N.D.] remain in the care of the Applicant. 2. It is recommended that L.A.D. have supervised visits with her daughter, [S.N.D.]. 3. It is recommended that the supervised visits twice weekly. 4. It is recommended that J.C.E. have unsupervised visits twice week with [S.N.D.] 5. It is recommended that L.A.D. remain abstinent from alcohol, street drugs and prescription medication that is not prescribed to her for 24 hours prior to each visit and during each visit with [S.N.D.]. 6. It is recommended that L.A.D. attend and complete treatment program for alcohol, prescription medication and street drugs. 7. It is recommended that L.A.D. attend mental health counselling to assist her with her survival of sexual and physical abuse, and to assist her with learning to trust others such that she can have appropriate relationships with them. 8. It is recommended that L.A.D. attend and complete anger management counselling with psychologist. Her anger appears to be related to childhood trauma and her personality traits. 9. It is recommended that J.C.E. attend mental health counselling to assist him with self-esteem and hygiene. [25] Since April the mother has been residing at [...] Street. She maintains clean and tidy apartment. She is living by herself and taking courses by correspondence to improve her education. She is not involved in relationship with the psychological father but she is dating another person. [26] Her plan is to move into her mother's residence so that both her daughters can develop relationship. Her mother will provide childcare while she continues her education. Her hope is to operate her own business in two years. [27] She has taken parenting courses. After reading the Bryson Report she arranged counselling sessions to deal with issues surrounding anger management and her unsettled lifestyle including her frequent moves. These sessions have not started. She used marijuana once during July 2005 but not at her residence. She limits her use of alcohol to once or twice month. [28] She acknowledged missing 12-14 visits since June with her daughter due to illness. The Agency told her not to visit if she was ill. She did not always tell the Agency she would not be attending scheduled visits. She disagreed with the Report of the access supervisor that often she did not attend to her child's needs during visits and the child's safety was put at risk on occasion during visits. She stated she is securely attached to her daughter who cries when she is leaving. She admits that she is not as playful with the child as the psychological father. [29] The mother disagreed with the Bryson Assessment. She denies any problem with alcohol/drug use, that she engages in number of one-night stands, that she is flight risk and that her relationships are violent. She acknowledged that she is out spoken she does not always trust people and she does not take persons feelings into account. She was angry as child and the Agency had her take courses while she was in care. She is angry with the psychological father because he abused her. She was charged with assault in June 2005 when the psychological father had threatened to take the child from her. This charge was either dismissed or withdrawn. She acknowledges the tumultuous relationship with the psychological father. They have not been living together since December of 2004. They continued to see one another from time to time for sexual purposes, and the psychological father provided some child care until the child was reapprehended in January, 2001. They bickered during access visits blaming one another for their situation and this had negative effect on their access visits with the child. She attempted to get counselling regarding past issues but was informed by counsellor in [...] that he could not help since the Agency was involved. [30] She admits that before the birth of her older daughter, she was rebellious person but that has changed and now she is in position to care for her child and requests the child be returned to her care. [31] The mother has the support of her mother. The maternal grandmother stated the relationship with her daughter is good at times and poor at times. Each has reported the other's inappropriate parenting to the Agency. In the past, the grandmother was concerned about her daughter's misuse of alcohol and inattention to the child's needs. She is willing to help her daughter if her child is returned to her care. She believes her daughter is capable of providing child care if she is away from stress factors and she is able to settle down. She stated that since her granddaughter has been taken into care second time the mother is maintaining clean apartment, not going out to bars like she used to, drinking less, visiting her other daughter regularly, taking parenting courses and generally looking after herself. [32] The psychological father's plan is to have the child placed in his care. He would reside with his mother who would assist him in providing care for the child. The psychological father denies that he wants to care for the child so that he can continue relationship with the mother. He has positive relationship with the child who calls him "daddy". He reports that the hygiene concerns outlined in the Bryson Report are result of saliva defect he had since age five which causes bad breath. There is no treatment for this and he will eventually lose his teeth. He can not understand the other hygiene criticisms because he showers daily and uses deodorant. He disagrees with the Assessment that he has passive personality and he is dependant on others. [33] He acknowledged difficult time separating from the mother. There were number of confrontations and separations since the child was initially taken into care. There were concerns about violence in their relationship. The mother cut him once but it was accidental. He is awaiting trial for assault on the mother for an incident in June 2005. It concerned an argument about their relationship. He wanted family relationship with the mother initially but when the child was taken into care second time he stopped wanting relationship with the mother. He did not put forward plan to provide care for the child in the past because he did not think the Court would not give him the opportunity to care for the child. [34] The mother is against the psychological father's plan of care because she has concerns about the stability of his family. The mother claims his father is an alcoholic and his mother has complained about caring for the child [S.N.D.] in the past. The mother reported that the psychological father continues to contact her and recently attended at her residence in contravention of an Undertaking he gave to stay away from her while awaiting his assault trial. [35] The recommendations and conclusions of the Bryson Assessment were reported earlier. Mr. Bryson testified that the mother loves her child and wants the child to be returned to her care but she can not manage her life effectively. He concluded that she lacked insight into her problematic lifestyle and the risks to her child of this lifestyle. In his opinion she has chronic mental health and lifestyle issues that would likely lead to her child being at serious risks of ongoing neglect if the child was returned to her care. Mr. Bryson reported that the child has an anxious attachment to the mother. In his opinion the mother is an angry person who is openly defiant and resentful of others. Her anger leads to violence with others. She minimizes the seriousness of her substance abuse problem. He acknowledges that she does not have substance dependance disorder but rather substance abuse problem. She was using drugs while care of the child was being supervised by the Agency. In his opinion the mother resists structure in her life and will resist advice from those who try to impose it. She has personal issues such sexual victimization as youth which has not been appropriately addresses through counselling. There is chronic history of conflict in relationships, chronic pattern of transients and it is difficult for her to establish and keep emotional intimacy. In his opinion it is unlikely that her circumstances are likely to change in the reasonably foreseeable future in order for the child to be returned to her care. [36] The access supervisor reported that initial visits with the child were attended by the mother and the psychological father together. They bickered during these visits and the child was left to play by herself at times. Often the mother complained in front of the child rather than addressing concerns in the absence of the child. The psychological father paid more attention to the child than the mother. Separate visits had to be arranged for the mother and the psychological father because of the bickering and complaining. Since the separate visits in June the mother missed 12 14 visits with the child. The psychological father attended more of the visits than the mother although he began to miss visits in September. The access supervisor reported the mother gave the child small object which could have been put in her mouth, left the child unattended on slide and did not hold the child's hand when they were walking on the sidewalk on busy residential street. In each case the access supervisor brought these safety concerns to the mother's attention who did not seem to accept the comments or the advice of the facilitator. [37] Wendy Campbell, Agency worker, stated that throughout the process the mother and the psychological father were unwilling to engage in services to address the risk factors identified at the Protection Hearing. They were resistant to advice and did not cooperate with Agency workers. Since the second apprehension of the child the Agency visited the mother's apartment once and it was tidy. Most of the contact has been by telephone. The Agency is aware the mother has taken parenting courses but not couple counselling or anger management. The mother missed number of access visits. The child is eager to see the mother when she visits. Access visits were cancelled because the mother was not informing the Agency when she could not attend. The Agency relies upon the Assessment of Mr. Bryson that the prognosis for treatment for the mother is poor and substantial risk of physical harm to the child as result of the mother's neglect still exists today. [38] The Agency's plan is to place the child for adoption. They considered placing the child with the grandmother who has custody of an older child but because of the Agency's current concerns regarding the grandmother's care of this child they do not think this placement is appropriate. BIOLOGICAL FATHER: [39] The biological father lives with his mother in [...]. He is looking for work. He has been in receipt of Social Assistance for the past four years. He had two and half year relationship with the mother after the birth of her older child, D.D.. The mother and D.D. lived with him at his mother's residence for about eight months and for short time in their own an apartment., He is D.D.'s, godfather. According to him, he cared for D.D. more then the mother when they lived together. The mother moved to [...] after their separation. When he found out that she was pregnant he thought he may be the father. Later, the mother informed him he was [S.N.D.]'s father. He did not initiate contact with [S.N.D.] for two years. The maternal grandmother told him that the mother's new boyfriend did not want him to see the child and that he would cause problems in their relationship if he pursued access. [40] The biological father maintained good relationship with the maternal grandmother. The child, D.D., who now resides with maternal grandmother telephones his place daily to speak to him or his mother and he sees her frequently. He was able to see his child, [S.N.D.] for the first time when she was placed in the care of the maternal grandmother by the Agency in May 2004. When [S.N.D.] was returned to her mother's care, he was able to see her when the maternal grandmother babysat the child. He never saw [S.N.D.] when she was in the care of the mother and psychological father. The last time he saw [S.N.D.] was in January 2005 when the mother left her with his mother for visit not knowing he was there. [41] He acknowledged that he should have sought relationship with his child sooner. He was nervous and confused. He knew the Agency apprehended [S.N.D.] and that she had been returned to the mother's care. He hoped that the mother would get her act together and she would be able to provide care for the child. It was only when [S.N.D.] was taken into care for the second time that he decided that he should contact the Agency and inform them that he was the father and he wanted access. Now he wants to care for [S.N.D.] because it is important for his child to know family. He admits that S.N.D. does not know him as her father. His plan is to reside with [S.N.D.] in his mother's residence and eventually his own apartment. His mother and the maternal grandmother would assist him in providing care for the child. He acted promptly to get lawyer when the Agency told him they could not help him with access. He feels that he is capable father because he helped care for the mother's older child, D.D.. He acknowledged that he used marijuana but not when the child was present. He said the mother is an angry person and they often had verbal conflicts during their relationship. He was not aware of any safety issues when they lived together but the mother ignored the child, D.D.'s needs at times. [42] The biological father's mother stated that she has good relationship with the maternal grandmother and the child, D.D.. When the mother and D.D. lived at her place, her son did most of the child care such as washing, changing, feeding and playing. The mother slept in most mornings. The biological father's mother stated she has diabetes and heart condition but these conditions do not prevent her from providing child care. She is willing to help her son with the care of [S.N.D.]. [43] When the biological father contacted the Agency in February 2005 about access to his daughter, he informed them that if necessary he would apply for custody of his daughter. Ms. Campbell stated that they never received plan from him until late in the process and the Agency did not have time to access his abilities. The Agency opposes any plan in which the child is placed in his care. [44] The mother opposes the biological father's application for custody because he paid no attention to his daughter for two years and he uses marijuana regularly. At the same time she would prefer family placement rather than placement with the Agency. CONCLUSION: [45] have considered the evidence as whole, including the evidence of witnesses who testified on behalf of the parties and the exhibits filed. have considered the preamble to the Children and Family Services Act and the relevant statutory provisions and the submissions of counsel. [46] The Court is required to make an Order in the best interests of the child taking into account all relevant circumstances including the factors set out in Section (3) of the Act. The maximum time limits pursuant to the Act have expired. The Court must either return the child to the care of one of the parties or place the child in the permanent care and custody of the Agency. [47] The mother's lifestyle was driven by frequent changes of residences, weekly visits to bars, social use of drugs, and various house guests and unsanitary and untidy home conditions. The mother had unresolved anger issues which led to conflict in family and personal relationships. The mother paid more attention to her own circumstances than her child's needs. All of these factors created home environment which resulted in the child being found at substantial risk of physical harm, due, to neglect. The Agency attempted to work with the mother to address these various issues. The Court imposed conditions in various Orders to allow the safe return of the child to the mother's care while she addressed the risk factors which led to the child being found in need of protection. [48] The Court finds that throughout the process the mother was resistant to the intervention of the Agency and reluctantly complied with conditions imposed by the Court. If it were not for the Court proceedings it is unlikely the mother would have addressed the factors placing her child at substantial risk of physical harm through neglect. Both the mother and psychological father played games with the Agency about the nature of their relationship to avoid couple counselling. At times they were living together but said they were not in relationship. Other times they were living separate and apart but continued to see one another for sexual relationship. The mother agreed to finding that the child was in need of protective services but continued to resist Agency intervention and assistance. As result the child was taken into the care of the Agency second time. [49] The Court agrees with the assessment of Mr. Bryson that the mother lacks insight into her problematic lifestyle and the risk to the child of her lifestyle. [50] Since April the mother has made progress in her personal situation. She is residing by herself in her own apartment which she manages to keep clean and tidy. However, the mother has a history of frequent changes of residences and this period of stability only has been a few months. Also she is not under the stress of caring for child. [51] The mother continues to use alcohol and on one occasion smoked marijuana. Because of her past misuse of these drugs the child will be at substantial risks of physical harm through neglect should stress factors reappear and the mother resorts to more frequent use of these drugs. While she is not abusing these drugs at present, she minimizes her substance abuse problem and fails to recognize the need for more education, counselling and abstinence. [52] The mother has unresolved anger management issues which have not been addressed. Although she has made arrangements for counselling regarding anger and lifestyle issues, these sessions have not started. It is evident that her anger at the Agency has prevented her from addressing the chronic lifestyle issues which impacted negatively on her care of her daughter. Although the mother has taken parenting courses, the Court is uncertain whether she is able to apply the information she received. Until adequately addressed through counselling, the mother's anger will continue to define her relationship with those who wish to help and the child will be at risk of physical harm through neglect. [53] Although the mother loves her child and wants to care for her she does not seem to be able to put her child\'s needs ahead of her own needs. Mr. Bryson noticed an anxious attachment between the child and the mother. The access supervisor noticed more interaction between the psychological father and the child than the mother and the child. The psychological father provided great deal of child care for the mother. The mother missed many access visits from June to October The mother relied upon C.M.S. to care for her older child. C.M.S. and his mother noted the mother's indifference towards the child's needs at times. Safety issues identified by the access supervisor were met with denial rather than concern about the child's safety. Inappropriate supervision was chronic issue identified by the Agency which the mother seems unwilling or unable to address. [54] find the degree of risk that justified the finding that the child was in need of protective services still exists. [55] accept the assessment of Mr. Bryson that the circumstances justifying the finding that the child was in need of protective services are unlikely to change in the reasonably foreseeable future which would allow the child to be safely returned to her care. [56] The placement of the child with relative of the mother is not possible at this time and no plans were put forward by any relative or friend of the mother. find that the least intrusive alternatives including services to promote the integrity of the family have been attempted and failed. [57] have considered the plan of the Agency and the plan of mother. find the plan of the Agency is more suited to the child's best interests than the plan of the mother. In determining the child's best interests have determined that continuity in care would be disrupted if she is returned to the mother. There is an anxious bond between the child and her mother. This anxious attachment and lack of secure placement would impact negatively on the child's development. Also there is substantial risk the child may suffer harm through neglect should she be returned to the care of her mother. [58] The child continues to be at substantial risk of physical harm due to neglect. The mother was unable to overcome the risks factors which led to this finding despite services being put in place to assist her. The child continues to be in need of protective services. The child can not be returned to the care of the mother and be adequately protected in the foreseeable future. It is not possible to place the child with relative of the mother. PSYCHOLOGICAL FATHER: [59] The psychological father has positive relationship with the child. He provided help to the mother in caring for the child. He was playful with the child. However he was never responsible for caring for this child on his own. The Court has serious concerns about the psychological father's motive in seeking custody. He obviously wanted to continue relationship with the mother. He is charged with assaulting the mother during disagreement about the continuation of their relationship. Shortly before the current proceedings, he attended at the mother's residence in breach of Recognizance. The child still would be at risks of exposure to violence in the tumultuous relationship between psychological father and mother. The persons identified to help him in the care of the child did not testify on his behalf. There are many unanswered questions about the stability of his life and his residence and the nature of his relationship with the mother. The psychological problems identified by Mr. Bryson in his Assessment have not been addressed by the psychological father. It would not be in the child's best interests to place her in his long term care and custody. BIOLOGICAL FATHER: [60] The biological father does not have relationship with the child and the child does not know him as her father. The Court is uncertain about the father's. ability to care for the child on long term basis. There is evidence that he provided care to the mother's older child with the assistance of his mother. He has the support of his mother and the maternal grandmother indicated that she would support the child being placed in his care. [61] The Agency does not know whether his residence is an appropriate placement since they did not have time to assess his abilities and circumstances. [62] The biological father indicated to the Agency in February an intent to seek custody of his child if the mother was unable to care for her. He was not able to introduce plan for consideration by the Court until September. The Agency agreed to add him as party to the proceedings but he was unable to participate in the proceedings until September 2005 when it was too late to assess his abilities. [63] The Court is uncertain whether it is possible to place the child with him pursuant to Section 42 (3) of the Act., [64] The maximum time limits pursuant to the statute have expired and Court must either place the child in the permanent care of the Agency or with the biological father. [65] have considered the plan of the Agency and the plan of the biological father. find the plan of the Agency is in the child's best interests. In determining the child's best interests have considered that no bond exists between the child and the biological father and further disruption in the continuity of the child's care would have negative impact on the child. The father's ability to care for the child and to provide the child with positive relationship in secure home environment which is important for the child's future development is unknown. The biological father's lack of commitment to the child prior to February 2005 raises questions about his long-term commitment to care for the child. [66] Section 47 (2) provides: (2) Where an order for permanent care and custody is made, the court may make an order for access by parent or guardian or other person, but the court shall not make such an order unless the court is satisfied that A.(a) permanent placement in family setting has not been planned or is not possible and the persons access will not impair the childs future opportunities for such placement; (b) the child is at least twelve years of age and wishes to maintain contact with that person; (c) the child has been or will be placed with person who does not wish to adopt the child; or (d) some other special circumstance justifies making an order for access. [67] The Court has the authority to make an Order for access after permanent care and custody Order is made. The Court is instructed not to make an Order for access unless the Court is satisfied that permanent placement in the family setting has not been planned. The Agency plans permanent placement in family setting. Allowing access to the mother and psychological would impair the child's future opportunities for such placement since they are unlikely to change the circumstances which led to the child being placed in the permanent care of the Agency in the foreseeable future. Therefore, the Court finds that an Order for access is not appropriate with respect to the mother and psychological father. [68] There are special circumstances which justify making an Order for access with respect to the biological father. [69] The child is not yet three years old. It may be possible to place the child with her biological father and his family. The biological father's circumstances and parenting capacity could have been assessed prior to the final hearing in October but he was unable to participate until September 2005. The Agency knew he wanted to present plan of care for the child in February and later agreed to his participation but did not take any steps to assess his circumstances until he was formally added as party when it was too late. While the father was tardy in seeking relationship with the child there was still plenty of time between February and September for his circumstances and capacity to be assessed. [70] The Court is satisfied that an access Order for a limited period of six months (to expire on April 13, 2006) is appropriate in order to have the father\'s parenting capacity and circumstances assessed. The Agency is to arrange for a parental capacity assessment and the father is to make himself available for an assessment. Access between the child and the father will be in the discretion of the Agency and will allow the child and the father to be viewed by the Assessor. [71] The access Order will expire automatically on April 13, 2006 unless there is an application to vary the Order. [72] The Court is satisfied that this limited access Order will not impair the child's future placement for permanent placement in family setting given the child's young age. DARRYL W. WILSON, J.

The Agency applied for permanent care of a young child, with no access to the parents. Each of the mother, the biological father and the psychological father sought to have the child placed in their care. The child had been apprehended due to unsafe and unhealthy living conditions. The mother and psychological father no longer lived together and for the past few months, the mother had been maintaining a clean and tidy apartment and attempting to improve her education and had taken parenting courses. The psychological father, with whom the mother had ended a tumultuous relationship, wanted the child returned to his care, stating that he planned on residing with the mother who would assist him in caring for the child. The mother was against this plan. The biological father only reappeared on the scene after the child was taken into care and acknowledged that the child did not know him as her father. Child placed in the permanent care of the Agency with no access to the mother or the psychological father; access ordered to the biological father for a period of six months at which time the access order will expire automatically unless an application to vary is made; the Agency is to arrange for a parental capacity assessment of the biological father. The child continued to be at substantial risk of physical harm due to neglect if she was returned to the mother's care and the child would be at risk of exposure to violence if returned to the psychological father's care due to the tumultuous relationship between the mother and him. Although some improvements had recently been made in the mother's life, she had a history of frequent changes of residence and did not appear able put the child's needs ahead of her own. The Agency had not had an opportunity to assess the appropriateness of a placement with the biological father.

2005nssc364.txt

J. QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2009 SKQB 317 Date: 2009 07 30 Docket: Q.B.G. No. 1107/09 Judicial Centre: Regina BETWEEN: PAUL MATTHEW SINNETT and WESTERN CHRISTIAN COLLEGE and THE OFFICE OF THE RENTALSMAN Counsel: Paul Matthew Sinnett for himself Kathryn Deveau for Western Christian College JUDGMENT Dawson J. July 30, 2009 [1] This is an appeal by Paul Matthew Sinnett, the tenant, pursuant to s. 72 of The Residential Tenancies Act, 2006, R.S.S. 2006, c. R-22.0001 (the “Act”) from a decision of a hearing officer appointed under the Act, who, pursuant to ss. 58, 68 and 70 of the Act, ordered that the landlord be given possession of the tenant’s rental unit and that a writ of possession be issued to place the landlord in possession of the rental unit. [2] In this case, the landlord, Western Christian College, made an application pursuant to ss. 68(2)(a)(iv) of the Act, for an order for possession of the tenant’s rental unit. The grounds for the application were that the tenant had unreasonably disturbed other tenants within the meaning of ss. 68(2)(a)(i) of the Act. [3] The tenant’s notice of appeal set out the following: Evidence that the police were called for the Landlord. That my doctor thinks or the Rentalsman claims I’m mentally ill. That I’m evicted from the noise and trouble started from the Landlord. [4] The material available for review is limited to the notice of appeal from the decision of the hearing officer filed by the appellant, the documents filed by the hearing officer, and the decision of the hearing officer. [5] Section 72 of the Act provides the right of appeal from the decision of hearing officer. Section 72(1) states: 72(1) Any person who is aggrieved by decision or order of hearing officer may appeal the decision or order on question of law or of jurisdiction to judge of the Court of Queen’s Bench within 30 days after the date of the decision or order. [6] In this type of appeal, the court is statutorily restricted to addressing questions of law or of jurisdiction. This court may not revisit the questions or issues of fact determined by the hearing officer. This appellate function means that where there is some relevant evidence to support finding of fact, that finding may not be disturbed on appeal. Only when there is not relevant supporting evidence is the line between valid non-appealable finding of fact and invalid appealable finding crossed. (See Farm Credit Corp. v. Strelioff (1990), 1990 CanLII 7030 (SK CA), 87 Sask. R. 52 (Sask. C.A.) at para 8-15; Reich v. Lohse (1994), 1994 CanLII 4691 (SK CA), 123 Sask R. 114 (Sask. C.A.); Rehaume v. Dodd, 2003 SKQB 356 (CanLII), [2003] S.J. No. 524 (Sask. Q.B.); Jamieson v. Adams, 2004 SKQB 212 (CanLII), [2004] S.J. No. 433, 132 A.C.W.S. (3d) 779 (Sask. Q.B.)) [7] The tenant has not raised any true issue as to the jurisdiction of the hearing. In my view, the hearing officer had jurisdiction to hear and determine the matter in issue. [8] The notice of appeal and arguments presented by the tenant all relate to the facts as found by the hearing officer. They contain no error of law. There were facts before the hearing officer to support his finding that the tenant had significantly disturbed other tenants. There was ample evidence to support the hearing officer’s decision on all of his findings of fact. It is not open to me to overturn her findings of fact. [9] The appeal is therefore dismissed. J. C. L. DAWSON

This is an appeal by the tenant, pursuant to s. 72 of the Residential Tenancies Act from a decision of the hearing officer appointed under the Act, who, pursuant to ss. 58, 68, and 70 of the Act, ordered that the landlord be given possession of the tenant's rental unit and that a writ of possession be issued to place the landlords in possession of the rental unit. HELD: The Court reviewed the facts and found the tenant had not raised any true issues as to the jurisdiction of the hearing. It was the Court's view that the hearing officer had jurisdiction to hear and determine the matter in issue. The notice of appeal and arguments presented by the tenant all relate to the facts as found by the hearing officer and contain no error of law. There were facts before the hearing officer to support his finding that the tenant had significantly disturbed other tenants. Further, the Court found there was ample evidence to support the hearing officer's decision on all his findings of fact. Appeal dismissed.

8_2009skqb317.txt

nan U.F.C. of 1983 105 J.C.S. IN THE UNIFIED FAMILY COURT JUDICIAL CENTRE OF SASKATOON BETWEEN: MARY KLASSEN and JOHN KLASSEN RESPONDENT Mr. J. Gillis for the applicant Ms. T. Holizki for the respondent ORAL JUDGMENT GAGNE, J. DATE: February 12, 1985 The applicant seeks a division of matrimonial property pursuant to the provisions of The Matrimonial Property Act, custody of Randy, 14 years of age and Amanda, 8 years of age, pursuant to The Infants Act and maintenance for the said children pursuant to The Deserted Wives' and Children's Maintenance Act. The parties were married in Mexico in October, 1964 and shortly thereafter moved to Saskatchewan. In 1977, the family lived in Hague. The respondent had job operating back-hoe. They owned modest home and equity in the said home of approximately $16,000.00. The family had some difficulty getting along on the respondent's earnings. The respondent was totally in charge of the financial matters in this household. On May 20, 1977, the respondent won $100,000.00 lottery. $65,000.00 house was purchased, $11,000.00 worth of furniture was purchased, $15,000.00 mini-motor home was purchased and the respondent bought $12,000.00 motor vehicle. The family took more holidays and did more travelling. The respondent borrowed some money and bought some trenching equipment and went into business on his own. This business failed and resulted in substantial loss. The trenching equipment was repossessed, the matrimonial home had to be sold and the mini-motor home was gone. At the time of trial, the parties had the proceeds of the matrimonial home in the amount of $12,240.00, lot in Hague valued between $5,000.00 and $7,000.00, the applicant's furniture and household goods, the respondent's furniture and household goods, 1977 Mercury automobile, motorcycle, lawn mower and some of the respondent's tools. The respondent is in arrears of maintenance for the two younger children in the amount of $1,800.00. The respondent's work is seasonal and he is presently on unemployment insurance benefits. The applicant complains about the respondent's use of alcoholic beverages. am satisfied that the respondent, at times, abused alcohol and spent more money on alcohol than he should have. The respondent did not lose his licence and did not miss work because of his consumption of alcohol. The respondent was in charge of the family finances and the $100,000.00 in 1977. In few short years, there is little left. The respondent has not fully accounted for the family finances from 1977 to 1981. am satisfied that the money was spent on the family and lost in the trenching business. I do not find that the respondent dissipated the matrimonial property within the meaning of The Matrimonial Property Act. The respondent will be entitled to keep his 1977 Mercury motor vehicle and his tools and other properties in his possession as his own. The applicant will be entitled to keep household furniture and household goods, the motorcycle, lawn mower in her possession as her matrimonial property. The remaining matrimonial property are the proceeds of the matrimonial home in the amount of $12,240.00 and the lot in Hague, which value at $6,000.00 for total of $18,240.00. The respondent mismanaged the family financial affairs and the property should not be divided equally. The applicant's share will be $10,240.00 and the respondent's share will be $8,000.00. Out of the respondent's share, he will pay the arrears of child support to the applicant in the sum of $1,800.00. He will also repay the applicant half of $360.00 rent which he collected and used for his own purposes for the sum of $180.00. From the respondent's $8,000.00, there will be deducted $1,800.00 and $180.00 leaving due to the respondent $6,020.00. The respondent will have, as his share of the matrimonial property, the lot in Hague as shown on exhibit P-4. This is already in the name of the respondent and the applicant will discharge her caveat, 88PA11713. The applicant will have custody of the two children of the marriage, Randy and Amanda and the respondent will have reasonable access.

Division of matrimonial property. Husband made modest living and, eight years ago, won $100,000 in lottery. The lottery money was spent on household finances and lost in husband's small business venture. Husband 'spent more money on alcohol than he should have'. HELD: This did not amount to dissipation of matrimonial property within the meaning of the Act. Husband's mismanagement of the family's financial affairs was grounds for unequal division of the property:

e_1985canlii205.txt

80 PROVINCIAL COURT OF SASKATCHEWAN PRINCE ALBERT IN THE MATTER OF INFORMATION#45414395 HER MAJESTY THE QUEEN and Carl Gerald Alexander Lathlin Ruling on Section Charter Application (Non-Disclosure) S.C. Carter, P.C.J J. Syrnick, CROWN PROSECUTORS, Prince Albert, SK. FOR THE CROWN. G. Bendig, BENDIG LAW OFFICE, Prince Albert, SK. FOR THE DEFENCE. Introduction 1. The accused is charged with committing number of break and enters of homes in Prince Albert, Saskatchewan. He pleaded guilty to many of these but denied involvement in three of them. The trial on those three charges began on April 29, 2003. After hearing evidence from the home owners, co-accused, and peace officers who investigated the incidents, the Crown advised the court of its intention to call one Ace Carlos Whitecap to the witness box. He had been subpoenaed by the Crown and, unknown to the prosecution, had been sitting in court listening to the other Crown witnesses. Defence counsel objected on this basis but he also argued that the Crown had ambushed him and his client. He said that the Crown had not disclosed their intention to call this witness and that they should not be permitted to do so. In addition, Ace Carlos Whitecap is also a client of Mr. Bendig’s and he would not be able to cross-examine Whitecap effectively or at all. He argued that if the Crown had informed him of its intention to call Whitecap to give evidence arrangements could have been made for other counsel to either take over the entire defence or, at the very least, sit in during the trial in order to effectively cross-examine this witness. 2. Crown counsel, Mr. John Syrnick, argued that although his specific intention to call Whitecap had not been disclosed to the defence, Whitecap was mentioned throughout the disclosure as co-accused and that calling him to the witness box should not be surprise to the defence. (1) Has there been failure to disclose on the part of the Crown? (2) If so, has the defence established, on balance of probabilities, that the impunged non-disclosure has prejudiced or had an adverse effect on the accused’s ability to make full answer in defence? (R.v. O’Connor, (1995), 1995 CanLII 51 (SCC), 44 C.R. (4th) (S.C.C.)). (3) If so, what is the appropriate remedy? 3. Since 1991 the Supreme Court of Canada has required full and meaningful disclosure from the Crown. The obligation to disclose is triggered by request by or on behalf of the accused which may be made at any time after the charge is laid. Compliance must be made by the Crown so that the accused has sufficient time to consider the evidence and the Crown’s case before election or plea. The Crown’s obligation to disclose is continuing one: R.v. Stinchombe, (No. 1), 1991 CanLII 45 (SCC), [1991] S.C.R. 326. 4. When determining remedy for non-disclosure the Supreme Court has held that entering stay of proceedings is last resort to be taken only when all other acceptable avenues of protecting the accused’s right to full answer and defence are exhausted. R.v. O’Connor, (supra). 5. In fashioning an appropriate remedy the court must take into account all aspects of the failure to make full disclosure. This includes the nature of the charge, delay, adjournments to date and at who’s request, the nature of the evidence not disclosed and the Crown’s explanation for the omission. The point in time at which failure to disclose occurs will impact on the relief. If at the beginning of trial, an adjournment may be appropriate. If on the 10th day of jury trial, there may be exclusion of evidence or the calling of witness may be precluded. In every case, the Crown should not be advantaged by its failure to disclose: R.v. Haynes, (1993), 1993 CanLII 4431 (NS SC), 125, N.S.R. (2nd), 161, S.C.); affirmed (1994), M.V.R. (3d), 317 (N.S.C.A.). (1) Has there been failure to disclose on the part of the Crown? 6. In my view there has been a failure to disclose. All sorts of people may be mentioned in police reports. Various people may be charged jointly or severally with the same offences. The accused should not have to guess whom the Crown is going to call to give evidence against him. Many people may be potential witnesses but the accused is entitled to prepare his defence on the basis of the witnesses the Crown is actually going to call to the witness box. In my view it is not good enough to simply say that Mr. Whitecap’s name was mentioned as co-accused in the disclosure given to defence. (2) Has the defence established, on a balance of probabilities, that the impunged non-disclosure has prejudiced or had an adverse effect on the accused’s ability to make full answer and defence? 7. In my view the defence has met this test. The prejudice to the accused’s right to make full answer and defence flows from not being told that Ace Carlos Whitecap would be a Crown witness. Had the defence been informed of this intention, defence counsel would then have been able to take the appropriate steps to properly protect the interests of both Whitecap and Lathlin. He cannot cross-examine his own client but Whitecap must be cross-examined if he is called to give evidence. Effective cross-examination is based upon proper preparation and is often based upon other evidence given by other witnesses in the trial quite apart from what they may have said or not said in statements or can-say sheets. The Crown’s failure to disclose his intention to call Whitecap as witness has, in my view, seriously damaged the accused’s right to effective representation with respect to the cross-examination of this witness. (3) What is the appropriate remedy? 8. stay of proceedings is out of the question. The accused’s right to full answer and defence has been prejudiced only with respect to the cross-examination of Whitecap. However, requiring another lawyer to step in to cross-examine the witness would not be appropriate. At the very least the other lawyer would have to sit through the examination-in-chief. That lawyer should have sat through the entire Crown case in order to be as effective as possible in the cross-examination. Indeed that lawyer might have had to have taken over the case entirely in order to be sure to protect the interests of both Mr. Whitecap and Mr. Lathlin. In my view, the only appropriate remedy is to refuse to allow the Crown to call this witness. 9. The Crown will not be permitted to call Ace Carlos Whitecap to give evidence in this trial. DATED this 26th day of May, A.D., 2003, at the City of Prince Albert, in the Province of Saskatchewan. S.C. Carter, Provincial Court Judge

The accused was charged with a number of break and enters. After hearing evidence, the Crown advised the Court that it intended to call 'Ace' to the stand. Ace had been subpoenaed and had been sitting in the Court listening to other Crown witnesses. Defence counsel objected and claimed the Crown had not disclosed this witness. Ace was also a client of defence counsel and so defence counsel would not be able to cross-examine Ace. HELD: The Crown failed to provide proper disclosure to defence counsel, the non-disclosure had an adverse effect of the accused's ability to make full answer in defence and the appropriate remedy was to refuse to allow the Crown to call Ace as a witness.

2003skpc80.txt

J. 1996 C.R. SK 6458-6465 IN THE SUPREME COURT OF NOVA SCOTIA Her Majesty the Queen -v­ Delma James CROWELL DECISION ON SENTENCING Heard Before: The Honourable Justice J. Michael MacDonald at Halifax, Nova Scotia Oral Decision: August 28th, 1997 Written Release of Decision: December 3, 1997 Counsel: Bernadette Macdonald for the Crown Christopher Manning for the Defence At the outset, want to thank both counsel for their very thorough and helpful submissions. The Accused has plead guilty to five theft related charges. The total amount of money involved for all five counts exceeds $64,000. He is 43 years of age, and a former Chief of Police for the Town of Kentville. He used his position of authority as police chief to commit these crimes. The principles of sentencing that have developed over the years in this Country have recently been codified. They are set out in s. 718 of the Criminal Code of Canada. The relevant subsections are: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) after promote essential responsibility in offenders, and acknowledgement of the harm done to victims and to the community. Section 718.1 provides: sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 (a) (iii) provides: court that imposes sentence shall also take into consideration the following principles: (a) sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (iii) evidence that the offender, in committing the offence, abused position of trust or authority in relation to the victim... shall be deemed to be aggravating circumstances; (b) sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. The Nature of the Crimes: The Accused, as stated, has plead guilty to five counts involving theft related offences. Included within these counts is litany of some twenty separate offences all of which are too ­numerous to review in detail today. They can however be summarized as follows: The first count involves thirteen offences over period of four years against the Town of Kentville involving an amount of money of $28,876.96. The second count involves three offences from September of 1993 to October of 1994 against the Province of Nova Scotia Safe Graduation Fund in an amount of $11,692.43. The third count involves an offence from July 1993 to October 1994 against the Atlantic Association of Chiefs of Police in the amount of $17,328.37. The fourth count involves two offences from 1989 to December of 1993 against the Annapolis Valley Chiefs of Police involving an amount of $5,312.00. The fifth count involves an offence from April 1991 to February 1992 against the Nova Scotia Chiefs of Police Fall Conference in an amount of $1,286.19. Thus for all charges we have total amount involved of $64,495.95. The Accused's Personal Circumstances: The Accused is 43 years of age. He has grade 12 education. He has been police officer since 1975 in various locations in Atlantic Canada. He became Chief of the Kentville force in March of 1988 and remained in that position until the Fall of 1994. He is married with two children. Aggravating Factors: As the statutory guidelines provide am to consider all aggravating factors. In this regard consider the following: Mr. Crowell committed these offences while in position of trust. He used his position of authority to plot and scheme against his unsuspecting colleagues and associates. police chief in community the size of Kentville is normally held in high esteem and often blindly trusted. Secondly, these offences obviously involved significant amount of premeditation as revealed by the detailed forensic report exhibited before me. Mr. Crowell was involved in detailed and sophisticated premeditated series of schemes involving the use of trust accounts and the creation of false documents. Thirdly, consider Mr. Crowell's "modus operandi" to be an aggravating factor. Mr. Crowell has created widespread and tremendous web of deceit against trusting and well-intentioned organizations. The scope of this deceit is astonishing. Particularly offensive are the charges against the Safe Graduation Fund; circumstance where hard working people are trying to promote something positive. Mr. Crowell used his position of authority to commit theft against that fund. Also troubling is the offence involving the expense claim purportedly submitted on behalf of colleague (who himself was decent enough to stay with relatives as opposed to making travel claim only to have Mr. Crowell steal this money). It is also troubling to consider the offence involving Mr. Crowell's squandering the efforts of the late Chief Innis (when Chief Innis attempted to secure grants from the Province for worthy cause). Mitigating Factors: am as well obliged to consider mitigating factors in this matter. The fact that Mr. Crowell has plead guilty is significant mitigating factor. His guilty plea has saved the administration of justice an incredible amount of time, effort and money. He has also saved up to sixty-six witnesses potential embarrassment, discomfort and inconvenience. Secondly, Mr. Crowell has no criminal record and obviously he has been industrious throughout his lifetime. Thirdly, it is clear from the circumstances of this case that Mr. Crowell has lost his career as result of his involvement in these incidents, and that the sentencing process today is in fact an addition to the humiliation he and his family have endured. Conclusion: Thus in sentencing you today Mr. Crowell, am satisfied that by pleading guilty to these serious crimes you have been specifically deterred, and further rehabilitation should not be major consideration for me. After all you have brought humiliation and disgrace upon yourself. You once held position of prominence and respect in your community. Your actions have now earned you the label of “thief”. In these circumstances do not feel that you are candidate to reoffend. However, premeditated crimes of this nature by individuals in positions of trust must be met with punishment that will emphasize general deterrence. Unfortunately there have been all too many individuals who used positions of trust to commit theft related offences. Arguably the most sacred of all trust is that of peace officer sworn under oath to uphold and enforce the law. Your sentence Mr. Crowell must serve as a message of deterrence to all individuals holding positions of authority. The late Pace, J.A., of the Nova Scotia Supreme Court (Appeal Division) in v. Hennigar (1983), 58 N.S.R. (2d) 110 at page 116 noted: ...in crimes of sophisticated nature carried out by intelligent people in planned and subtle ways against ...trusting people the sentence must be such not only to deter the offender but also to deter those who might follow his example. This message is especially important for all other peace officers who may be inclined to abuse their positions of trust. Peace officers serve on the front line of our justice system. Their integrity must be beyond reproach. You have shamefully tarnished that image and in so doing you have done tremendous injustice to your profession. Your unlawful conduct must be denounced by significant period of incarceration To do otherwise would be serious disservice to the statutory principles that have just referred to. In light of all the circumstances of this case am prepared to accept the joint recommendation of counsel calling for combined sentence of twenty months. can assure you that but for your guilty plea (and the other mitigating factors), your term of incarceration would have been much lengthier. I sentence you Mr. Crowell to four months consecutive on each count for a total of twenty months incarceration in a provincial institution. I direct that a restitution order be prepared under s. 738 of the Criminal Code of Canada to provide for restitution for the five victims in the amounts as detailed in Exhibit 3. make no recommendation to the Correction Services as to where you will be incarcerated or when, if at all, you would receive temporary leaves of absence. The able submissions made by your counsel before me can be made with equal vigour to the Correctional Services. It is within their bailiwick to determine those two issues. J. Michael MacDonald

The offender, a former police chief, plead guilty to five theft related charges. The amount of money involved for all five counts was $64,000. He used his position of authority as police chief to commit the crimes. The offender did not have a criminal record. The offences were premeditated, and directed against trusting and well-intentioned organizations. Sentencing the offender to four months consecutive imprisonment on each count, for a total of twenty months, and ordering restitution to the victims, that the sentence must serve as a message of deterrence to all individuals who hold positions of trust and authority. This message is particularly important to police officers, whose integrity must be beyond reproach.

4_1997canlii776.txt

C.A. No. 122686 NOVA SCOTIA COURT OF APPEAL Hallett, Freeman and Bateman, JJ.A. BETWEEN: FABIAN LOWELL BINDER and THE ROYAL BANK OF CANADA, body corporate and THE BANK OF MONTREAL, body corporate Respondents Robert Murrant, Q.C. Chris Lockwell for the Appellant William L. Ryan, Q.C. John E. MacDonell for the Respondent The Royal Bank of Canada John D. Maclsaac, Q.C. for the Respondent The Bank of Montreal Appeal Heard: April 1, 1996 Judgment Delivered: April 1, 1996 THE COURT: Leave to appeal is granted and the appeal allowed per oral reasons for judgment of Bateman, J.A.; Hallett and Freeman, JJ.A. concurring. The reasons for judgment of the Court were delivered orally by: BATEMAN: J.A. This is an appeal from the decision of a chambers judge striking the appellant's Statement of Claim. The appellant and Max Gordon were equal shareholders in company known as "Gorbin". It is alleged that (i) in 1972, without the appellant's knowledge or consent, Mr. Gordon placed $75,000 second mortgage on certain property owned by the company; (ii) the cheque for the third and final instalment of the mortgage proceeds, drawn on the Bank of Montreal, was made payable to Mr. and Mrs. Gordon and Gorbin; (iii) Mr. Gordon endorsed that cheque on behalf of Gorbin and deposited the proceeds to the Royal Bank account of Gordon's Concrete Products Ltd., company owned by him; (iv) Gorbin's shareholder's resolutions and banking resolutions required the signatures of both Mr. Gordon and the appellant on legal documents and cheques; (v) Gorbin did its banking with the Bank of Nova; (vi) the appellant first became aware of the mortgage in 1982 when it was foreclosed. In August of 1995 the appellant initiated this action against the respondent Banks. The appellant's action alleges conversion, breach of fiduciary duty and negligence by the Banks. The respondents applied to the Chambers judge under Civil Procedure Rule 14.25(a), to strike the Statement of Claim on the basis that it disclosed no reasonable cause of action or, alternatively, "for an Order striking the Statement of Claim as being barred by the Limitation of Actions Act, R.S.N.S. 1989, c. 258, as amended". In a thorough and thoughtful decision the Chambers judge determined, pursuant to Civil Procedure Rule 25.01, that the action was statute barred and struck the Statement of Claim. Having done so, it was unnecessary for her to consider the application under Rule 14.25. The relevant part of Civil Procedure Rule 25.01(1) provides in part: 25.01(1) The court may, on the application of any party or on its own motion, at any time prior to trial or hearing, (a) determine any relevant question or issue of law or fact, or both; It appears from the material before us that neither of the parties brought to the attention of the Chambers judge, the law regarding applications pursuant to Civil Procedure Rule 25.01. In Curry v. Dargie (1984), 62 N.S.R. (2d) 416 (A.D.), MacDonald, J. A. wrote, in concurring judgment, at p. 430: To my mind the only proper method of having the issue determined in this case before trial was on proper application under Rule 25. This rule, however, appears to be applicable only where the parties agree to submit question of law to the court based upon an agreed statement of fact McCallum v. Pepsi Cola Canada Ltd. et al. (1974), 15 N.S.R. (2d) 27;... These comments were approved by this court in Seacoast Towers Services Ltd. v. MacLean (1986), 1986 CanLII 122 (NS CA), 75 N.S.R. (2d) 70. (see also Brown v. Dalhousie Board of Governors (1995), 1995 CanLII 4239 (NS CA), 142 N.S.R. (2d) 98 (N.S.C.A.)) This court held in Abbott and Steeves v. Cook (1980), 1980 CanLII 2548 (NS SC), 40 N.S.R. (2d) 614 that the Statute of Limitations "does not authorize any procedure for deciding prior to trial the limitation issue pleaded in the defence", per MacKeigan, C.J.N.S.. The parties here did not submit an agreed statement of fact to the Chambers judge. Each party filed Affidavits at the Chambers hearing. Counsel for the Royal Bank argued that there was not dispute on the facts, and to the extent that there was, the Chambers judge accepted the evidence of the appellant, as to when he discovered the existence of the mortgage and the improper actions of Mr. Gordon. Nevertheless, the Chambers judge might not have accepted his evidence on this issue in view of the contents of Mr. Crawford's affidavit which clearly contradicted certain of the appellant's assertions. Therefore the determination by the Chambers judge did require findings of fact, in particular regarding the timing of the discoverability of the material facts by the appellant. In the absence of an agreed statement of fact, it cannot be assumed that the appellant brought forward all facts relevant to an application under Rule 25.01 and may have been relying upon Rule 14.25 under which evidence is not considered. Rule 25.01 was not specifically plead by the respondents in the Notice of Application. It was recognized in Seacoast Towers, supra, that there may be exceptional cases where an agreed statement of fact is unnecessary, for example, where the facts underlying the resolution of the legal issue are matter of public record. This case does not fall within any such exception. Accordingly, the Chambers judge erred in proceeding with the application pursuant to Civil Procedure Rule 25.01. It is unnecessary to consider the application to amend the Notice of Appeal. Leave to appeal is granted. The appeal is allowed with costs to the appellant, on the Chambers application, in the amount of $350 and on the appeal in the amount of $750 plus disbursements. The Order of the Chambers judge striking the appellant's Statement of Claim is set aside. J.A. Concurred in: Hallett, J. A. Freeman, J.A. 1995 S.H. No. 119788 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: FABIAN LOWELL BINDER and THE ROYAL BANK OF CANADA, body corporate and THE BANK OF MONTREAL, body corporate Defendants HEARD BEFORE: The Honourable Justice M. Jill Hamilton HEARD AT: The Law Courts, Halifax, Nova Scotia DATE: Thursday, October 26, 1995 APPEARANCES: Mr. Robert Murrant, Q.C., for the Plaintiff Mr. William L. Ryan, Q.C., for the Defendant The Royal Bank of Canada Mr. John D. MacIsaac Q.C., for the Defendant The Bank of Montreal Recorded By The Supreme Court of Nova Scotia Halifax, Nova Scotia C.A. No.122686 NOVA SCOTIA COURT OF APPEAL BETWEEN: FABIAN LOWELL BINDER and THE ROYAL BANK OF CANADA and the BANK OF MONTREAL Respondents REASONS FOR JUDGMENT BY: BATEMAN, J.A.

This was an appeal from the decision of a chambers judge striking the appellant's Statement of Claim under Rule 25.01 for being outside the limitation period. The parties did not submit an agreed Statement of Facts. Allowing the appeal, that the chambers judge erred in proceeding with the application pursuant to Rule 25.01. Rule 25.01 requires that the parties file an agreed Statement of Facts, save in exceptional circumstances, such as one where the material facts are clearly not in dispute.

b_1996canlii5599.txt

nan F.S.M. A.D. 1995 No. 112 J.C. R. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF REGINA IN THE MATTER OF HEARING UNDER PART OF THE CHILD AND FAMILY SERVICES ACT AND IN THE MATER OF J, Lj and L. Sandstrom-Smith for the Minister of Social Services representing herself representing himself ORDER AND REASONS THEREFOR ARMSTRONG J. January 15, 1999 J, Lj, and are all children of and L. The Minister of Social Services ("the Minister") seeks an order under s. 37(2) of The Child and Family Services Act, S.S. 1989-90, c. C-7.2 (the “Act”), permanently committing to the Minister all three children. The children were born: J, […], 1992 Lj, […], 1993 and T, […], 1995. At the conclusion of the hearing held to enquire into the matter, decision was reserved. It is now ordered, pursuant to s. 37(2) of the Act that all three children be permanently committed to the Minister, for the reasons that follow. Since the birth of the oldest child, J, the Department of Social Services (the “Department”) has been very much involved. The decision by the Minister to make the present application was not taken in haste. The Department has struggled for six years to overcome the dysfunction in this family and the risks to the children, without success. The following shows the periods up to the commencement of the hearing during which each of the children has been in the care of the Minister under various orders or agreements. Period Length of Time nan March 16, 1993—June 17, 1993 months September 23, 1993—May 20, 1994 months June 30, 1995—Present years, months Lj September 23, 1993—May 20, 1994 months June 30, 1995—Present years, months nan September 11, 1996—Present years, month In addition, during periods when there was child or children at home, help was provided to the parents through parent aides supplied under contracts for the following periods: October 1992—March 1993 December 1994—February 1995 July 1995—October 1996 March 1997 to the present. Parent aide assistance since March, 1997 has been to supervise visits with the children and provide support for C. The Minister called 18 witnesses. and may not be bad people but they have failed as parents. They are both much too irresponsible to have the care and control of all or any of their children. In argument at conclusion of the hearing agreed that as of now this is so. He, however, seems to think that he will yet overcome his problems, all of which he blames on alcohol, and prove himself good, responsible father. He wants time. He says he was good father to his children from previous marriage. He at least recognizes that he has real problem but he has known this for years and has failed all previous chances to change. It is doubtful whether realizes that she has all along been unable or unwilling to take action to protect the children against their exposure to domestic disharmony and violence. She has always appeared more anxious about excusing L than about protecting the children. It is also doubtful that she recognizes or accepts that when she fails to properly supervise or protect the children it is either because she does not recognize the needs of the children or if she does, she cannot will herself into action. It may be that she cannot help being the way she is because of some underlying condition but such fact does not, of course, go any way towards meeting the needs of the children. She is described by Elizabeth Ivanochko, Ph.D., psychologist, as having dependency syndrome. In short, she does not seem up to doing things with respect to the children herself or perhaps even want to. When she can she relies on others including L. apparently has much more ability than does in such as housekeeping and cooking but is great part of the problem. He is an abusive alcoholic yet C is in denial as to his faults. There are apparently no other adults outside of foster care homes having any connection with the children and the evidence is clear that the children have been and continue to be in need of protection. The behaviour of both C and L in relation to the hearing could, itself, be enough to support a conclusion under s. 11(b) of the Act that there is no adult person able and willing to provide for the children's needs and physical or emotional harm may come to the children if it has not already. Both and are self-centred to where the result is indifference to the needs of the children whenever there is trouble. When the hearing was called on October 19, 1998, neither nor were present. Representatives from the Department eventually got the attention of by going to their home not once, but twice (she pretended to not be home the first time) and persuading her to come with them to court. was not at home. When she got to court she said she did not have lawyer and did not want lawyer because Legal Aid lawyers were of no help to her and she was going to lose anyway. Yet she had been told two months previously at chambers hearing that she should get another lawyer, the one she had had having withdrawn. did not show. The hearing proceeded. On the third day advised the court that she had separated from and that this time it was for good. She went on to say that she now wanted to get lawyer feeling that without in her life she might be more successful in getting her children back. The hearing was adjourned so that could get lawyer and to give her lawyer time to prepare. On the day the hearing was reconvened appeared but did not. representative from the Department went to C's home and spoke to her but was unable to persuade her to attend the hearing. She learned from that had not tried to get lawyer. The court was told by that just before the hearing commenced in October he had been told by that she did not want to attend. He had thought she should and because she would not he decided to go and get drunk which apparently he did. (C had earlier in the hearing told the court that during an adjournment for lunch she had seen in the bar). and do not want to see the children permanently committed to the Minister. Yet neither nor could muster the will to exercise enough responsibility to even appear at the whole hearing into the matter, let alone seek legal assistance and to try to make their case against permanent committal. Since the birth of there have been number of occasions when, because of L's behaviour, it became necessary in the opinion of social workers from the Department that the children be removed from the home to protect them from violence and disharmony in the home when drank. In each case C, after being given safe haven with the Department's assistance for herself and the children, decided after day or two to go back to and leave the children in the care of the Minister. simply chose over the children. But chooses alcohol over both and the children. The evidence satisfies me that physically abused C. was, and continues to be in denial of this or to excuse it. The evidence also satisfies me that the children's exposure to the domestic violence and disharmony may have harmed and would if allowed to continue, likely further harm the children emotionally. The children have been and accordingly continue to be in need of protection as provided by s. 11(a)(ii) and (vi) of the Act. The violence and disharmony is in my view another symptom of being unable or unwilling to provide for the needs of the children. The children, if left with their parents, could well suffer physical harm through lack of supervision as in s. 11(a)(i) of the Act. It is difficult to know whether the parents fail to recognize the danger in certain situations or whether, although recognizing it, do not act on the recognition or, particularly in the case of C, have become so used to reliance on parent aide, as to leave it to the parent aide when present to do the acting. Not too long ago during visitation period in the home of and L, there was an instance of waving an open pair of scissors in the face of in the presence of the parent aide and C. did nothing until after the parent aide had intervened. Would she have done anything if the parent aide had not been there? There are other instances that indicate that probably would not have. For example, with toddler about there was an open stairwell left unguarded by any kind of gate. In another instance one of the children was left unattended in position near the hot stove and it could easily have fallen over onto or against the hot stove. Only the parent aide intervened to do something about it although it should have been obvious to both and L. And did not herself seem to realize the necessity of supporting baby’s head when carrying it but had to be always reminded of this by the parent aide. And she could not seem to remember to do so even after much reminding. Something else which I should specifically mention is the fact that L has recently pleaded guilty to a sexual assault on an eight year old girl. He says the guilty plea was made “with explanations”. His explanation as given in the present hearing is alcohol. He had not been sentenced at the time of the present hearing. I do not have enough of the facts to be able to act on it but it could, of course, depending on the facts, be a ground under s. 11(a)(iii) of the Act for a finding of need for protection. Typically think, instead of being concerned for her children tries to protect L. She seems to think the complainant lies even though has pleaded guilty. And she excuses whatever he did as being the result of his drinking. has an attitudinal problem. Perhaps it is the dependency syndrome. From the very beginning, that is from the birth of J, has been relying on others. She does so as if it was matter of entitlement to do so. For example when still in the hospital after the birth of J, needed to be fed, tried to get nurse to do it rather than do it herself. Over the years nothing much has changed. has failed to learn much about parenting and what she has learned she has trouble putting into practice. She leans on others whenever she can. There are many, many instances of what, in themselves, may be relatively insignificant taken in isolation but when added together amount to clear evidence of the children needing protection because and are not, either alone or together, able and willing to provide for the children's needs. One of those needs is the need for proper supervision which there has not been. Another is the need to protect the children from exposure to the domestic disharmony and indeed domestic violence that has been part of the ongoing pattern of living of and L. Of course if C remains separated from L the domestic disharmony, at least between those two, would in the future not be a factor, but then C simply does not have the competency to parent one of the three let alone all three children on her own. Again, maybe there is something in C's makeup that she cannot overcome but while this may mean that she is not at all to be blamed for her inadequacies as parent, still it means that adequate parenting must be found for the children. has been diagnosed as having Attention Deficit Disorder (ADD). In early 1997 was attending classes with the idea of getting her grade and eventual grade XII. She apparently exhibited symptoms of ADD and was referred for medical diagnosis which found there to be ADD. She was placed on medication. According to report filed, assessments completed subsequent to her going on medication showed some improvement in some areas of learning ability. However, there has not been any change in her attitude or ability in relation to parenting. Adequate parenting has been found for the children in the foster home in which they are now residing. But this situation cannot be guaranteed to last. One of the foster parents is not in good health and the prognosis is not good. There is no possibility of the children being adopted by these foster parents. and have had years to develop the ability and willingness to properly care for the children. They have not done so and do not appear to be much closer than they ever were, although has almost inevitably acquired some knowledge and skills she did not have before. have not been given any reason to believe that and or either of them can sufficiently change within six months or year, or ever, to the point where the children or any of them could safely be returned to or L. An officer of the Department has recommended permanent committal to the Minister. There has been testimony that adoption of all three children by one family is possible. accept the evidence that the children need and deserve the stability that this could provide. agree with the recommendation for permanent committal. have no authority to attach any conditions to the order. should comment, however, that the testimony makes it clear that regardless of their deficiencies and inadequacies and love their children. There has always been some contact through visits even though, particularly in the case of L, it has been sporadic at times. There has been testimony that during visitation the interaction between the parents and the children may not be just what others think it should be but it is clear from the testimony that the affection and love are there. mention this for whatever assistance it may be should consideration be given to an open adoption if such appears possible.

The Minister of Social Services sought an order under s.37(2) of the Child and Family Services Act to permanently commit all three children to the Minister. The Department of Social Services had been involved with the family since the birth of the oldest child. The children had been in the care of the Minister at various times and parent aides provided help to the parents when there was child or children at home. The Minister called 18 witnesses. HELD: All three children were committed permanently to the Minister. 1)The mother appeared to be more anxious about excusing the father, who was an abusive alcoholic, than about protecting the children. The mother was unable to parent any of the children on her own. It was concluded under s.11(b) of the Act that there was no adult person able and willing to provide for the children's needs and physical or emotional harm may come to the children if it had not already. 2)The father had recently pleaded guilty to sexual assault on an eight year old girl which could, depending on the facts be a ground under s.11(a)(iii) of the Act for a finding of need for protection.

e_1999canlii12492.txt

2002 SKQB 155 A.D. 2001 No. 02984 J.C. Y. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF YORKTON BETWEEN: SHERI ANN STACHURA and EARL JOHN STACHURA RESPONDENT R.S. Yaholnitsky for the petitioner Respondent appeared on his own behalf JUDGMENT GEREIN C.J.Q.B. April 22, 2002 [1] This is an action in which the petitioner seeks a distribution of family property in accordance with The Family Property Act, S.S. c. F-6.3. The parties cohabited for some 2½ years and then married on August 14, 1993. After seven years and three children, they separated on November 13, 2000. This action was commenced on June 20, 2001. [2] The parties lived on an acreage and rented farm land. They carried on mixed farming operation. The respondent did the major part of the farm work with the petitioner providing assistance. The respondent worked off the farm as mechanic until 1996 when he began to provide that service from the farm. The petitioner also worked off the farm throughout the marriage. [3] In the circumstances, the family property should be divided equally. The valuation date is June 20, 2001, when this action was commenced. THE FAMILY HOME [4] The family home is an acreage which was purchased in the fall of 1990. The legal description is ptn. SE¼ 26-24-4 W2. The respondent continues to live there. An appraisal of it and the out buildings was done and the report filed. Absent any evidence to the contrary, accept the valuation and find the property to be worth $43,000.00. [5] When the property was purchased, the respondent sold his trailer and the sale proceeds of $12,000.00 were used to purchase the acreage. He now claims an exemption in that amount. However, the legislation does not permit such in respect to the family home in the circumstances of this case. FARM MACHINERY [6] The farm machinery comprises major portion of the family property. It is here that there is serious dispute in respect to what pieces of machinery constitute family property; what exemptions are available to the respondent; and what value should be attributed to the equipment which is subject to distribution. In coming to my conclusions, have weighed the oral testimony of several witnesses, including the parties, while also considering the content of large number of documents. [7] Neither party said anything about the value of the machinery. Rather, was referred to three appraisals; one which was done at the behest of the petitioner and two for the respondent. As is common, there is variance amongst the opinions. In addition, not every piece of machinery was valued by each appraiser. Thus, in respect to individual pieces of machinery there is one, two or three opinions of value. Where there is only one value, have adopted it. Where there is more, have taken the average value. [8] Ownership of the following machinery is not in dispute and it clearly is family property. find the value to be as indicated. (1) Duetz 1006 tractor 1,350.00 (2) Massey Ferguson 24' swather 333.33 (3) Massey Ferguson 18' swather 166.66 (4) White 16' swather 766.66 (5) New Holland 850 round baler 1,400.00 (6) Versatile 68' sprayer 250.00 (7) 29' Morris cultivator 1,500.00 27' White deep tillage cultivator 400.00 (9) 61 I.H. B-180 ton truck 1,900.00 (10) Dodge ton truck 500.00 (11) Versatile 68' harrows 333.00 (12) Westfield 7' 41' PTO auger 366.00 (13) Westfield 7' 36' PTO auger 250.00 30' Anderson deep tillage 500.00 (15) 1988 New Idea disc bine 2,500.00 (16) Melcam rockpicker 150.00 (17) Poly water tank 100.00 (18) Stock trailer 100.00 Total $12,865.65 [9] There are several other pieces of machinery which the respondent submits should not be included in any distribution. It is alleged they are owned wholly or in part by his father, Edmund Stachura; or are exempt, having been acquired prior to the marriage. The most significant piece is Versatile 160 tractor with fork and grapple. Again the valuations vary and conclude the appropriate value at the relevant date was $10,250.00. [10] This tractor was purchased on November 6, 1996, for $16,500.00 and the contract of sale is in the name of Edmund Stachura. Since that date, or shortly thereafter, the tractor has been in the possession of the respondent and used by him. The petitioner stated that she understood the tractor was given to the respondent by the father. However, over the years she obtained very little information about the farm machinery. [11] The respondent gave conflicting evidence. He testified that the father owned the tractor. Then he testified that he owned the tractor, but that he owed the father $16,500.00. There is no doubt about the fact that the respondent never paid the $16,500.00. When the respondent provided information for financial review dated March 20, 2000 (Exhibit P-15), he claimed to own the tractor. On the other hand, he extracted from that review the relevant balance sheet and shortly before this trial endorsed thereon that the tractor belonged to the father (Exhibit P-16). In the circumstances, have little confidence in the respondent’s testimony in this regard. [12] However, the father personally testified that he owned the tractor. He acknowledged that he had given like tractor to another son, but denied making similar gift to the respondent. He produced his capital cost allowance schedule for the year of 2000 and the tractor is listed therein. At my request, he produced his comparable schedules for the years 1999 and 2001. In neither of those years is the tractor listed. One can’t help but wonder whether the schedule in 2000 was part of scheme to keep the tractor apart from any matrimonial distribution. [13] However, when consider the testimony of the father coupled with the particulars of the contract of purchase, it is my conclusion that the father is the actual owner of the tractor. Accordingly, that piece of machinery is not included in the distribution. [14] It was also suggested that the father was the owner of Case 830 tractor which appears in the 2000 capital cost allowance schedule as well as in the 1999 one. Here there is no purchase contract, but conclude that the father did own the tractor at the relevant time. Morris Seed Rite also appears in the schedule, but am not persuaded this is the same as those owned by the respondent. Therefore, two 80-11 Seed Rites of value of $800.00 are included in the distribution. The same applies to 30' Morris rod weeder of value of $225.00. [15] There were several other pieces of machinery which the respondent testified were owned in part by his father and which are so endorsed in the balance sheet marked as Exhibit P-16. In giving his testimony, the father stated that he had no interest in any equipment owned by the respondent. Accordingly, reject the contrary assertions of the respondent and hold that the following pieces of machinery were family property at the relevant date and find the values to be as indicated. (19) M.F. 1155 tractor 3,933.33 (20) Case 970 tractor 4,400.00 (21) M.F. 851 combine 1,833.33 Total $10,166.66 [16] turn now to the exemptions claimed by the respondent. He testified that prior to the marriage he owned a Case 800 tractor and a J.D. 400 mix mill. The first was acquired from an uncle’s estate and the second was purchased many years ago. The petitioner did not contest either and the father confirmed both. Accordingly, I find them to be exempt. [17] The respondent claims an exemption in respect to Yamaha snowmobile. Over the years he has owned several machines and this began before the marriage. Tracing is possible, but the values are unclear. As a result, I allow a partial exemption and in doing so fix the value of the snowmobile at $800.00. [18] The respondent claims that 1990 Ford F-150 truck is exempt. In the past, the respondent has owned several vehicles which he sold and then purchased other vehicles, including trucks. However, the vehicles which were sold never formed part of the purchase price of any replacement vehicle. As a result, while the respondent owned a truck prior to the marriage it cannot be traced to the subject truck. Accordingly, the present truck is included in the distribution at the value of $4,000.00. [19] There are tools which are valued at $4,000.00. The respondent testified that prior to his marriage he owned tools which were destroyed in fire. He subsequently was paid $15,000.00 by way of insurance. He says all the money was used to replace his tools and claims all the present tools are exempt. have some reservations about the accuracy of the replacement, but what is more important is that tools were acquired during the marriage. Therefore, some tools are family property, but there also should be some exemption allowed. arbitrarily fix the value of the tools for distribution at $2,000.00. [20] Finally, at the relevant time the petitioner had an automobile of value of $1.400.00 and boat of value of $1,000.00. [21] In summary, the value of the machinery to be distributed is calculated as follows. (a) Farm machinery (1) to (18) 12,865.65 (b) Farm machinery (19) to (21) 10,166.66 (c) Seed Rites and rod weeder 1,025.00 (d) Snowmobile 800.00 (e) Ford l50 truck 4,000.00 (f) Tools 2,000.00 Total 30,857.31 To this must be added $2,400.00 for the automobile and boat resulting in a total of $33,257.31. [22] have had an opportunity to see the capital cost allowance schedule which forms part of the respondent’s income tax return for the year 2000. recognize that different considerations and calculations enter into the preparation of that claim. However, the amounts set out do indicate that the respondent owns line of machinery of significant value. Looking at that, my conclusions do not appear to be unreasonable. [23] The parties raised pigs. The petitioner believes that when she left in November, 2000, there were 121 hogs and pregnant sows. She does not know what was there on evaluation day, being June 20, 2001. The respondent’s testimony is that there were 110 hogs, 21 sows and 1boar on that date. have no reason to reject his testimony. Therefore, the value of the pigs is as follows. 110 hogs at $70.00 each 7,700.00 21 sows at $175.00 each 3,675.00 boar at $100.00 100.00 Total 11,475.00 [24] The respondent submits that the entire sum should be exempt because of the number of pigs he owned at the time of the marriage. He says the total then was 185 hogs and 17 sows. The petitioner says the number at that time was 40 hogs. have no way of ascertaining the correct number for there are no records. expect the number was more than stated by the petitioner and less than stated by the respondent. In the end, don’t believe it matters. [25] The uncontradicted testimony of the respondent was that in 1996 there were sows, boar and 48 hogs. That being so, whatever the number brought into the marriage, it had been reduced by the sale of animals. The exemption could not exceed what then remained. Any increase thereafter was an increase of family property free of any exemption. However, as there still are pigs there is an entitlement to an exemption which determine to be the value of the animals present in 1996. [26] calculate that value to be $5,905.00 made up as follows. 48 hogs at $110.00 each 5,280.00 sows at $175.00 each 525.00 boar at $100.00 100.00 Total 5,905.00 The amount which is available for distribution is $5,570.00. [27] The parties also owned cattle. As of the date of separation, there were 11 head on hand. In January, 2001, additional cows were purchased as part of the operation. In April, 20001, cow died and cows with calves were sold for $2,200.00. As result, as of June 20, 2001, there were 15 cows and $2,200.00 on hand. [28] There is difference of opinion about the value of the cows. The one appraiser stated the value to be $891.00 per animal; whereas the other fixed the value at $856.00. When the respondent purchased the cows in January, 2001, he paid $850.00 per animal. To me this seems the best indicator, subject to market fluctuations. Therefore, fix the value at $856.00 an animal and calculate the value of the cattle on hand on valuation date to have been $12,840.00. To that must be added the sum of $2,200.00 for the cows with calves that were sold. [29] In addition, there was bull with value of $1,119.00 and 14 calves with value of $250.00 each or $3,500.00. Finally, there were chickens worth $32.00. [30] In summary, the value of livestock to be distributed as between the parties is as follows. (a) pigs $ 5,570.00(b) cows 12,840.00(c) proceeds from sale of cows 2,200.00(d) bull 1,119.00(e) calves 3,500.00(f) chickens 32.00Total $ 25,261.00 [31] The one appraisal report makes reference to goats. do not know when they were acquired and decline to make any order in respect to them. OTHER PROPERTY [32] The remaining property which is subject to distribution consists of the following. (1) 1,200 bushels of barley 1,740.00 (2) 1,100 bushels of oats 1,265.00 (4) NISA account 788.35 (5) Co-op equity 1,598.70 (6) Bank account (respondent) 1,002.32 (7) Bank accounts (petitioner) 29.47 (8) RRSP (petitioner) 1,520.93 (9) Household furniture 2,500.00 (10) Payment to petitioner by respondent 2,500.00 Total 13,456.77 [33] There appears to be an RRSP registered in the name of the respondent. However, as best I can make out, it was acquired prior to the marriage. Accordingly, I treat it as being exempt. The interest earned would not be exempt, but have no evidence as to what that has been. Accordingly, do not take it into account. The respondent also claimed that his furniture was exempt. In law that is not so as the legislation provides otherwise and there are no circumstances which would remove the furniture from the purview of the legislation. [34] The respondent has submitted large number of debts and expenses which he submits should be taken into account. have concluded that only relatively small number should be accepted. [35] There is a claim for $16,500.00 which is said to be owing to the father for the Versatile 160 tractor. I have already found that the father owns the tractor. That being so, the respondent can hardly be heard to say he owes money for it. One doesn’t owe money for something one doesn’t own or have an entitlement to. I therefore reject this suggested debt. [36] Next there is a claim in respect to monies allegedly owing to the father in respect to the Case 970, the 1155 tractor and the I.H. truck. The first was incurred on October 25, 1994, and the latter two on April 27, 1996. Both are statute barred and I therefore decline to take them into account. It is the same as to payment made by the father on August 22, 1995, in respect to fuel bill. Finally, there is a debt of $1,200.00 supposedly owed to the father in respect to the Morris rod weeder. I am not convinced this is actually owing and therefore reject it. [37] Over a period of time the respondent paid out monies on account of fertilizer, chemicals, fuel, repairs, parts and insurance. See Exhibits D-21 and D-23. These were on-going expenses and related to the on-going operation of the farm. The petitioner has received no benefit from these expenses. For example, she received no income from the farm since the separation. Accordingly, she should bear no responsibility for the payments made and I decline to take them into consideration. [38] The debts submitted by the respondent which believe should be taken into account are these. (1) Balance for Duetz tractor 500.00 (2) Balance for New Idea disc bine 1,200.00 (3) Land rental for 2000 (Dobko, Farkes) 2,132.00 (4) Loan for residence improvements 3,696.99 (5) Loan to purchase cattle 4,676.00 (6) Paid to deliver bull 50.00 Total 12,254.99 There are additional debts as follows which the petitioner has been looking after. (1) Zellers 1,149.04 (2) CIBC loan 6,500.00 (3) Credit Union loan 4,989.30 Total 12,638.34 The petitioner also claims a debt of $1,000.00 for money she borrowed from a friend to make a payment on account of legal fees. I do not consider this to be a matrimonial debt. [39] The property available for distribution is the following. (1) Family home 43,000.00 (2) Farm machinery 30,857.31 (3) Automobile and boat 2,400.00 (4) Livestock 25,261.00 (5) Other property 13,456.77 Total 114,975.08 As for the debts, the petitioner’s debts exceed those of the respondent by $377.35. To equalize them, the petitioner should be paid $188.68. [40] Each party’s share of the family property is valued at $57,487.54. When add on the petitioner’s debt adjustment, she is entitled to $57,676.22. To date she has received the following. (1) Household furniture 500.00 (2) Automobile and boat 1,400.00 (3) Bank accounts 29.47 (4) RRSP 1,520.93 (5) Cash payment 2,500.00 Total 5,950.40 To achieve equalization the respondent must pay $51,725.82 with each party paying the debts as above attributed to them. CONCLUSION [41] In the result, the petitioner will have judgment against the respondent in the sum of $51,725.82 together with taxable costs of the action. The respondent shall have three months in which to pay the amount of the judgment and, in the event payment is not made, the petitioner may apply to this court for directions as to sale of the family property including the family home. The petitioner is entitled to forthwith register this judgment as charge against the family home.

The wife sought distribution of family property in accordance with the Family Property Act. HELD: The petitioner was given judgment for $51,725.82 with taxable costs of the action payable within 3 months, failing which, the petitioner may apply for directions as to sale of the family property. The family property was divided equally from the date the action was commenced. The legislation does not permit an exemption in the circumstances for the $12,000 from the sale of the respondent's trailer used to purchase the acreage. It was concluded the respondent's father owned the tractor. Two other tractors were exempt and a partial exemption was allowed for a snowmobile and some tools. While he owned a truck prior to the marriage, it could not be traced to the current truck. The petitioner's automobile and boat were added to the distribution value of the machinery. There were no records of the value of the pigs. Whatever the number brought into the marriage, it had been reduced by the sale of the animals. The value of livestock to be distributed was $25,261. The RRSP purchase prior to the marriage was exempt. The claim for the debt for the tractor owned by the father and alleged debt for a rod weeder were rejected. Debts owed to the father for a tractor and a truck were statute-barred. The petitioner should bear no responsibility for monies paid for fertilizer, chemicals, fuel, repairs, parts and insurance as they were on-going expenses for the operation of the farm. The petitioner's claim for $1,000, borrowed from a friend to pay legal fees, was not considered a matrimonial debt.

c_2002skqb155.txt

Hall, J. THE PROVINCIAL COURT FOR SASKATCHEWAN NORTH BATTLEFORD IN THE MATTER OF THE SMALL CLAIMS ACT, 1997 Citation No: 2003 SKPC 44 S. C.: N.B.141-02 BETWEEN: RALPH FINCH AND RAYMOND RUSSELL, RONALD RUSSELL and ROD RUSSELL, operating as TRIPLE AUTO REPAIR DEFENDANTS The Plaintiff, for himself Lionel Russell, for the Defendants JUDGMENT KAISER P.C.J. February 28, 2003 [1] This issues in this case largely involve Part III of The Consumer Protection Act, S.S. c.-30.1, and inter alia, the question of whether or not a consignee is a “retail seller” as defined in that Part. [2] The Defendants are the members of partnership that operates an auto repair business in North Battleford. During portion of 2002, Mr. Lionel Russell, who is not partner in Triple Auto Repair (hereinafter referred to as “Triple R”), was engaged in the business of consignment auto sales upon the business premises of Triple R, with Triple R’s knowledge and consent. The sole financial benefit for this activity was to go to Lionel Russell. The only benefit that Triple received was the opportunity to perform repair work for reward upon the consigned vehicles. There was no sign or other indication that Lionel Russell was operating business that was independent of the Defendant’s business upon the location. he consignment agreement used in the present case showed the dealer to be “Triple Auto Repair Sales and Consignment”. It is noted that in the ordinary course of events, purchaser would not see the consignment agreement. consumer doing business in this situation would certainly expect that Mr. Lionel Russell was representative of Triple and that he was dealing with Triple R. In my view, in the circumstances, the actions of Mr. Lionel Russell must be considered the actions of Triple R. [3] On April 16, 2002 Mr. Dan Oborowsky brought 1991 Ford Tempo to Mr. Russell at the Triple premises and entered into written agreement (C-1) entitled “Automobile Consignment Agreement between Triple Auto Repair Sales and Consignment and Dan Oborowsky.” This agreement provided that Triple will try to sell the vehicle upon Mr. Oborowsky’s behalf. The remuneration to Triple is not set out on the document, but am satisfied that it was to be 10% of the selling price. Mr. Russell described this as “lot fee.” Regardless of the label applied, it is compensation for finding buyer and showing the vehicle. This is the essence of consignment relationship. [4] On or about May 23, 2002, the Plaintiff went to Triple looking for car for his adult daughter to drive. He had previously purchased truck at this business. He made known to Mr. Lionel Russell the purpose of the proposed transaction. They looked at the Ford Tempo. Mr. Russell passed on to Mr. Finch the information that had been provided to him by Mr. Oborowsky and generally represented that it seemed to be in decent condition. At that point the odometer indicated that the vehicle had traveled 212,584 kilometres. am satisfied that Mr. Russell told Mr. Finch that the vehicle was consigned vehicle. They settled on price of $1,600. The sales agreement indicates that the vehicle was “Sold as is”. [5] The next day, Mr. Finch or his daughter, Ms. Cindy Lamoureux brought the car back to Triple because of minor problem with seat belt, because of vibration or pulsation that seemed to be coming from the brakes, and because the “check engine soon” light had come on. It was determined that certain of the sensors had to be replaced, that the brake rotors had to be turned and that there was something stuck in the seat belt receptacle. These items were repaired. The cost of the sensor replacement, being $146.30, was born by Mr. Finch. he other costs were absorbed by Triple or Mr. Oborowsky. Mr Finch was unhappy about having to pay for the replacement of the sensors. Mr. Russell indicated that he could return the car and have his money back if he wished. Mr. Finch declined to take up this offer. [6] However, Ms. Lamoureux continued to have problems with the car and in particular, with constant vibration that was present. She endeavoured to get the vehicle into Triple to have them look at it. Her evidence was that on number of occasions she made arrangements with the Defendants that the Defendants would pick the car up from her place of employment. They were to look at the car while she was at work. The Defendants never picked up the car. Finally, in early August, she had person that she described as “back yard” mechanic look at it. He advised her that there were serious problems with the car. In particular, there were problems with the lower ball joints, the exhaust system, and especially the motor mounts. There were also problems with the steering system. list, marked as D-2, was prepared outlining these problems. [7] On August 12, 2002, Mr. Finch took this list to Triple and gave it to Lionel Russell. Mr. Russell’s response was to the effect that the problem was Mr. Oborowsky’s and that he would see if Mr. Oborowsky would do anything about it. Mr. Finch was not satisfied with this response and decided to contact the Department of Consumer Affairs of the Province of Saskatchewan. As result of the information received from them, he felt that the problem was indeed Triple R’s problem and that he was entitled to look to Triple R, rather than Mr. Oborowsky. Later on August 12th, Mr. Finch telephoned Mr. Russell and told him this. Mr. Russell disagreed and effective discussion came to an end. [8] On August 15th, Mr. Finch took the vehicle into Auto Centre in North Battleford. This business is an accredited SGI vehicle inspection centre. There the vehicle was inspected by Mr. Derry Dillabough who is an accredited technician. Mr. Dillabough, who testified at trial, found that there were very serious problems with the vehicle. Most notably, the engine and transmission mounts were in very bad condition. The rear mount that supports the back of the engine and the transmission had entirely detached from the vehicle frame. chain had been installed to hold up the engine and transmission. This defect meant that the vehicle had to be taken out of service because it was unsafe. Mr. Dillabough was uncertain as to whether this defect could be repaired at all. There were other problems of significance. The ball joints were defective and needed to be replaced. The rack and pinion steering system was also defective and needed to be replaced. Mr. Dillabough advised that the vehicle could only be driven very slowly and carefully and for only short distance for storage purposes. Mr. Finch carefully drove it to his farm. He obtained certificate from Auto Centre. Mr. Finch incurred cost of $96.05 for this inspection. Mr. Finch delivered copy of the certificate to Mr. Russell. Triple R’s position remained that it was Mr. Oborowsky’s problem, and not that of Triple R. [9] Mr. Finch applied for Small Claims Summons on August 27th. The Summons was issued on September 13th. The first appearance was October 24th. The file does not disclose the date of service, but obviously it was between August 27th and October 24th. At the first appearance, arrangements were made for Triple to inspect the vehicle. Mr. Rodney Russell, one of the partners in Triple R, inspected the vehicle in their shop. He confirmed Mr. Dillabough’s findings. In his evidence Mr. Rodney Russell expressed the opinion that $700 would make the vehicle roadworthy again. The vehicle remains on the premises of Triple R. The Plaintiff is not interested in having the vehicle repaired, even if it is possible, in that he has obtained different vehicle for his daughter. He seeks recovery of the purchase price and the costs that he has incurred for repair and inspection. [10] In the period between purchase on May 23, 2002, and notification on August 12th (a period of 82 days) the vehicle was driven slightly less than 5,000 kilometres. ISSUES AND ANALYSIS [11] The law of Contract clearly recognizes that there is contract (the consignment contract) between the consignor (Mr. Oborowsky) and the consignee (Triple R). There is also contract (the sales contract) between Mr. Oborowsky (the vendor) and Mr. Finch (the purchaser). There is no contract between Triple and Mr. Finch. [12] However, The Consumer Protection Act, (the Act modifies and moderates the law of Contract. In particular, it provides that retail seller is deemed to give certain warranties to consumer who purchases the retail product. [13] Is consignee “retail seller” within the meaning of The Consumer Protection Act? [14] Section 39 of the Act defines “retail seller” as follows: (l) “retail seller” means person who sells consumer products to consumers in the ordinary course of his or her business but, subject to subsection 50(1), does not include trustee in bankruptcy, receiver, liquidator, sheriff, auctioneer or person acting under an order of court; It is clear that Mr. Lionel Russell was engaging in the business of selling automobiles, which are, of course, consumer products to consumers, and that this was his ordinary business. As previously stated, find that this business is legally attributable to Triple R. [15] In my view consideration must be given to the exception provision at the end of the definition of “retail seller”. The kind of people included in the exception are people who either clearly do not own the goods in question or who have limited form of ownership. For example, an auctioneer does not own the goods he or she is selling. Nonetheless, the auctioneer is empowered to sell the goods and does so. Similarly, the consignee does not own the goods, but has the power to sell them. The auctioneer is included in the list of excepted persons, but the consignee is not. If it had been the intention of the Legislature in passing this legislation to exclude consignee, consignees would have been enumerated along with the other excluded categories of persons. [16] There is principle of construction, applicable to statutes, agreements and wills, known in Latin as Expressio Unius Est Exclusio Alterius. It means that when certain persons or things are specified in law an intention to exclude all others from its operation may be inferred. It is my view that it is applicable in the present situation. If the Legislature had intended that consignees were not to be considered retail sellers, it would have listed them in the excluded group. [17] find support for the notion that persons may be considered retail sellers even though they have no contractual relationship to the purchaser in section 55 of the Act, which provides: In any action brought pursuant to this Part against manufacturer, retail seller or warrantor for breach of statutory, express or additional written warranty, lack of privity of contract between the person bringing the action and the retail seller, manufacturer or warrantor is not defence, and the retail seller, manufacturer or warrantor is conclusively presumed to have received consideration. [18] I conclude that a consignee is a retail seller within the meaning of the Act and accordingly that Triple R is deemed to have given to Mr. Finch the warranties set out in the Act. [19] Is the consignee retail seller in breach of any of the warranties provided in the Act? [20] Section 48 of the Act provides that the retail seller is deemed to have given ceratin warranties to the consumer. Most of the deemed warranties are not relevant to the present matter. The portions of section 48 that are relevant are as follows: 48 Where consumer product is sold by retail seller, the following warranties are deemed to be given by the retail seller to the consumer: (d) that the product supplied under the contract is of acceptable quality, except that this warranty is deemed not to be given: (i) respecting defects specifically drawn to the consumer’s attention before the contract is made; or (ii) where the consumer examines the product before the contract is made, respecting defects that examination ought to have revealed; (e) where the consumer expressly or by implication makes known to the retail seller any particular purpose for which the product is being bought, that the product supplied under the contract is reasonably fit for that purpose, whether or not that is purpose for which the product is commonly supplied, except that this warranty is deemed not to be given where the circumstances show that: (i) the consumer does not rely on the retail seller’s skill or judgment; or (ii) it is unreasonable for the consumer to rely on the retail seller’s skill or judgment; (g) that the product and all its components are to be durable for reasonable period, having regard to all the relevant circumstances of the sale, including: (i) the description and nature of the product; (ii) the purchase price; (iii) the express warranties of the retail seller or manufacturer; and (iv) the necessary maintenance the product normally requires and the manner in which it has been used; [21] am satisfied that the engine and transmission mounts of this vehicle were in the same condition on the date of sale as there were in on August 15th, being the date upon which Mr. Dillabough inspected the vehicle. am further satisfied that this problem made this vehicle unsafe to drive, and that accordingly, on the date of the sale, it was unsafe. It is probable that the problems with certain of the other components were there at the time of sale though they further deteriorated with use due to the engine and transmission mount problem. [22] As to warranty (d), Section 39 defines “acceptable quality” as follows: (a) “acceptable quality” means the characteristics and the quality of consumer product that consumers can reasonably expect the product to have, having regard to all the relevant circumstances of the sale of the product, including: (i) the description of the product; (ii) its purchase price; and (iii) the express warranties of the retail seller or manufacturer of the product; and includes merchantable quality within the meaning of The Sale of Goods Act; While the Plaintiff did not pay large sum of money for this vehicle, he could still reasonably expect this vehicle to be safe to drive, as it left the Defendant’s property. It was not safe to drive and accordingly was not of acceptable quality. In my view, the retail seller bears the burden of establishing the exceptions enumerated in the statutory warranty and has failed to do so. [23] As to warranty (e), the purchaser did make known the purpose for which this vehicle was required. That purpose was to provide transportation for his daughter and her children. Again, the vehicle was unsafe from the outset and accordingly cannot be considered suitable for this purpose. Again the retail seller has not established the exceptions. [24] Warranty (g) requires that the product and its components be durable for reasonable period of time. In the case of older used cars sold at low price, the reasonable period is very short. Given my findings as to warranties (d) and (e), it is unnecessary to make finding with respect to warranty (g) and decline to do so. [25] Is the breach of substantial character? [26] breach of substantial character leads to wider array of possible remedies than does regular breach. Section 39 provides as follows: (c) “breach of substantial character” means: (i) that consumer product, or the level of performance of the retail seller or manufacturer of consumer product, departs substantially from what consumers can reasonably expect, having regard to all the relevant circumstances of the sale of the product, including: (A) the description of the product; (B) its purchase price; (C) the statutory warranties and express warranties of the retail seller or the manufacturer of the product; or (ii) that consumer product is totally or substantially unfit for all the usual purposes of such product or for any particular purpose for which, to the knowledge of the retail seller, the product is being bought; I am satisfied that this automobile was substantially unfit for all the usual purposes for which, to the knowledge of the retail seller, it was being bought, and accordingly that the breach was of a substantial character. [27] What remedies are available to the purchaser? [28] Section 57 of the Act provides: 57(1) Where there is breach by manufacturer or retail seller of statutory warranty mentioned in section 48 or of an express warranty mentioned in section 45: (a) and where the breach is remediable and not of substantial character: (i) the party in breach shall, within reasonable period, make good the breach free of charge to the consumer but, where the breach has not been remedied within reasonable period, the consumer shall be entitled to have the breach remedied elsewhere and to recover from the party in breach all reasonable costs incurred in having the breach remedied; and (ii) the consumer is entitled to recover damages for losses that he or she has suffered and that were reasonably foreseeable as liable to result from the breach regardless of whether the breach is remedied; (b) and where the breach is of substantial character or is not remediable, the consumer, at his or her option, may exercise the remedies pursuant to clause (a) or, subject to subsections (2) and (3), the consumer may: (i) reject the consumer product; and (ii) if he or she exercises his or her right to reject, he or she is entitled to recover the purchase price from the party in breach and to recover damages for any other losses that he or she has suffered and that were reasonably foreseeable as liable to result from the breach. (2) The consumer shall exercise his or her right to reject the consumer product pursuant to clause (1)(b) within reasonable period pursuant to subsection (3), except where the consumer delays the exercise of his or her right to reject because he or she has relied on assurances made by the party in breach or the party’s agent that the breach would be remedied and the breach was not remedied. (3) For the purposes of subsection (2), regardless of whether the right to reject is being exercised by the consumer or person mentioned in subsection 41(1), reasonable period: (a) runs from the time of delivery of the product to the consumer; and (b) consists of period sufficient to permit any testing, trial or examination of the consumer product that may be normally required by consumers of that product and as may be appropriate considering the nature of the product, for the purpose of determining the conformity of the product to the obligations imposed pursuant to this Part on the party in breach. 1996, c. C-30.1, s.57. [29] The remedies that the Plaintiff seeks are those set out in subparagraph 57(1)(b). In order to obtain these remedies, the consumer must reject the consumer product and do so within reasonable period. At no time did the Plaintiff expressly state to the Defendants that he rejected the car. However, it was clear that he was very unhappy with it. Communication broke down over the issue of whether Triple had any responsibility in the situation. He did commence the action claiming the purchase price as quickly as was reasonably possible after learning of the significance of the mechanical problems and there does not seem to have been any unnecessary delay in service of the claim upon the Defendants. The car was not used after the Plaintiff learned of its very serious problems. am treating the commencement of the present action as the rejection of the product. [30] Did the Plaintiff reject the product within reasonable period? This issue is to be determined pursuant to subsections (2) and (3) of section 57. Subsection (2) contains an exception that seems to address the situation of delay in rejection arising from undertakings to repair defect followed by failure to do so. This vehicle had vibration problem from the outset. In my view this problem arose by reason because of drive train alignment problems associated with the missing engine mount. The Defendants endeavoured to repair the vibration problem by turning the brake rotors when the vehicle was returned to them on May 24th. This did not solve it. The Plaintiff, through his daughter sought to have the problem resolved by having the Defendant pick up the vehicle and work on it. find that the Defendant did agree to this arrangement but failed to pick up the vehicle. my view the bulk of the delay was occasioned by the Defendants Further, find that the Plaintiff relied on the Defendants agreement to look at the vehicle, with the implication that this would involve repair, and hence did not take other steps to have the problem dealt with. Once the Plaintiff became aware of the seriousness of the problems, particularly with the engine mount, he proceeded with dispatch. I find that in the circumstances, the Plaintiff did reject the goods within a reasonable period. [31] Pursuant to subparagraph 57(1)(b)(ii) the Plaintiff is entitled to recover the purchase price of $1600 plus foreseeable damages. The costs incurred for repairs and inspection, being $146.30 and $96.05, respectively, and totalling $242.35 were foreseeable and are properly recoverable. Therefore the Plaintiff’s total recovery would ordinarily be $1842.35. [32] However, the vehicle was driven almost 5,000 kilometres before the seriousness of the problem was discovered. Subsection 60(c) contemplates compensation to the vendor for same. It provides: 60 Where consumer rejects consumer product pursuant to clause 57(1)(b): (c) the party in breach is entitled to recover from the consumer, or set off against the refund of the purchase price of the product, an amount that is equitable for the use of the product, provided that in determining the amount no regard is to be taken of the depreciation of the product unless it is otherwise provided for by the regulations; In my view an equitable amount is $.06 per kilometre, amounting to $300. Accordingly, the Plaintiff’s judgment is reduced by this sum, such that the final figure is $1542.35. [33] Upon payment of this sum, the Plaintiff will execute such bill of sale in respect of this vehicle in favour of the Defendant. [34] The Plaintiff will have his costs of this matter which set at $20. SUMMARY [35] The Plaintiff will have judgment against the Defendant in the sum of $1542.35 plus costs of $20 for a total of $1563.35. Once the judgment has been paid in full, the Plaintiff will execute bill of sale in respect of the subject vehicle in favour of the Defendant. [36] Dated this 28th day of February, 2003. David J. Kaiser, P.C.J.

The plaintiff sought to recover the purchase price and repair and inspection costs of a used vehicle pursuant to the Consumer Protection Act s.57(1)(b). Mr. Russell sold the vehicle under consignment to the plaintiff for $1,600. The sales agreement indicated the vehicle was sold 'as is'. The purchaser returned the vehicle the next day because of a problem with the seat belt, a vibration or pulsation from the brakes and the 'check engine soon light' had come on. The plaintiff paid for the sensor replacement. Triple R absorbed the other costs of repair. The plaintiff's daughter continued to have problems with the car including with lower ball joints, exhaust system and motor mounts. At issue was whether or not a consignee is a 'retail seller' as defined in the Consumer Protection Act. HELD: The plaintiff was entitled to recover the $1,600 purchase price plus foreseeable damages which included costs of repairs and inspection totalling $242.35 and costs of $20 less a reduction of $1,542.35 for the 5,000 km it was driven. 1)A consignee is a retail seller within the meaning of the CPA and accordingly Triple R was deemed to have given the warranties set out in the CPA. If the legislature had intended that consignees were not to be considered retail sellers, it would have listed them in the excluded group. Persons may be considered retail sellers even though they have no contractual relationship to the purchaser in s.55. 2)While the plaintiff did not pay a large sum of money, he could still expect this vehicle to be safe to drive. It was not safe and accordingly was not of acceptable quality. The retail seller bears the burden of establishing the exceptions enumerated in the statutory warranty and failed to do so. The vehicle was unsafe from the outset and could not be considered suitable for the purpose of providing transportation. It was unnecessary to make a finding with respect to warranty s. 48(g) (durable for a reasonable period of time). 3)This auto was substantially unfit for all the usual purposes for which, to the knowledge of the retail seller, it was being bought and accordingly the breach was of a substantial character. 4)The plaintiff rejected the goods within a reasonable period. The commencement of the present action was treated as the rejection of the product. The bulk of delay was caused by the defendant's failure to pick up and look at the vehicle (and implication this would involve repair) as agreed.

2_2003skpc44.txt

nan IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 043 Date: March 8, 2012 Information: 36652002 Location: Saskatoon Between: Her Majesty the Queen and Ryan Neil Palmer Appearing: Bryce Pashovitz For the Crown Jonathon Abrametz For the Accused DECISION ON VOIR DIRE M.L. GRAY, BACKGROUND [1] On July 14, 2010, Mr. Palmer was charged with operating a motor vehicle while his ability to do so was impaired by alcohol or a drug contrary to ss. 255(1) and 253(1)(a) of the Criminal Code, and also with operating a motor vehicle after consuming alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood contrary to ss. 255(1) and 253(1)(b) of the Criminal Code. [2] The proceedings commenced with two Crown witnesses called on the trial proper. As counsel for the accused provided notice of his intention to raise certain Charter issues, the evidence of third Crown witness Constable Walz was called on voir dire. His testimony is the only evidence left for the Court to consider in determining the Charter application. The accused asserts that he was arbitrarily detained as the officer did not have reasonable grounds to make a demand for a sample of his breath for analysis. [3] Thus, the only issues to resolve are: (i) Did the investigating officer have reasonable grounds to make the Intoxilyzer demand pursuant to s. 254(3) of the Criminal Code? (ii) If Charter breach is made out, is the appropriate remedy the exclusion of the Certificate of Analyses? EVIDENCE Constable Matthew Walz [4] Constable Walz has been member of the Saskatoon Police Service since December 2004. On July 14, 2010 he was in uniform, in marked police vehicle and on patrol with Constable Bradley. Shortly after midnight, he was dispatched to investigate complaint of suspected impaired driver who was weaving on the roadway and up onto sidewalk. licence number for the offending vehicle was reported and Constable Walz went in search of it. At approximately 12:10 a.m. he saw vehicle with that licence plate weaving in the right lane in fashion that brought it very close to parked cars. He watched the vehicle as it continued to weave from the right to the left lane. The vehicle suddenly braked and made right turn from the left lane whereupon the officer activated the emergency lights of the patrol car. The vehicle pulled over quickly but as the officer walked toward the driver, the vehicle lurched forward then stopped very abruptly. [5] The accused was the operator and only occupant of the vehicle. Constable Walz made the following observations of the accused: glossy eyes, slurred speech in that words were blended together in seeming lisp. The accused demonstrated poor muscular control, particularly in keeping his head still. He also had difficulty grasping his licence and when he reached to place it in the officer’s outstretched palm he missed by three or four inches, dropping the identification beneath the officer’s hand and onto the ground. Constable Walz asked the accused to step out of his vehicle and noted that his balance was poor, that he stumbled and that when he walked his upper body leaned forward. He watched the accused walk to the front of the patrol car and at that point felt that he had reasonable grounds to arrest the accused for impaired driving. When the accused was placed in handcuffs he stumbled and fell forward. [6] At 12:20 a.m. the accused was read his rights to counsel and when asked whether he wished to call lawyer replied “yeah, when we get there to the police station.” This was followed by the standard police warning which he said he understood. When read the demand for breath samples and asked whether he understood, the accused indicated that he would not be saying anything and directed that he be taken to the police station. The officers promptly transported the accused to detention arriving at 12:33 a.m. Once the accused was booked, he was taken to phone room. Because the officer had not received clear indication from the accused that he understood the demand the first time it was made, the officer read the demand again at 12:41 a.m. At 12:43 a.m. Mr. Palmer asked to speak to Legal Aid; duty counsel was reached about one minute later. The accused spoke to duty counsel for approximately three minutes. At the completion of that call the accused wanted to speak to private lawyer, but received only message manager. The accused did not wish to leave message but rather called Legal Aid again. At 12:50 he spoke to duty counsel and afterward decided that he would like to leave message for his private counsel. He was permitted to do so and when asked if he was satisfied with this he said that he was and that he did not want to make any more calls. At 1:03 a.m. the lawyer responded to the message by calling the police station; the accused spoke to that lawyer until 1:06 a.m. [7] Shortly thereafter the technician arrived and spoke to the accused who confirmed that he was satisfied with his legal consultation. [8] The accused provided two breath samples whereupon he was arrested for driving while over .08 and again provided his rights to counsel. He asked to call the lawyer to whom he had spoken earlier but received only message manager. The officer provided the Prosper warning to which the accused advised that he might wish to speak to another lawyer later. The detention staff were instructed to allow him to do so. [9] Constable Walz also attempted to find sober person to collect Mr. Palmer and keep him safe but Mr. Palmer could or would not name anyone. As result, instructions were given to hold Mr. Palmer until he was sober or until competent person could take him into their care. [10] The accused was identified with photo driver’s licence which the officer photocopied. The officer was also able to make an in court identification. DEFENCE POSITION [11] Counsel for the accused argues that although the officer made observations indicative of impaired driving, there is no objective evidence to suggest that the impairment of the ability to drive was the result of the ingestion of alcohol or drug. Consequently, the grounds upon which the demand was based cannot be said to be objectively reasonable, the detention was arbitrary, the breath samples unlawfully seized and therefore, the evidence thus obtained should be excluded pursuant to s. 24(2) of the Charter. CROWN POSITION [12] The Crown takes the position that even though the officer did not note smell of alcohol, he did list number of indicia which person reasonably could conclude were the result of impairment by alcohol. Further, if there were insufficient grounds to make the demand, the Certificate of Analyses should not be excluded given the reasoning of R. v. Grant, 2009 SCC 32 (CanLII), 2009 S.C.C. 32. (i) Did the investigating officer have reasonable grounds to make the Intoxilyzer demand pursuant to s. 254(3) of the Criminal Code? [13] Although the onus lies upon an accused to establish Charter violation on balance of probabilities, demand for breath samples amounts to warrantless search which is prima facie unreasonable. As result, the Crown must establish that the search was authorized by law, the law was reasonable and the search was conducted in reasonable fashion. In this case, there is no dispute that s. 254(3) of the Criminal Code authorizes the search and is reasonable. No issue was taken with the authority of the officer to stop the vehicle driven by the accused. Rather, defence counsel argues that Constable Walz did not have reasonable grounds within the meaning of s. 254(3) to make demand for breath samples, nor did he have the grounds to make an arrest for impaired driving, thus the arrest was unlawful, the search unreasonable and the rights of the accused pursuant to ss. and of the Charter were violated. [14] It is well settled that there is subjective and objective component to finding that reasonable grounds existed within the meaning of s. 254(3) of the Criminal Code. As stated by the Supreme Court of Canada in R. v. Bernshaw (1995), 1995 CanLII 150 (SCC), 95 C.C.C. (3d) 193 at para. 51: The requirement in s. 254(3) that reasonable and probable grounds exist is not only statutory but constitutional requirement as precondition to lawful search and seizure under s. of the Canadian Charter of Rights and Freedoms. And further at para. 216: ...the existence of reasonable and probable grounds entails both an objective and subjective component. That is, s. 254(3) of the Code requires that the police officer subjectively have an honest belief that the suspect has committed the offence and, objectively, there must exist reasonable grounds for this belief: R. v. Callaghan, 1974 CanLII 962 (SK QB), [1974] W.W.R. 70 (Sask. Dist. Ct.); R. v. Belnavis, [1993] O.J. No. 637 (Gen. Div.) (QL)... R. v. Richard (1993), 1993 CanLII 8567 (ON SC), 43 M.V.R. (2d) 144... [15] The test is not an onerous one; there must exist more than the reasonable suspicion required by s. 254(2) for roadside demand but less than proof beyond reasonable doubt that the accused’s ability to operate motor vehicle was impaired to even slight degree by alcohol or drug. The officer need not establish prima facie case for conviction of impaired driving before proceeding to make demand: see R. v. Shepherd, 2009 SCC 35 (CanLII), [2009] S.C.J. No. 35 at para. 23. The issue is not whether the officer should have asked more questions or conducted more thorough investigation, but rather, whether the information which he had and the indicia which he observed can be said to provide an objectively reasonable basis for demand pursuant to s. 254(3) of the Criminal Code. [16] This test does require an assessment of the evidence to determine whether the belief was reasonable, both from the perspective of the officer making the demand and an objective observer. Such an assessment by necessity requires review of all the relevant information in the possession of the officer at the time the demand was made: see R. v. Vandal, 2009 SKQB 32 (CanLII) at para. 11. plethora of cases have been reported on the subject of what constitutes reasonable grounds but there is no formula or checklist to be derived from them. Rather, case by case analysis is required in every instance. Or, as stated by Mills J. in R. v. Gunn, 2010 SKQB 451 (CanLII), at p. 11: Although it is tempting to list indicia of possible impairment in particular case and to compare them with similar indicia from other cases to come up with formula for assessing an officer’s grounds, that is not the appropriate approach to take. [17] In R. v. Kopperud, 2011 SKQB 192 (CanLII), [2011] S.J. No. 303, Wilkinson J. made similar observation at para. 57: ... the absence of some indicia commonly found in impaired drivers does not necessarily undermine finding of reasonable and probable grounds based on the observed indicia and available information viewed in totality. [18] In the case before me, there is no dispute that the officer’s belief was honestly held and subjectively valid. The only question is whether, in the absence of any smell of or admission of consumption of beverage alcohol, his belief can be verified objectively. [19] The evidence establishes the following information to be within the knowledge of the arresting officer at the time of the demand: 1. there had been citizen’s complaint of suspected impaired driver who had driven up onto sidewalk; 2. detailed description of the offending vehicle, including the licence plate number, had been relayed; 3. his personal observations of the manner in which that vehicle was operated: (a) it was weaving on the roadway coming very close to cars parked on the street; (b) it braked abruptly; (c) it made right-hand turn from the left driving lane; (d) it stopped very quickly in response to the emergency lights on the patrol car being activated; and (e) it lurched forward as the officer approached on foot; 4. the personal observation of the following physical symptoms of the accused: (a) he had glossy eyes; (b) his speech was slurred; (c) he had poor muscle control as evidenced by bobbing head, overactive arms and difficulty grasping his licence; (d) he had poor eye hand coordination as demonstrated by dropping his licence beneath the officer’s outstretched palm, rather than into it; (e) he had poor balance as demonstrated by his body tilting forward as he walked; (f) he stumbled when he walked; and (g) he fell forward when his hands were cuffed. [20] Based on the totality of the above evidence, was it objectively reasonable for the officer to conclude that the accused was impaired by alcohol or drug even without any explicit evidence such as smell of alcohol or an admission of consumption? Impairment “by alcohol or drug” is critical to the offence of impaired driving, but there may be instances where the totality of the evidence does result in reasonable inference that the impairment was the result of alcohol or drug ingestion. An officer is entitled to draw inferences and conclusions based on experience: see R. v. Bush, 2010 ONCA 554 (CanLII), para. 61 and is not obliged to rule out every other possible cause because, as was pointed out in para. 66 of Bush, supra, “the important fact is not whether the officer’s belief was accurate. It is whether it was reasonable...”. [21] Clearly, Constable Walz could have asked the accused if he had consumed alcohol, but the weight attached to any response would have been up to the officer; he is not required to accept what he was told and terminate an investigation in the face of a denial or explanation from the accused: see Shepherd, supra, para. 23 and R. v. Wang 2010 ONCA 435 (CanLII), para. 68. [22] Although one might speculate that the symptoms and driving in the case at hand were caused by some medical condition, there is no evidence of any other possible reason which would explain the egregious driving and the physical condition of the accused. In the absence of any evidence suggesting an alternative explanation, the Court finds that it is reasonable to conclude, as the officer did, that the most obvious cause was impairment by alcohol. [23] It is the view of this Court that the driving irregularities and the physical symptoms of the accused in this case paint a virtual stereotypic portrait of a motorist impaired by alcohol. The absence of the smell of beverage alcohol or any admission of consumption of beverage alcohol does not vitiate the probative value of the other indicia considered in their totality. In the face of the manner of driving demonstrated by the accused and the very significant symptoms of impairment, it would be ludicrous to suggest that the officer reasonably could have only a mere suspicion that the accused had alcohol in his body. On the whole of the observations and information in the possession of the officer, I find that he did have reasonable grounds to effect an arrest for impaired driving and that the grounds to make the demand are objectively sustainable. Accordingly, there was no breach of s. 8 or s. 9 of the Charter and the Certificate of Analyses is therefore admissible ii) If Charter breach is made out, is the appropriate remedy the exclusion of the Certificate of Analyses? [24] However, in the event that have erred in my assessment of the evidence with respect to the grounds for arrest and for the breath demand, will consider whether the admission of the evidence in the face of breach so created would bring the administration of justice into disrepute. As set out in R. v. Grant, 2009 SCC 32 (CanLII), 2009 S.C.J. No. 32, such determination requires an inquiry along the following three lines: (i) the seriousness of the state conduct which infringed the Charter; (ii) the impact on the Charter-protected interests of the accused; and (iii) the interest of society in having the matter adjudicated on the merits. [25] With respect to the issue of the seriousness of the Charter-infringing state conduct, Grant supra at para. 74 defined the range of seriousness in the following way: At one end of the spectrum, admission of the evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through wilful or reckless disregard of Charter rights will inevitably have negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute. [26] Therefore, the more serious or deliberate the state conduct, the more likely the courts should be to disassociate from that conduct by weighing in favour of exclusion. In my view, any potential violation of the rights of this accused would fall toward the lower end of the spectrum. The officer subjectively believed that he had reasonable grounds to arrest the accused for impaired driving and to make demand for breath samples. If the grounds fell short objectively, it was by small margin. The accused displayed very significant symptoms of impairment and drove in fashion indicative of marked departure from the norm. This is not situation where there was nothing to substantiate the subjective belief held by the officer; what was lacking was smell of or admission of consumption of alcohol. smell or admission of consumption is not an absolute prerequisite to reasonable belief that the offence of impaired driving had been committed. There is nothing in the evidence to suggest that the officer wilfully or recklessly disregarded the rights of the accused. If the officer did violate the rights of this accused, he did so in good faith. In conclusion, the balance would weigh in favour of admission on this line of inquiry. [27] The second line of inquiry concerns the impact on the accused of any breach of Charter- protected interest. At para. 76 of Grant, supra, the Supreme Court of Canada gave this guidance: The impact of the Charter breach on the Charter-protected interests of the accused may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute. And later at para. 78: Similarly, an unreasonable search contrary to s. of the Charter may impact on the protected interests of privacy, and more broadly, human dignity. An unreasonable search that intrudes on an area in which the individual reasonably enjoys high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not. Providing breath sample is relatively unobtrusive procedure which does not demean dignity or invade privacy; thus an inquiry on this arm will generally militate in favour of admission of the results of the analyses of the sample. [28] With respect to the third line of inquiry, society’s interest in the adjudication of the case on its merits, the Supreme Court in Grant explained at para. 79: Society generally expects that criminal allegation will be adjudicated on its merits. Accordingly, the third line of inquiry relevant to the s. 24(2) analysis asks whether the truth seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry reflects society’s “collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to law...” Thus the Court suggested in Collins that judge on 24(2) application should consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence. [29] The reliability of the evidence and its importance to the prosecution are very relevant to the truth seeking function of the trial process and as was pointed out in Grant, supra, the results of breath sample analyses are generally considered reliable and their exclusion would end any prosecution for the offence of driving while over the legal limit: see Grant, supra, para. 99-110 incl. The Supreme Court concluded at para. 111: While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity is deliberately inflicted and the impact on the accused’s privacy, bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability. On the other hand, where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused’s body may be admitted. For example, this will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive. Accordingly, an assessment based on this criteria, would also favour the admission of the evidence. [30] In balancing the three lines of evaluation directed in Grant, would conclude that the admission of the certificate would not bring the administration of justice into disrepute. The breach was not the result of wilful or blatant disrespect of the Charter by the officer and was at the lower end of the spectrum of breaches. The impact on the accused was also at the lower end of the spectrum and the admission of the evidence would serve to enhance rather than detract from the public interest in the truth seeking function of the criminal trial process, particularly since the evidence in question is reliable and was obtained in non-invasive manner.

The accused was charged with impaired driving and driving over .08. He argued that the investigating officer did not have reasonable and probable grounds to make a breath demand pursuant to s. 254(3) of the Criminal Code resulting in the arbitrary detention of the accused. The accused argued the Certificate of Analysis should be excluded. The officer responded to complaint of possible impaired driver weaving on the roadway and onto the sidewalk. The officer located vehicle with the same licence plate number. He observed the vehicle weaving from right to left in its lane. The vehicle braked suddenly and made right turn from the left lane. The officer activated his emergency equipment. The vehicle pulled over quickly but lurched forward and stopped abruptly as the officer walked towards the vehicle. The accused had glossy eyes, slurred speech, poor muscular control, difficulty extracting his licence and displayed poor balance when walking to the police vehicle. The officer did not note smell of alcohol. HELD: In this case, there was no dispute that the officer's belief in reasonable and probable grounds was honestly held and subjectively valid. While the officer could have asked the accused if he had been drinking alcohol, the weight to be given to any response from the officer was subjective û he was not required to accept what he was told. Although it is possible to speculate that the symptoms of impairment in this case were caused by some medical condition, there is no evidence of any other possible explanation for the egregious driving and physical condition of the accused. In the absence of any evidence suggesting an alternative explanation, it is reasonable to conclude that the most obvious case was impairment by alcohol. The driving pattern and physical symptoms of the accused paint a stereotypical portrait of a motorist impaired by alcohol. The absence of a smell of alcohol or any admission of consumption does not vitiate the probative value of the other indicia when considered in their totality. In the face of the manner of driving and very significant symptoms of impairment, it would be ludicrous to suggest that the officer could only have had a reasonable suspicion that the accused had alcohol in his body. The Court found that the officer had reasonable and probable grounds. No charter breach was established. The certificate was not excluded.

e_2012skpc43.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 444 Date: 2007 11 29 Docket: Q.B. CNJ 43/07 Judicial Centre: Regina BETWEEN: HER MAJESTY THE QUEEN [J.L.P.] AND [T.T.A.] Counsel Bryce Pashovitz for the Crown Jeffrey W. Deagle for [J.L.P.] Robin Neufeld for [T.T.A.] SENTENCING CHICOINE, J. November 29, 2007 Note: This sentencing decision was read into the record of the trial on November 29, 2007. The transcript of the proceedings is the official record. INTRODUCTION [1] [J.L.P.] and [T.T.A.] have been found guilty after trial of committing two offences, namely: That on or about the 12th day of January, 2007 at or near Regina in the Province of Saskatchewan, they did steal cash and miscellaneous items, the property of Southland Corporation (Devonshire Seven Eleven), and at the time thereof did use violence against Larry Bryska, contrary to s. 344(b) of the Criminal Code; That on or about the 12th day of January, 2007 at or near Regina in the Province of Saskatchewan, they did with intent to commit an indictable offence, have their faces masked, contrary to s. 351(2) of the Criminal Code. [2] It is not my intention to review all of the findings of fact upon which the convictions were based as previously rendered decision on October 10, 2007. It would be useful, however, to summarize those findings in order to put the offences in their proper perspective for the purpose of determining the appropriate sentence for each. [3] The offence of robbery with violence relates to robbery which occurred at about 5:30 a.m. on January 12, 2007 at the Seven-Eleven convenience store at the intersection of Devonshire Drive and Rochdale Boulevard in the City of Regina. Four masked individuals in dark clothing entered the store. Three approached the loan store clerk behind the counter and the fourth, being Mr. [J.L.P.], stood guard at the door. Mr. [J.L.P.] was holding some sort of bar or pole variously described as or chair or table leg. least two of the individuals who approached the counter were carrying knives. The clerk was forced to the floor. At one point one of the robbers said, "Don't stab him. Just kick him in the head." Two of the individuals, one of whom was 13 years old, grabbed about 120 packs of cigarettes and put them in their backpack or jackets. The other individual, Mr. [T.T.A.], took the till tray with $150.00 to $180.00 in cash. Before leaving the store, one of these individuals kicked the clerk in the head twice. All four exited the store and got into car which headed east on Rochdale Boulevard. [4] At the time of the robbery, another employee was in back room of the store and was able to view the robbery in progress on video monitor. He called the police and advised them that the robbers had left in what he thought was Chrysler or Dodge automobile. [5] Cst. Craig Solomon of the Regina City Police heard of the robbery while on patrol in marked Ford Expedition near the intersection of McCarthy Boulevard and 9th Avenue North. He and his partner proceeded north on McCarthy. They noted Chrysler Intrepid that was proceeding east on Rochdale make right turn and thereafter proceed south on McCarthy. The officers made U-turn to follow this vehicle with emergency lights and siren activated. At speed of 100 kms per hour the police vehicle was just keeping pace with the Chrysler. The posted speed limit on that street is 50 kms per hour. The vehicles proceeded through green lights at the intersections of Dalgliesh Drive and Rink Avenue. The getaway vehicle went through red light at 9th Avenue North at which time the police officers discontinued the pursuit. Cst. Solomon noted the vehicle to make left turn on red light at 7th Avenue North. [6] Identification of Mr. [J.L.P.] and Mr. [T.T.A.] as participants in this robbery was accomplished through oral testimony of two witnesses subpoenaed to testify at the trial Mr. [J.L.P.]'s brother-in-law and the 13-year-old accomplice. THE ACCUSED [7] Mr. [J.L.P.] is now 19 years of age and has resided in Regina since age 10 following his parents' separation. He has good relationship with his mother. Unfortunately, his father was victim of murder in 1999 when his son would have been 11 years old. Mr. [J.L.P.] suffers from some unresolved issues as result of his father's tragic death, evidenced by the fact that he was convicted of his first criminal offence at age 12. [8] Mr. [J.L.P.] is few credits shy of getting his Grade 12 diploma. He had planned to attend an adult education program at the time of his arrest. He has worked as an electrician's helper for his mother's boyfriend and he has an interest in carpentry. He admits to substance abuse, including alcohol, marijuana and cocaine. [9] Mr. [T.T.A.] is also 19 years of age. He grew up on the Pasqua First Nation. He does not get along with his parents. He lived with his grandparents most of the time. Unfortunately, his grandfather died two years ago. [10] Mr. [T.T.A.] has not completed his grade 10. He started using alcohol and drugs at age 13, and continues to use marijuana and cocaine. He plans to continue his education, get married and lead normal life. MR. [J.L.P.]’S CRIMINAL RECORD [11] Mr. [J.L.P.] has fairly significant criminal record which includes convictions for offences against the person, against property and against the administration of law and justice. His first conviction as young offender was for break, enter and theft at age 12 and was twice convicted for the same offence at age 13. He received open custody and probation. His first serious violent offence was an assault with weapon at age 14 for stabbing the victim in the neck with knife. He was sentenced to 10 months secure custody. At age 15, he was convicted of robbery which involved theft of gold earring from 14-year-old victim. He received sentence of 12 months in secure custody and six months supervision in the community. At the same time, he was convicted of possession of stolen vehicle and for flight from police for which he received concurrent sentence. month later, he was convicted of possession of stolen vehicle and escaping lawful custody for which he was sentenced to 280 days in closed custody and 140 days supervision in the community, concurrent. [12] In 2004 at age 16, Mr. [J.L.P.] was convicted of escaping lawful custody, two charges of taking vehicle without the owner's consent, one charge of theft of vehicle and charge of possession of break-in instruments. He was sentenced to total of 16 months closed custody and six months supervision in the community. In 2005 at age 17, he was convicted of possession of property under $5000.00 and being unlawfully at large for which he was sentenced to 100 days of closed custody on each charge and 50 days supervision in the community. At the same time, he was convicted of uttering threats and received concurrent sentence. [13] Mr. [J.L.P.]'s record as an adult consists of conviction in September of 2006 for driving while impaired and another conviction for possession of stolen vehicle for which he received custodial sentences of two months on each charge, concurrent. MR. [T.T.A.]’S CRIMINALRECORD [14] Mr. [T.T.A.] also has significant criminal record consisting of 35 convictions, all as youth. [15] His first conviction was in 2001 at age 13 on two charges of robbery, one charge of theft under $5000.00, one charge of possession of property obtained by crime, and two charges against the administration of justice for failing to attend court and failing to comply with recognizance. He received four months open custody and one year of probation. Two months later he was convicted of being unlawfully at large and sentenced to time served. Two months after that, he was convicted of one charge of escaping lawful custody, three charges of possession of property obtained by crime under $5000.00, three charges of taking motor vehicle without the owner's consent, and one charge of theft under $5000.00. He was sentenced to three months in secure custody and nine months of probation on each charge to be served concurrently. [16] In 2002 at age 14, Mr. [T.T.A.] was convicted of attempt to break and enter and was sentenced to time served, being 26 days. few months later, he was convicted of three charges of possession of property obtained by crime over $5000.00 and charge of flight from police officer. He was sentenced to 46 days time served plus an additional four months of secure custody. [17] In 2003, before his 14th birthday, he was convicted of theft under $5000.00, failing to comply with court order and mischief. He was sentenced to five months of secure custody. After his 14th birthday, he was convicted of possession of stolen goods over $5000.00 and taking motor vehicle without the owner's consent. He received sentence of 320 days and 160 days of supervision in the community. [18] In 2004, at age 15, Mr. [T.T.A.] was convicted of dangerous operation of motor vehicle, carrying concealed weapon and possession of property obtained by crime over $5000.00. He was sentenced to 12 months closed custody and months of supervision in the community. [19] In 2005, at age 16, Mr. [T.T.A.] was convicted of possession of property obtained by crime over $5000.00, failing to stop at the scene of an accident, dangerous driving, and obstruction of peace officer. He received sentence of 260 days closed custody and 130 days supervision in the community. [20] Mr. [T.T.A.]'s last conviction as youth was in January of 2006 at age 17, for mischief under $5000.00 for which he was sentenced to 20 days of closed custody and 10 days of supervision in the community. PRINCIPLES OF SENTENCING [21] The purpose and principles of sentencing are outlined in s. 718 of the Criminal Code which states: 718 The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct (b) to deter the offender and other persons from committing offences (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders (e) to provide reparations for harm done to victims or to the community; and (f) to promote sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [22] The following sections of the Code are also relevant: 718.1 sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender 718.2 court that imposes sentence shall also take into consideration the following principles, namely: (a) sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender; (b) sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (d) and offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. APPLICATION OF SENTENCING PRINCIPLES [23] In applying these principles, consider the following factors to be aggravating: The robbery was committed against person in vulnerable position. Attendants of all-night convenience stores work evening and night-time shifts, often at little more than minimum wage. They are often required to work alone or with only one other co-worker. They are subjected to threats of violence and at times physical harm. They often suffer significant and lasting mental anguish from the traumatic experience. All courts have recognized the need to protect people in these positions. The accuseds' criminal records, which have already described in detail, are appalling. While most of the offences in respect to Mr. [J.L.P.] and all of the offences in respect of Mr. [T.T.A.] were committed when they were youth, the records show failure to respond to progressively longer and more restrictive sentences. The gratuitous assault upon the attendant in this case the kick in the head prior to leaving the store with the stolen cash and cigarettes brings the offence to yet another level. The fact that 13-year-old was conscripted to participate in this serious and violent crime. The fact that high speed vehicle chase ensued after the robbery on major thoroughfare in the City of Regina, with the getaway vehicle approaching speeds of 100 kms per hour and driving through red lights. Were it not for the Regina City Police policy of restraint in high speed pursuits, innocent bystanders could have been killed or injured. The fact that neither accused shows any remorse for his actions and for the harm which he has inflicted upon the victim or the owner of the business. These are all factors which militate against sentence in the lower range of sentences for offences of this nature. [24] The only factor that might be in any way considered mitigating is the lack of parental care and guidance which each of the accused have endured from an early age. [25] Section 718.2(b) of the Code directs that sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. The prosecutor and defence counsel have referred to number of cases in the course of their submissions which prescribe range of sentence for robberies with violence. [26] Among the cases referred to by the Crown was R. v. Ahenakew, [2001] S.J. No. 695, 2001 SKCA 117 (CanLII), 213 Sask. R. 292 wherein the Saskatchewan Court of Appeal determined that conditional sentence of two years less day for robbery with violence committed at bar was inadequate. Mister Justice Wakeling said the following at para. 7: The trial judge erred in imposing conditional sentence. This Court said as follows in R. v. Severight (1996), 1996 CanLII 4934 (SK CA), 137 Sask. R. 306: We have frequently pointed out that robbery with violence is the type of crime from which the public is to be protected. Accordingly any sentence imposed must leave no doubt that such conduct will not be tolerated. Armed robbery involves an inherent danger to human life because escalation of violence toward the victim or lawful resistance by the victim to an attack can easily result in death or serious bodily harm. The following statement of Wakeling J.A., speaking for this Court in R. v. Alexson, [1991] S.J. No. 268(Sask. C.A., June 1991), is apposite: This Court has repeatedly indicated that offences of this nature will be treated severely. This is the only means available to the courts to discourage crimes of this nature which involve victims who are particularly vulnerable to such an attack. The range of sentences is such that years is at the lower end of the scale for an offence of this nature. After giving credit for six months already served as conditional sentence and the community service already put in, the court decided that sentence of two-years-less-a-day of imprisonment would be imposed from the date of the appeal decision. [27] In this case, the Crown recommends that both accused receive sentence of more than two years in addition to the time already served. Both accused have been in custody since January 31, 2007, which is now almost 10 months. [28] Defence counsel has referred me to the case of R. v. Cheekinew 2007 SKCA (SentDig) 24, wherein 19-year-old appealed an 18 month jail sentence for robbery with violence committed on an individual at bus stop. The Saskatchewan Court of Appeal dismissed the appeal. His previous record included two robbery convictions and one theft related. The case is only reported in the sentencing digest so do not know what factors influenced the provincial court judge to sentence the offender to 18 months. It would be unusual for the Court of Appeal to increase sentence on an appeal by the accused and it does not appear that the Crown had cross-appealed. [29] Defence counsel also referred to R. v. Halkett [2002] SKCA (SentDig) 50, wherein 21-year-old received sentence of two-years-less-a-day from the Provincial Court Judge for robbery with violence which involved entering into home with an accomplice, assaulting the male victim and his wife, and leaving with money, jewellery and the victim's truck. This accuseds' previous record included robbery with violence, assault causing bodily harm, and property related offences. On Crown appeal, the Saskatchewan Court of Appeal increased the sentence to three years. [30] In addition to the cases referred to me by counsel, have read number of cases from this jurisdiction involving sentences for robbery with violence including R. v. Bowman, 1988 CanLII 5105 (SK CA), [1988] S.J. No. 471, 67 Sask. R. 314, wherein Mr. Justice Vancise decided that sentence of four years concurrent was not appropriate in that case where the accused had committed four previous armed robberies. He stated: [The sentence] fails to take into account the fact that this Court on number of occasions has stated that it will impose long sentences on people who victimize persons who are vulnerable, such as taxi drivers, shopkeepers and employees who work for 24-hour convenience stores. The trial judge, in our opinion, failed to adequately take into account the need for the protection of the public from individuals such as the accused. [31] In R. v. Warkentin, 1994 CanLII 3877 (SK CA), [1994] S.J. No. 591, 125 Sask. R. 236, Mister Justice Cameron set aside sentence of one year incarceration to be served concurrently for four armed robbery convictions and substituted four years concurrent in respect of each count. He stated (at para. 5): With respect, we are of the view the armed robbery sentences imposed under section 344 were unfit. They fit neither the offender nor the offences and must be increased, having regard for seriousness of the offenses and the need to protect the public, deter crime, and uphold society's confidence in the administration of justice, including effective enforcement of the Criminal Code. .... [32] have also considered R. v. Sangwais, [2002] S.J. No. 298, 2002 SKCA 63 (CanLII), 223 Sask. R. 222, in which the accused robbed variety store in small town, striking 50-year-old female clerk on the head with long piece of wood and tying her up. He had lengthy criminal record with 37 prior convictions including assault causing bodily harm, assault, weapons offences and many offences against the administration of justice. The trial judge gave him two-year-less-a-day conditional sentence, taking into account that he had spent 16 months on remand. The Saskatchewan Court of Appeal stated that the trial judge had failed to give consideration to the gravity of the offence and had ignored the objectives of denunciation and deterrence and public confidence in the administration of justice. The Court of Appeal increased the sentence to two-years-less-a-day for the date of the appeal. Considering the time on remand, this was equivalent to at least 56 months (more that 1/2 years). [33] In considering an appropriate sentence in the circumstances, must also take into consideration the effect of the violence committed against the victim, Mr. Bryska. While he did not provide victim impact statement, his demeanor in the stand clearly indicated the pain of having to once again relive the experience of being robbed at knife-point and being physically assaulted in the process. [34] Having considered the circumstances of the offences and the submissions of the Crown and counsel for each of the accused, will now proceed to consider what fit and proper sentence is in this case. [35] The law of Canada provides that person convicted of robbery is liable to imprisonment for life. For the offence of masking one's face with intent to commit an indictable offence, person can be sentenced to term not exceeding ten years. Parliament has dictated by these sentence ranges that the punishment for these crimes can be substantial. [36] Taking into consideration the sentencing principles that have referred to above, especially the need for deterrence and denunciation, have determined that sentences to be served in federal penitentiary are warranted in these circumstances. will particularize the sentences as regards to each offence and each offender in moment. [37] Having determined that the sentences will not be two years or less, it is not necessary for me to consider whether conditional sentence would be appropriate. In any event, am also of the opinion, even if the global sentence had been less than two years, that conditional sentences would be inconsistent with the fundamental purpose and principles set out in s. 718 and 718.2 for these offences and these offenders. THE SENTENCE [38] Having considered the aggravating and mitigating factors referred to earlier, the circumstances surrounding the commission of these offences, the harm perpetrated upon the victim, and taking into consideration the previous records of both of these accused, I have come to the conclusion that the best interests of society and the administration of justice will be served with sentences particularized as follows: For both Mr. [J.L.P.] and Mr. [T.T.A.], for the offence of robbery with violence under s. 344(b) of the Criminal Code; 40 months imprisonment. For both Mr. [J.L.P.] and Mr. [T.T.A.], for the offence of having their faces masked with intent to commit an indictable offence under s. 351(2) of the Criminal Code; four months of imprisonment consecutive to the sentence for the robbery with violence. The total of these sentences is 44 months. Having regard for the fact that both accused have been in custody since January 31, 2007 -- which is a period of nearly 10 months -- I will give each of them two for one credit for time served on remand which is 20 months. The sentence which each of them will serve from this date is two years to be served in a federal penitentiary. [39] The sentence that I have imposed on each of these offenders takes into consideration their lengthy record of offences committed as young offenders, the gravity of the offence, the violence against the victim, the fact that a high speed chase ensued within the City of Regina, and the need to deter not only these individuals but also anyone else who might consider committing the offence of robbery. These are appropriate sentences in the circumstances. note for the record that the Crown and counsel for Mr. [T.T.A.] had made joint submission for sentence of two years to be served in federal penitentiary so that Mr. [T.T.A.] could have access to better programming and treatment while incarcerated. Even without the joint submission, this court would have concluded that penitentiary term was warranted in addition to the time served on remand. [40] Counsel for Mr. [J.L.P.] on the other hand, had submitted that an additional 12 months would have been sufficient given that his client had served the equivalent of 20 months already. However, considering that there were few mitigating circumstances and numerous aggravating circumstances which take this offender and this offence out of the lower range of three years, and the fact that consecutive term of imprisonment was warranted for the s. 351(2) Criminal Code offence, can say with certainty that Mr. [J.L.P.] was facing sentence of more than two years in addition to time served on remand. In this case, parity in sentencing has worked in his favour. [41] The Crown has advised that no order for DNA sample is required in respect of Mr. [J.L.P.] as there has been previous order. However, do make an order in form 5.04 pursuant to s. 487.052(1) authorizing the taking from Mr. [T.T.A.], for the purposes of forensic DNA analysis, of any number of samples of one or more bodily substances that is reasonably required for that purpose by means of the investigative procedures described in s. 487.06(1) as am satisfied it is in the best interests of the administration of justice to do so. [42] Further, pursuant to s. 109 of the Criminal Code also make an order prohibiting both Mr. [J.L.P.] and Mr. [T.T.A.] from possessing any firearm, cross bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance during the period that begins on this day and ends not earlier than ten years after release from imprisonment. Both are required to forthwith surrender to peace officer anything the possession of which is prohibited by this order and to forthwith surrender every authorization, licence and registration certificate currently held by either of them relating to anything, the possession of which is now prohibited. The above items shall be forfeited to Her Majesty the Queen and may be disposed of as the Attorney-General directs. [43] The victim surcharge will be waived in respect of each Mr. [J.L.P.] and Mr. [T.T.A.] in consideration of the fact that they have already been in custody for ten months. G.A. Chicoine

The two accused were found guilty, after trial, of robbery with violence contrary to s. 344(b) of the Criminal Code and wearing a mask with the intent to commit an indictable offence contrary to s. 351(2) of the Code. HELD: The accused are sentenced to 40 months imprisonment for the offence of robbery with violence and 4 months consecutive for the offence of having their faces masked. Having regard for the fact that the accused have been in custody for nearly 10 months, the Court gives them two for one credit for time served in remand which is 20 months. The sentence is 2 years to be served in a federal penitentiary. The sentence takes into consideration their lengthy record of offences committed as young offenders, the gravity of the offence, the violence used against the victim, the fact that a high speed chase ensued in the city, and the need to deter not only these accused but other who might consider committing the offence of robbery.

2_2007skqb444.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2006 SKQB 274 Date: 2006 06 09 Docket: Q.B.A. No. 04/05 Judicial Centre: Battleford BETWEEN: IDANALL KORNER RANCH LTD. ERICK RODNEY ALSAGER and 587214 SASKATCHEWAN LTD. and HER MAJESTY THE QUEEN Counsel: R. A. Robertson for the appellants F. G. Impey for the respondent JUDGMENT ROTHERY J. June 9, 2006 [1] The appellants were convicted by Young P.C.J. of several offences pursuant to the Health of Animals Act, S.C. 1990, c. 21 (the “Act”) and the Health of Animals Regulations, [SOR/91-525, s.1] (the “Regulations”) resulting from their handling of elk and from obstructing inspectors. Erick Rodney Alsager (“Alsager”) was convicted of all eight offences, and the corporations under his control were convicted of five offences and two offences respectively. The total sentence imposed by the learned trial judge was a fine of $69,000, allocated amongst the fifteen counts. [2] Counsel for the appellants appealed this sentence on the basis that the fines were too harsh and the consecutive sentences exceed the overall capability of the offender to pay. When counsel for the appellants first argued this case on appeal on September 9, 2005, accepted counsel’s submissions that the learned trial judge erred in law in imposing fines without regard to the offenders’ ability to pay, as required by s. 734(2) of the Criminal Code, R.S.C. 1985, c.C-46. ordered that the matter be remitted to Young P.C.J. for such enquiry to be made and suspended the time for payment pending his enquiry. [3] At that appeal, both counsel for the appellants and for the Crown agreed that the appropriate calculation for imprisonment in default of payment is prescribed by s. 734(8) of the Criminal Code. That is, the statutory default calculations provided by s. 734(4)and (5) apply to these offences. Thus, the default provisions in the sentences shall be varied accordingly. [4] On December 13, 2005, Young P.C.J. made the requisite enquiries of the appellants’ abilities to pay the fines and concluded that they indeed had the ability to pay. Young P.C.J. allowed the appellants until September 1, 2006 to pay the fines. [5] On May16, 2006, counsel for the appellants continued this appeal. Crown objected to my jurisdiction to hear the appeal, claiming that was functus officio when sent the matter back to Young P.C.J. for his enquiries about the appellants’ ability to pay. However, Crown had no objection to proceeding with the appeal as new appeal, and Crown agrees to an order regularizing the notice of appeal, if necessary. Both counsel further agree that the only ground of appeal is whether the fines are excessive. They further agree that the statutory default days for Alsager’s imprisonment under the learned trial judge’s sentence is 724 days, as the sentences are consecutive. [6] conclude that have jurisdiction to continue this appeal on the basis that referred the matter back to the learned provincial court judge to make the necessary enquiry of the appellants’ ability to pay their fines. In doing so, was acting in accordance with s. 683(1)(b)(ii) of the Criminal Code. Because this is an appeal taken under s. 813 of the Criminal Code, ss. 683 to 689 apply. Counsel for the appellants referred me to the British Columbia Court of Appeal decision of R. v. Debaat (1992), 1992 CanLII 459 (BC CA), 15 C.R. (4th) 226 wherein this provision was used to refer the matter back to the trial judge to enquire into the offender’s ability to pay, and to report back to the appellate court once that enquiry has been made. That is exactly what directed the learned provincial court judge to do in this case, and full enquiry has been completed. The matter is now before me to continue the appeal solely on the basis that the learned provincial court judge erred in setting the fines at such high amount. [7] These convictions result from actions taken by Alsager and the two corporate appellants in handling certain elk following the outbreak of chronic wasting disease (“CWD”) in 2000 2001. Alsager was major elk farmer and continues to be so. Because CWD was found in his and the corporations’ herds, the Canadian Food Inspection Agency (the “CFIA”) ordered the destruction of about 750 elk on the ranch. The appellants were compensated under federal programme for their losses. Alsager was allowed to keep separate herd of older bull elk for sport hunting, where each elk shot would then be tested for CWD at later date. [8] Alsager purchased another 36 elk and brought them onto his property while it was under quarantine. That was done so without receiving the necessary permits from CFIA. After bringing the 36 elk onto the quarantined property, Alsager later moved them to the separate land during the rutting season where the hunt bull elk were located. When the inspectors attempted to investigate breaches of the Regulations, Alsager and one of the corporate appellants obstructed the inspectors in their duties. [9] All this led to the fifteen counts against the appellants. The summary of the convictions and resulting fines are as follows: Count 1: moving 36 elk without permit, contrary to s. 76(1) of the Regulations, committing an offence contrary to s. 65(1) of the Act Alsager fined $6000, Idanall Korner Ranch Ltd. (“Idanall”) fined $4000, and 587214 Saskatchewan Ltd. fined $4000. Count 2: taking 36 elk into an infected place without licence issued by an inspector, contrary to s. 25 of the Act, committing an offence contrary to s. 66 of the Act Alsager fined $6000, Idanall fined $4000, and 587214 Saskatchewan Ltd. fined $4000. Count 3: unlawfully removing 36 elk from place of quarantine without the inspector’s authorization, contrary to s. 91.4(2)(a) of the Regulations, committing an offence contrary to s. 65(1) of the Act Alsager fined $6000 and Idanall fined $4000. Count 4: unlawfully allowing 36 elk to come into contact with an animal not under the same quarantine order, contrary to s. 91.4(2)(b) of the Regulations, committing an offence contrary to s. 65(1) of the Act Alsager fined $6000 and Idanall fined $4000. Count 5: on September 16, 2002, Alsager obstructed or hindered an inspector performing his duties under s. 38(1) of the Act by withholding information of the location of the 36 elk, by failing to present the elk for inspection, and by failing to provide reasonable assistance in locating and inspecting the elk, contrary to s. 35 of the Act, and committing an offence contrary to s. 65(1) of the Act, and was fined $4000. Count 6: on September 26, 2002, Alsager obstructed an inspector, and was fined $4000. Count 7: on October 3, 2002, Alsager obstructed an inspector, and was fined $4000. Count 8: between October and December 9, 2002, Alsager and Idanall obstructed an inspector, and Alsager was fined $4000 and Idanall was fined $3000. [10] Counsel for the appellants submits that these fines, for total of $69,000, with consecutive default penalties for Alsager, offends the totality principle articulated in R. v. M. C.A.) 1996 CanLII 230 (SCC), [1996] S.C.R. 500. As stated in para. 42 of M. C.A.), the sentencing judge must ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. In this case, by making the fines consecutive, Alsager could be imprisoned for just under two years for non-payment of the fines. [11] Counsel for the appellants submits that the total amount of fines is excessive for the offences committed. Counsel submits this is not in keeping with the sentencing principles articulated in s. 718 of the Criminal Code. More particularly, the large fine does not meet the objective of assisting in the rehabilitation of the offender. [12] The starting point for the appellate court in considering the sentence imposed by the trial judge is carefully summarized in R. v. [K.J.P.], R. v. Gaveronski 2002 SKCA (CanLII) at para. 16 where Jackson J.A. states: 16 Appellate courts are urged by series of Supreme Court of Canada decisions to take light hand with respect to assessing the fitness of sentences imposed. In R. v. Proulx, 2000 SCC (CanLII), [2000] S.C.R. 61, the following references with respect to deference appear: In para. 123 the Court states that it has "repeatedly stated that the sentence imposed by trial court is entitled to considerable deference from appellate courts", and cites R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] S.C.R. 227 at paras. 46‑50; .v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] S.C.R. 500, at paras. 89‑94; R. v. McDonnell, 1997 CanLII 389 (SCC), [1997] S.C.R. 948 at paras. 15‑17; R. v. W. (G.), 1999 CanLII 668 (SCC), [1999] S.C.R. 597, at paras. 18‑19; At para. 125, Lamer C.J.C., writes as follows: [125] Although an appellate court might entertain different opinion as to what objectives should be pursued and the best way to do so, that difference will generally not constitute an error of law justifying interference. Further, minor errors in the sequence of application of s. 742.1 may not warrant intervention by appellate courts. Again, stress that appellate courts should not second‑guess sentencing judges unless the sentence imposed is demonstrably unfit. At this point in the judgment, Lamer C.J.C., quotes from M. (C.A.) at para. 91 where the Supreme Court confirms that: [91] [M]ost importantly, the sentencing judge will normally preside near or within the community which has suffered the consequences of the offender's crime. As such, the sentencing judge will have strong sense of the particular blend of sentencing goals that will be "just and appropriate" for the protection of that community. In para. 127, at point 13, Lamer C.J.C., reiterates "[s]entencing judges have wide discretion in the choice of the appropriate sentence. They are entitled to considerable deference from appellate courts." He then reaffirms the most often quoted assessment of the standard of appellate review taken from para. 90 in M. (C.A.): [90] Put simply, absent an error in principle, failure to consider relevant factor, or an overemphasis of the appropriate factors, court of appeal should only intervene to vary sentence imposed at trial if the sentence is demonstrably unfit. [13] This Act is public welfare statute. Thus, the principle of deterrence is critical in sentencing. As stated in R. v. Cotton Felts Ltd. (1982), 1982 CanLII 3695 (ON CA), C.C.C. (3d) 287 (Ont. C.A.) at p. 294-295: Examples of this type of statute [public welfare statutes] are legion and cover all facets of life ranging from safety and consumer protection to ecological conservation. In our complex interdependent modern society such regulatory statutes are accepted as essential in the public interest. They ensure standards of conduct, performance and reliability by various economic groups and make life tolerable for all. To very large extent the enforcement of such statutes is achieved by fines imposed on offending corporations. The amount of the fine will be determined by complex of considerations, including the size of the company involved, the scope of the economic activity in issue, the extent of actual and potential harm to the public, and the maximum penalty prescribed by statute. Above all, the amount of the fine will be determined by the need to enforce regulatory standards by deterrence: see R. v. Ford Motor Co. of Canada Ltd. (1979), 1979 CanLII 2838 (ON CA), 49 C.C.C. (2d) at p. 26, M.V.R. 237, per MacKinnon A.C.J.O., Nadin‑Davis, Sentencing in Canada (1982), p. 368 and cases therein cited. The paramount importance of deterrence in this type of case has been recognized by this court in number of recent decisions. An example is provided by R. v. Hoffmann‑LaRoche Ltd. (No. 2) (1980), 1980 CanLII 2695 (ON SC), 56 C.C.C. (2d) 563, 119 D.L.R. (3d) 279, 30 O.R. (2d) 461. ... Another example is provided by this court's decision in R. v. K‑Mart Canada Ltd. (1982), 1982 CanLII 3811 (ON CA), 66 C.C.C. (2d) 329, 28 C.R. (3d) 271. In that case the court increased fine of $25,000 to $100,000 for company convicted of conspiring to interfere with the formation and operation of trade union, contrary to the Labour Relations Act, R.S.O. 1970, c. 232, now R.S.O. 1980, c. 228. In so doing Chief Justice Howland had this to say at p. 332: In our opinion, the fine imposed did not adequately reflect the gravity of the offence and was an error in principle. The fine must not be tantamount to licence fee to commit illegal activity, but must be sufficiently substantial to warn others that such illegal activity will not be tolerated. The main factors in the computation of fine expressed in these decisions are the same as those expressed by Judge Dnieper. Without being harsh, the fine must be substantial enough to warn others that the offence will not be tolerated. It must not appear to be mere licence fee for illegal activity. With reference to these offences, deterrence is not to be taken only in its usual negative connotation of achieving compliance by threat of punishment. Recently my brother Zuber in R. v. Ramdass, judgment pronounced on November 17, 1982 [since reported 1982 CanLII 3694 (ON CA), C.C.C. (3d) 247] referred to deterrence in more positive aspect. There he was dealing with driving offence and he quoted an earlier unreported decision of this court in R. v. Roussy, [1977] O.J. No. 1208, unreported, released December 15, 1977 [summarized W.C.B. 72] where the court stated: But in crime of this type the deterrent quality of the sentence must be given paramount consideration, and here am using the term deterrent in its widest sense. sentence by emphasizing community disapproval of an act, and branding it as reprehensible has moral or educative effect, and thereby affects the attitude of the public. One then hopes that person with an attitude thus conditioned to regard conduct as reprehensible will not likely commit such an act. This aspect of deterrence is particularly applicable to public welfare offences where it is essential for the proper functioning of our society for citizens at large to expect that basic rules are established and enforced to protect the physical, economic and social welfare of the public. [14] It is clear from the judgment of Young P.C.J. that Alsager’s sentence reflects that basic rules be enforced to ensure the welfare of the public, and specifically, the safety and welfare of the elk ranching industry. The sentencing judge found Alsager arrogant and unrepentant. At pages 5-6 of his decision, Young P.C.J. states: Having his herd destroyed and receiving the compensation checks, Alsager just couldn’t get back into elk fast enough. His herd was destroyed in August of 2001. Instead of getting to work on compliance with the cleanup and disinfectant protocol he is out buying more elk just couple of months later. His extensive knowledge of elk is likely the basis of his challenge to the cleanup protocol. He thought he should be able to design his own protocol, insist on an inspection and have his quarantine and designation lifted. If Parliament had wanted every farmer to design their own cleanup protocol they would have said so in the Health of Animals Act. For some reason Parliament has left both the imposing of quarantines and designations of infected premises in the hands of federally appointed inspectors many of whom appear to be veterinarians. Parliament has also left the lifting of these orders in the hands of those same inspectors. What it takes to get these inspectors to lift these orders is not set by statute. From the evidence the inspectors or others have set some policies to guide their decision making and obviously to give some uniformity and consistency in the imposing and lifting of these orders. Dr. McLane testified that this was new disease and the policy was evolving with the science. The purpose of the legislation and any concept of the greater public good seems to have been lost on Mr. Alsager. He is apparently content to live in, raise his children in, and eat the food in country where every individual producer can determine for himself protocol for dealing with infectious disease and food safety. [15] The sentencing judge was advised that Alsager had been previously convicted in 1990 of transporting wildlife without prescribed documents and was fined $700. The sentencing judge concluded that Alsager intentionally put the elk industry at risk. He decided that the fines must be sufficient to deter Alsager and the public in general. The sentencing judge was also aware that Alsager was a leader in the elk industry. That is a factor that would require a sufficient fine to set an example for others in the industry and within Alsager’s own community. [16] There was only one other conviction under the Act that Crown was able to refer the sentencing judge to. The headnote of R. v. Pouliot states that the Quebec Superior Court sentenced the offender to fine of $4000. Pouliot had three white-tailed deer in his possession that had been moved without the permit required under s.160 of the Regulations, thus contravening s. 76(2) of the Act. These deer were not exposed to any infectious disease such as CWD. [17] In this case of fifteen convictions, the maximum fines prescribed by the Act are $750,000. The total fine of $69,000 for placing elk in danger and for obstructing inspectors cannot be considered disproportionately high. Given the need for the sentencing judge to address deterrence in a public welfare statute, I cannot find that the sentence was “demonstrably unfit.” Oppositely, it is both appropriate and fit. [18] Counsel for the appellants argues that the sentencing judge did not take Alsager’s rehabilitation into consideration. Given these types of offences, that is not an error of law. Counsel also suggests that the consecutive offences for Alsager’s handling of the 36 elk ought to have been concurrent offences. Because find the overall sentence to be appropriate, cannot interfere with the sentence on this basis, even if agreed with counsel’s submissions. [19] In summary, other than varying the default provisions to the statutory default times outlined in s. 734(8) of the Criminal Code, this appeal is dismissed. J. A. R. Rothery

DIGEST The appellants were convicted of several offences pursuant to the Health of Animals Act and Regulations resulting from their handling of elk and from obstructing inspectors. The total sentence imposed by the trial judge was $69,000. HELD: 1) The sentencing judge was aware that the appellants had been previously convicted in 1990 of transporting wildlife without the prescribed documents. The sentencing judge determined that the fines must be sufficient to deter the appellants and the general public. The sentencing judge was also aware that the appellants are leaders in the elk industry. This is a factor that would require a sufficient fine to set an example for others in the industry and within the appellants' community. 2) In this case of fifteen convictions, the maximum fines prescribed are $750,000. The total fine of $69,000 for placing elk in danger and for obstructing inspectors cannot be considered disproportionately high. Given the need for the sentencing judge to address deterrence in a public welfare statute, the court could not find the sentence was 'demonstrably unfit'. Oppositely, it is both appropriate and fit. 3) Other than varying the default provisions to the statutory default times outlined in s. 734(8) of the Criminal Code, this appeal is dismissed.

8_2006skqb274.txt

nan REDACTED VERSION QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2014 SKQB 23 Date: 2014 01 23 Docket: Q.B.G. 1494 of 2013 Judicial Centre: Regina BETWEEN: TRYSTAN LAWLESS, KAYLEIGH LAWLESS, AYDAN LAWLESS, KENZY LAWLESS AND RYLAN LAWLESS, BY THEIR LITIGATION GUARDIAN KHRISTINA LAWLESS and CONSEIL SCOLAIRE FRANSASKOIS Counsel: Anthony Tibbs for the plaintiffs Roger LePage and Francis Poulin for the defendant DECISION BALL J. January 23, 2014 INTRODUCTION [1] The plaintiffs are the five children of Khristina and Chad Lawless, who reside near Maryfield, Saskatchewan. Although the Lawless family has an English speaking background, from 2010 until 2013 the children attended École de Bellegarde, French language school located approximately 35 km from Maryfield. Their attendance at the school was made possible by provisional permission to attend granted to the family by the defendant. [2] During the children’s time at the school, serious disagreements arose between the school administration and the children’s mother, Khristina Lawless. The disagreements related to whether Khristina and Chad Lawless were living up to the formal commitments they had given to the defendant in return for its provisional permission for the children to attend the school, and whether the school was doing enough to accommodate the eldest child Trystan Lawless’ special educational needs. [3] In February of 2013, the defendant informed the family that the children’s provisional approval to attend École de Bellegarde would not be extended for the 2013-2014 school year. Shortly thereafter Trystan Lawless, as represented by Khristina Lawless, filed complaint with the Saskatchewan Human Rights Commission (the “SHRC”) alleging that the defendant had discriminated against him because he had service dog. [4] In August of 2013, the five Lawless children, as represented by Khristina Lawless, commenced this action against the defendant and then applied for an interlocutory injunction that would order the defendant to grant them ongoing permission to attend École de Bellegarde. On or about September 1, 2013, the five children began attending the English language school in Maryfield. On September 10, 2013, the defendant applied to strike out the statement of claim. [5] The plaintiffs’ application for an interlocutory injunction and the defendant’s application to strike out the plaintiffs’ claim were both heard in Chambers on November 7, 2013. At the conclusion of the hearing the application to dismiss the claim was reserved, while the application for an interlocutory injunction was dismissed with written reasons to follow. This decision provides the court’s reasons for decision on both applications. [6] The defendant is conseil scolaire created by s. 42.1 of The Education Act, 1995, S.S. 1995, c. E-0.2 to exercise general supervision and control over French language instruction programs and fransaskois schools in Saskatchewan. Its duties and responsibilities are outlined in detail in s. 86(b) of The Education Act. Although The Education Act distinguishes between “conseil scolaire fransaskois (or “CSF”) and “conseil ecole fransaskois (or “CÉF”) the parties consistently referred to the defendant as the “CÉF”. will do the same from this point forward. [7] Not all Canadian citizens have the right to have their children educated in French. Sections 23(1) and (2) of the Canadian Charter of Rights and Freedoms (“Charter”) state: 23.(1) Citizens of Canada (a) whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside, or (b) who have received their primary school instruction in Canada in English or French and reside in province where the language in which they received that instruction is the language of the English or French linguistic minority population of the province, have the right to have their children receive primary and secondary school instruction in that language in that province. (93) (2) Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada, have the right to have all their children receive primary and secondary school instruction in the same language. [8] It is common ground that Khristina and Chad Lawless did not, and do not, have the right to have their children educated in French pursuant to s. 23 of the Charter. Accordingly, their children could only attend École de Bellegarde if the defendant agreed they could attend pursuant to s. 144 of The Education Act which provides: 144 person who has attained the age of six years but has not yet attained the age of 22 years and whose parent is not minority language adult may attend fransaskois school in any francophone education area that exists or becomes established if the attendance of that person at fransaskois school in the francophone education area is agreed to by: (a) the board of education of the school division where the person would otherwise attend school; and (b) the conseil scolaire. [9] In carrying out its authority under s. 144 of The Education Act, the CÉF has established policy for allowing anglophone parents who choose to forge genuine link with the fransaskois community to have their children to attend fransaskois school. The parents must give 10 commitments to the CÉF, all of which are designed to ensure that the children acquire french language skills and become integrated into the francophone culture and community. In return for those commitments, the children may be granted provisional or permanent permission to attend. If granted provisional permission, the commitments given by the non-rights holder parents are evaluated after 12 months. At that point, the CÉF may admit the children on permanent basis or renew the provisional permission. [10] The five Lawless plaintiffs are: Trystan, now 16 years old; Kayleigh, 12; Aydan, 11; Kenzy, and Rylan, 5. The three eldest children (Trystan, Kayleigh and Aydan) began their education at an English language school in Maryfield. In June of 2009, Trystan was diagnosed as having “Autistic Spectrum Disorder-Asperger’s Type”. Unspecified difficulties then arose between the Lawless parents and the Maryfield school. [11] In January of 2010, Khristina and Chad Lawless applied for and received provisional permission from the CÉF for Trystan, Kayleigh and Aydan to attend École de Bellegarde, which is located approximately 35 kilometres from Maryfield. Kenzy and Rylan were not yet of school age. [12] The provisional approval for the three eldest Lawless children to attend École de Bellegarde for the 2010-2011 school year was subject to the following commitments given by Khristina and Chad Lawless: 1. promote the French language and culture to the child 2. provide the child with access to French teaching resources 3. recognize that French is the language of communication and activities between the Francophone school and the parent or legal guardian 4. allow the child to be evaluated to ensure proper integration into the school curriculum 5. allow the child to attend francisation program if recommended 6. promote the child’s integration into the Francophone community 7. encourage learning of the French language in partnership with the school 8. promote the Francophone environment at the school 9. encourage further studies in French to the end of high school 10. provide my child with the necessary support to the end of high school to help improve his or her language skills in French THE ÉCOLE DE BELLEGARDE EXPERIENCE [13] When they began attending École de Bellegarde, Trystan was in grade 7, Kayleigh in grade and Aydan in grade 2. In June of 2011, the Lawless parents’ 10 commitments were evaluated and the family’s provisional admission was renewed for the 2011-2012 school year, it being understood that in September of 2011, Kenzy Lawless, then age 4, would begin attending kindergarten (maternelle) at the school. However, their provisional admission was subject to the implementation of new rules of communication that required Khristina Lawless to, as first step, communicate directly with school staff members against whom she had complaint. [14] The new rules were put in place because of developing tensions between Khristina Lawless and École de Bellegarde’s administrators. Mrs. Lawless believed that the school had failed to introduce adequate programs and services to address Trystan’s special educational and social needs. School personnel believed that Mrs. Lawless was impossible to satisfy. They believed that she continued to be harshly critical of them in speaking to members of the community, but that she would not raise her concerns with them directly. They had continuing concern that the Lawless parents were ignoring their commitments to participate in the children’s francophone education. [15] In January of 2012, Khristina Lawless informed École de Bellegarde that Trystan had been approved for service dog and that accommodation should be made so that he could have the service dog with him at school. The reaction of school administration was less than satisfactory to Mrs. Lawless. Based on the affidavit evidence, some of her concerns were understandable. Tensions between her and the school administration escalated rapidly. The issues surrounding the service dog, named “Tank”, were compounded by series of events involving Trystan’s erratic behaviour towards other students and staff members. This led to disciplinary measures being imposed by the school which Mrs. Lawless viewed as harsh and unfair. [16] In May of 2012, Robert Lessard, the Assistant Education Superintendent of the CÉF, met with Khristina and Chad Lawless to evaluate their 10 commitments. Following that meeting, Mr. Lessard wrote an extensive report expressing number of concerns. The following excerpts from the report provide flavour of the CÉF’s perspective on the problems, as well as Mr. Lessard’s (RL’s) interpretation: 4. Allow the child to be evaluated to ensure proper integration into the school curriculum. (-) The family applied for service dog for Trystan, without including the school in the process. (-) The family [did] not provide the requested documentation to facilitate the evaluation of this type of request on the school community, and if necessary, to facilitate the integration of the child with guide dog. The family told us that they will give us documentation when they receive it, but told member of the community that it will never provide this information to the school. (-) Working with the family is very difficult. At the beginning of the year, we agreed to meet once per month to prevent misunderstandings. (The family repeated on May 23 that we have met this often). This has not been the case at all. In fact, the family has been too busy all year to come to parent/student interviews and found it difficult to attend emergency meetings. (-) High school teachers have stopped communicating with the family given the family’s refusal to cooperate. (-) The family has systematically been against all of the school’s decisions about setting up plan to make Trystan more autonomous despite consulting with an autism specialist as requested by the family. RL’s interpretation: This is the major issue that affects the family’s chances. For two years, the relationship has been very tense and collaboration with the Fransaskois school is very limited. The family has questioned several of the school’s interventions and plans. The family’s involvement in student success and [sic] strongly questioned. These findings raise questions about the effectiveness of the Fransaskois school in achieving educational success for children. During the May 23 interview, the mother talked about the importance of French in the future of her children (for jobs among other things), but this does not seem to exceed the expectations of parents who enroll their children in French immersion program. 7. Encourage leaning of the French language in partnership with the school. (-) The family does not cooperate with the teachers, language instructor, teaching assistant or administration. Homework is not done, signatures are missing when the language instructor follows up on French language learning, they refuse to speak with the administration when they want to conduct meeting, etc. (-) The parents have never attended parent/teacher meetings (interviews twice per year) for any of their four children. (-) The parents have always had great difficulty in coming to school when necessary (3Pe, meeting because of the suspension of child, meetings to discuss problems, etc.). At the May 23 meeting, they said they came to school once per month, which is false. In addition, they always question the expertise of school staff. [17] Notwithstanding its concerns, the CÉF extended its provisional permission for the Lawless children to attend École de Bellegarde for the 2012-2013 school year, subject to additional commitments from the parents. By the fall of 2012, all five of the Lawless children were attending school at École de Bellegarde, including Rylan, then four years old, who had entered kindergarten (maternelle). [18] The relationship between Mrs. Lawless and the CÉF continued to worsen. On October 30, 2012, Trystan was alleged to have thrown metre stick and dictionary at one student, missing that student but injuring another. Trystan was suspended, reinstated briefly under supervision plan, and then removed from the school again (although not “suspended”) week later because the CÉF felt it was unable to provide him with the supervision he required. Following an assessment, it was concluded that the event seemed to be an isolated one, that the school could carry on by providing “the right support and interventions”, and that there was need “to satisfy Trystan’s engagement to be in school and to learn”. Trystan returned to school on or about November 14, 2012. [19] In January of 2013, the CÉF met again with the Lawless parents to discuss their 10 commitments. Mr. and Mrs. Lawless left part way through the meeting. The CÉF gave them an opportunity to respond to the evaluation in writing, which they did on February 7, 2013. That same day, Trystan was suspended for 10 school days from École de Bellegarde for allegedly threatening to kidnap and kill two other students. [Sentence omitted]. [20] On February 15, Mrs. Lawless appealed Trystan’s suspension to the Vice-Principal of the CÉF in Saskatoon, Frances LaClare, taking the position that Trystan was not responsible for his conduct because of autism and that the school had failed to understand and address his special needs. [21] All of this had profound affect on teachers, parents and other students attending École de Bellegarde. As one example, Brian Magotiaux, teacher at École de Bellegarde and resident of the French speaking hamlet, stated in his affidavit: 15. In February 2012, after the incidents which led to the suspension of Trystan, began to reflect on the situation at the school. was living under considerable stress. thought about my relationship with Trystan and knew that Madam Lawless didn’t like me at all. felt targeted, and this led me to notify the Principal of the school that would have to take stress related leave if Trystan came back to the school and if had to again deal with the Lawlesses. believed at that time that this would be in the best interest of the students of the school because would not be able to offer them quality teaching. [22] As one other example, resident of the community and parent of two children at École de Bellegarde (one of whom had been allegedly assaulted and threatened by Trystan at school), stated in an affidavit: 21. In the event that Trystan would go back to school, we would have to find another school that would not put my daughter’s safety in jeopardy. Being right holder, an education in french is very important to us so this would be big decision because we would miss our community, but in cases like this, we have to do what is best for the safety of our daughter. (Affidavit of [T.R.], sworn September 6, 2013) THE REFUSAL TO EXTEND PERMISSION TO ATTEND [23] On February 12, 2013, the management group of École de Bellegarde made recommendation to Bernard Roy, the Director of Education of the CÉF, recommending against extending permission to the Lawless family to attend the school for the 2013-2014 school year or in the future. On February 15, 2013, Mr. Roy wrote letter to Mr. and Mrs. Lawless informing them that the CÉF had decided not to renew their provisional permission to attend for the 2013-2014 school year. Mr. Roy’s letter stated, in part: ... In accordance with the CÉF admission policy, the principal’s office of Ecole de Bellegarde completed its evaluation and formulated recommendation for me. copy of the recommendation is attached. Based on this recommendation and detailed examination of your records, reached the decision not to renew your provisional permission for admission to the CÉF for 2013-2014. Your children must therefore leave the school permanently at the end of this school year, on June 27, 2013. However, if you wish them to transfer now, we will facilitate this. ... Mr. Roy’s letter went on to state that the CÉF’s decision not to renew provisional permission was based on the Lawless parents’ failure to live up to three of their ten commitments: 1. Their failure to foster the children’s integration into the francophone community; 2. Their failure to encourage learning of the French language in partnership with the school; and 3. Their failure to encourage the children’s learning in French. [24] The letter concluded with the following: More generally, you still do not seem to have understood the mandate of Ecole de Bellegarde. This is not school dedicated to the learning of second language; its mission is to ensure the increasing use of French as first language in the community. Special emphasis is therefore placed on culture, identity development and the sense of community. Our staff have explained to you the obligations associated with these objectives. According to all the information we have, you do not seem to grasp what is required of you in this respect as non-rights holder family. Moreover, it is expected that family that obtains permission for admission would make significant contribution to the development of the francophone community. Unfortunately, the nature of our relationship with your family and the feeble contributions by your family to the Francophone undermine the possibility of fulfilling this requirement for non-rights holder family. For these reasons, your provisional permission for admission will not be renewed for the 2013-2014 school year. [25] On February 25, 2013, CÉF discipline committee suspended Trystan from school. The remaining four Lawless children continued to attend École de Bellegarde for the remainder of the school year. LEGAL PROCEEDINGS [26] On March 11, 2013, the Lawless parents appealed the Director of Education’s decision not to renew the children’s permission to attend École de Bellegarde to the elected board members of the CÉF. Their letter of appeal argued that the decision had been based almost entirely on Trystan’s special needs and the accommodations relating to them, and that it had “nothing whatsoever to do with learning of the French language, adoption of the French cultural [sic] or integration into the French community.” Neither party identified the provisions of The Education Act establishing this right of appeal, or conferring an appellate authority on the elected board members. [27] On or about April 16, 2013, Khristina Lawless, as litigation guardian for Trystan Lawless, filed complaint under s. 27 of The Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1 (the “Code”) with the Saskatchewan Human Rights Commission (the “SHRC”). The complaint stated: ... Trystan is student that has endured, and continues to endure, differential treatment because of his disability. As student at Ecole de Bellegarde, he is treated differently because he has service dog (Autism Assistance Dog) named “Tank”. School officials will not allow Tank full access in the school. They say Tank cannot fully have access to the school premises as some people may have dog related allergies. Trystan is now exempt from certain class activities and certain classrooms. Often, he is segregated from his fellow students. Ecole de Bellegarde is aware that Trystan needs to have Tank with him at all times, but they will not accommodate his medical need. Ecole de Bellegarde has failed, and continues to fail, to provide an educational environment free from discrimination, and discriminatory harassment, which caused stress, fear and isolation. ... By letter dated May 13, 2013, the SHRC informed École de Bellegarde that the complaint had been filed, and asked for response [28] The Lawless parents’ appeal to the CÉF’s elected board members was heard in Saskatoon on June 21, 2013. By letter dated June 27, 2013, the president of the CÉF informed the Lawless parents that their request for permission for admission was rejected. The letter stated, in part: The CSF concluded that continuing the admission of the Lawless family at École de Bellegarde would run counter to its admission policy and the purpose of French first language school. The Lawless family has had ample time to integrate into the Fransaskois community of Bellegarde and to meet the 10 commitments it made during registration on January 25, 2010. Despite all the support given to the Lawless family and the many meetings to describe the difficulties that arose, the CSF noted that the Lawless family was unable to meet their commitments. It is therefore in the best interest of the Bellegarde community and École de Bellegarde to refuse continued access to the Lawless family. In addition, the CSF is convinced that it is not in the best interest of the students to continue to attend the school because support for their success does not exist in this case. [29] Since then, the position taken by Khristina Lawless on behalf of the plaintiffs has essentially been that but for the CÉF’s discrimination against Trystan and his service dog “Tank”, all of the plaintiffs would have been granted provisional permission to attend École de Bellegarde for the 2013-2014 school year. She asserts that the CÉF’s ostensible concern about the Lawless family’s failure to live up to their commitments was not the real reason for its decision not to renew the children’s provisional permission to attend. The CÉF’s position has been that its decision was based entirely on the continuing failure of Khristina and Chad Lawless to honour their commitments. Neither party openly attributes the decision to the fact that the acrimonious relationship between Khristina and Trystan Lawless, on the one hand, and the teachers, administrators and other pupils at École de Bellegarde, on the other, had made productive communication between them impossible. I. THE APPLICATION TO STRIKE THE PLAINTIFFS’ CLAIM [30] will consider the CÉF’s application to strike out the plaintiffs’ claims before turning to the plaintiffs’ application for an interlocutory injunction. will do so on the basis that if there is no viable claim, there may be no juridical foundation for an injunction. As first step, will review the plaintiffs’ claims. will then summarize the submissions of the parties and review the applicable law. At that point, will analyze the viability of each claim. After dealing with the CÉF’s application to strike the claims, explain why the plaintiffs were unsuccessful in their application for an interlocutory injunction. i. The Plaintiff’s Claims [31] My assessment of the plaintiffs’ statement of claim is that it advances four basic claims: 1. That the CÉF’s decision to not grant Trystan Lawless permanent admission to École de Bellegarde discriminated against him “as person with disability” contrary to ss. 12(1) and 13(1) of the Code, with the four Lawless children “effectively collateral damage of the attack on Trystan”; 2. That the CÉF contravened ss. 23.2(1) of The Animal Protection Act, 1999, S.S. 1999, c. A-21.1 “by unlawfully interfering with the work of service animal”; 3. That the CÉF negligently allowed other students to interact with Tank so as to compromise his ability to act as service dog; 4. That the CÉF “intentionally inflicted emotional and mental suffering on Trystan Lawless. [32] Based on the above allegations, the plaintiffs seek the remedies set out in para. 135 of the statement of claim, which are: 135. ... a) declaration that the Defendant, or its agents, employees, servants and other representatives, has discriminated against Trystan Lawless (and collaterally, his siblings) on the basis of his disability in contravention of ss. 12(1) and 13(1) of The Saskatchewan Human Rights Code and s.s. 23.2(1) of The Animal Protection Act, 1999, S.S. 1999, c. A-21.1 by, inter alia: i) interfering with his use of service animal; ii) failing to accommodate his educational needs; iii) engaging in harassing and intimidating behaviour; and, iv) unlawfully imposing disciplinary sanctions including but not limited to extended suspensions; b) declaration that the Defendant, or its agents, employees, servants and other representatives, has unreasonably withheld “permission to attend” as contemplated by s. 144 of The Education Act, because of an unwillingness to accommodate his intensive learning needs; c) an injunction pursuant to s. 38(3) of The Saskatchewan Human Rights Code precluding the Defendant from interfering with or restricting in any manner Trystan’s use of service animal; d) an injunction pursuant to s. 38(3) of The Saskatchewan Human Rights Code precluding the Defendant from excluding the Plaintiffs from Ecole de Bellegarde through the unlawful exercise of its discretion pursuant to s. 144 of The Education Act; e) an injunction pursuant to s. 38(3) of The Saskatchewan Human Rights Code precluding the Defendant from depriving the Plaintiff of necessary educational supports and accommodations on the basis of their only being available in French; f) special damages for out-of-pocket expenses incurred in connection with these matters including, but not limited to, legal expenses, travel expenses, the cost of training and re-training of the service dog, notwithstanding compensation that might otherwise be available to the Plaintiff pursuant to s. 23.3(2) of The Animal Protection Act; g) general damages; h) pre-judgment interest; and ii. The Submissions of the Parties [33] The CÉF advances two arguments in support of its application to strike the plaintiffs’ claims. The first is that the plaintiffs’ claim should be struck under Rule 7-9 (2) (e) of The Queen’s Bench Rules as an abuse of process because (i) the plaintiffs never applied for judicial review to set aside the appeal decision rendered by the elected directors of the CÉF, and (ii) Trystan Lawless’ complaint under the Code remains pending before the SHRC. The CÉF’s second argument is that s. 23 of the Charter gives it an exclusive and unfettered authority to decide whether it will admit any non-rights holders to attend fransaskois school in Saskatchewan, and neither this Court nor the SHRC may inquire into its reasons or interfere with the exercise of its discretion. [34] Counsel for the CÉF made no attempt to relate these two basic arguments to the particular claims set out in the statement of claim. For example, he did not explain how the arguments might assist the CÉF with respect to the claims that it “intentionally inflicted mental and emotional suffering” on Trystan Lawless, or that it “harassed and intimidated” him, or that it negligently compromised Tank’s ability to act as service dog. Those claims were not made to the elected directors of the CÉF or to the SHRC under the Code. They are not based on an alleged breach of the Code. [35] The plaintiffs argue that none of their claims should be struck because it is not “plain and obvious” the facts as pled do not support reasonable cause of action. Counsel for the plaintiffs candidly acknowledges that they commenced this action, not because they intend to pursue it to trial, but because it would provide foundation for their application for mandatory injunction requiring the CÉF to admit them to École de Bellegarde. iii. Striking Claims: The Law [36] Rule 7-9 of The Queen’s Bench Rules (formerly Rule 173) states: 7‑9(1) If the circumstances warrant and one or more conditions pursuant to subrule (2) apply, the Court may order one or more of the following: (a) that all or any part of pleading or other document be struck out; (b) that pleading or other document be amended or set aside; (c) that judgment or an order be entered; (d) that the proceeding be stayed or dismissed. (2) The conditions for an order pursuant to subrule (1) are that the pleading or other document: (a) discloses no reasonable claim or defence, as the case may be; ... (e) is otherwise an abuse of process of the Court. (3) No evidence is admissible on an application pursuant to clause (2)(a). [37] The legal test for striking out pleading on the basis that it discloses no reasonable claim was developed by the Supreme Court of Canada in Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] S.C.R. 959, 74 D.L.R. (4th) 321. The court’s jurisdiction to strike out claim under Rule 7-9 (2)(a) is limited: assuming that the facts as stated in the pleading can be proved, it must be “plain and obvious” that it discloses no reasonable claim. If there is chance the claim might succeed, the plaintiff should not be prevented from proceeding. [38] In Collins v. McMahon, 2002 SKQB 201 (CanLII), [2002] S.J. No. 318 (QL), Gunn J. summarized the principles as follows at para. 11 The principles which apply to an application to strike plaintiff's claim under Rule 173(a) are the following: (i) The claim should be struck where, assuming the plaintiff proves everything alleged in the claim there is no reasonable chance of success. (Sagon v. Royal Bank of Canada et al. (1992), 1992 CanLII 8287 (SK CA), 105 Sask.R. 133 at 140 (C.A.)); (ii) The jurisdiction to strike claim should only be exercised in plain and obvious cases where the matter is beyond doubt. (Sagon, at 140; Milgaard v. Kujawa et al. (1994), 1994 CanLII 4592 (SK CA), 123 Sask.R. 164 (Sask. C.A.)); (iii) The court may consider only the claim, particulars furnished pursuant to demand and any document referred to in the claim upon which the plaintiff must rely to establish its case (Sagon, at p. 140); (iv) The court can strike all, or portion of the claim (Rule 173); (v) The plaintiff must state sufficient facts to establish the requisite legal elements for cause of action. (Sandy Ridge Sawing Ltd. v. Norrish and Carson (1996), 1996 CanLII 7126 (SK QB), 140 Sask.R. 146 (Q.B.)). This summary was adopted by the Saskatchewan Court of Appeal in Saskatchewan Power Corp. v. Swift Current (City), 2007 SKCA 27 (CanLII), 293 Sask. R. 6. [39] In Sagon v. Royal Bank of Canada, (1992) 1992 CanLII 8287 (SK CA), 105 Sask. R. 133, [1992] S. J. No. 197 (QL)(Sask. C.A.), Sherstobitoff J.A. differentiated between striking pleadings on the basis that they disclose no reasonable claim and striking out pleadings on the basis that they are an abuse of process of the court. In relation to the former, he stated at para. 16 In determining whether claim should be struck as disclosing no reasonable cause of action, the test is whether, assuming the plaintiff proves everything alleged in his claim, there is nevertheless no reasonable chance of success, or to put it another way, no arguable case. The court should exercise its jurisdiction to strike on this ground only in plain and obvious cases and where the court is satisfied that the case is beyond doubt: Marshall v. Saskatchewan, Government of, Petz and Adams (1983), 1982 CanLII 2387 (SK CA), 20 Sask. R. 309 (C.A.); The Attorney General of Canada v. Inuit Tapirisat, 1980 CanLII 21 (SCC), [1980] S.C.R. 735. The court may consider only the statement of claim, any particulars furnished pursuant to demand, and any document referred to in the claim upon which the plaintiff must rely to establish his case: Balacko v. Eaton's of Canada Limited (1967), 1967 CanLII 369 (SK QB), 60 W.W.R. 22 (Sask. Q.B.); Lackmanec v. Hoffman (1982), 1982 CanLII 2585 (SK CA), 15 Sask. R. (C.A.). And in relation to the latter, he stated at para. 18: 18 Striking out an entire claim on the ground that it is frivolous, vexatious or an abuse of process of the court is based on an entirely different footing. Instead of considering merely the adequacy of the pleadings to support reasonable cause of action, it may involve an assessment of the merits of the claim, and the motives of the plaintiff in bringing it. Evidence other than the pleadings is admissible. Success on such an application will normally result in dismissal of the action, with the result that the rule of res judicata will likely apply to any subsequent efforts to bring new actions based on the same facts. Odgers on Pleadings and Practice, 20th ed. says at pp. 153‑4: If, in all the circumstances of the case, it is obvious that the claim or defence is devoid of all merit or cannot possibly succeed, an order may be made. But it is jurisdiction which ought to be very sparingly exercised, and only in very exceptional cases. Its exercise would not be justified merely because the story told in the pleadings is highly improbable, and one which it is difficult to believe could be proved. [footnotes omitted] [40] The submissions made by counsel on both sides were general in nature. They did not focus on the specific claims advanced by the plaintiffs, nor offer guidance on whether those claims disclose reasonable cause of action or amount to an abuse of process. The claims have been summarized at para. 31 above. will do what can to relate the general submissions of counsel to each of those claims. First Claim [41] The plaintiffs’ first claim is that the CÉF’s decision not to grant Trystan Lawless permanent permission to attend École de Bellegarde “discriminated against him as person with disability” and that the other Lawless children were “effectively collateral damage of the attack on Trystan”. They seek two remedies arising from their claim. One, at para. 135(a) of the statement of claim, is declaration that the CÉF “discriminated against Trystan Lawless (and collaterally, his siblings) on the basis of his disability in contravention of ss. 12(1) and 13(1) of the [Code].” The other, at para. 135(d) of the statement of claim, is an injunction precluding the CÉF “... from excluding the plaintiffs from École de Bellegarde through the unlawful exercise of its discretion pursuant to s. 144 of [The Education Act].” [42] Section 12(1)(b) of the Code states: 12(1) No person, directly or indirectly, alone or with another, or by the interposition of another shall, on the basis of prohibited ground: ... (b) discriminate against any person or class of persons with respect to the accommodation, services or facilities to which the public is customarily admitted or that are offered to the public. [43] Section 13(1) of the Code states: 13(1) Every person and every class of persons shall enjoy the right to education in any school, college, university or other institution or place of learning, vocational training or apprenticeship without discrimination on the basis of prohibited ground other than age. [44] The CÉF’s first argument in response to this claim is that it should be struck as an abuse of process because the plaintiffs (i) are estopped from re-litigating the same claim as the one already dismissed by way of appeal to the CÉF’s elected board of directors; and/or (ii) cannot pursue essentially the same claim in more than one forum that is, pursue complaint to the SHRC under the Code, and pursue the same claim at the same time by way of civil proceeding in court. (i) The Appeal to the CÉF: Issue Estoppel [45] The CÉF argues that the plaintiffs are estopped from pursuing their claim of discrimination because the same claim has already been rejected by the CÉF’s elected board members. In support of that argument, counsel for the CÉF cites the recent decisions of the Supreme Court of Canada in Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 (CanLII), 356 D.L.R. (4th) 595; and British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 (CanLII), [2011] S.C.R. 422. [46] In Figliola, Human Rights Tribunal exercised its statutory discretion to dismiss complaint that had been appropriately dealt with elsewhere. In Penner, civil law suit was allowed to proceed against police officers who had earlier been exonerated in police disciplinary proceedings. [47] Penner is the more recent of the two decisions. In that case, the majority of the court applied the traditional concept of issue estoppel i.e. doctrine designed to prevent the re-litigation of (1) the same question, (2) which has been decided by final judicial decision, and (3) involving the same parties or those who stand in their place subject always to the court’s overriding discretion not to apply the doctrine where it would be unfair or result in an injustice. The majority in Penner made it clear that issue estoppel applies not only to multiple court proceedings, but also to multiple administrative proceedings. Equally important, the majority emphasized the importance of adhering to the Legislature’s choice of an administrative body to deal with the issues so as to prevent them from being re-litigated again in another forum. [48] The CÉF argues that because its elected board of directors rejected Trystan Lawless’ appeal of his complaint that he was discriminated against in violation of ss. 12(1) and 13(1) of the Code, and because that decision was never set aside by way of judicial review, the doctrine of issue estoppel precludes him from “relitigating” the issue in court. [49] In my view, that argument is untenable. Counsel for the CÉF did not identify any provisions in The Education Act empowering the elected members of the CÉF to sit in final appeal on any complaint, must less one that the CÉF had itself violated the provisions of the Code. [50] Moreover, in Penner the Supreme Court of Canada made it clear (at paras. 66-68) that the identity of the decision maker in the previous proceeding may make it unfair to preclude subsequent proceeding: 66 Applying issue estoppel against the complainant here had the effect of permitting the Chief of Police to become the judge of his own case, with the result that his designate's decision had the effect of exonerating the Chief and his police service from civil liability. In our view, applying issue estoppel here is serious affront to basic principles of fairness. 67 We emphasize that this unfairness does not reside in the Chief of Police carrying out his statutory duties. The parties accept that, given the statutory framework, there is no objection on fairness grounds to the role of the Chief and there is certainly no suggestion that he failed in any way to carry out his statutory duties. Further, no obvious unfairness arises if the disciplinary decision finds police misconduct, as this is decision against the interests of the Chief or the Police Services Board. The unfairness that concerns us only arises at the point that the Chief's (or his designate's) decision that there was no police misconduct in disciplinary context is used for the quite different purpose of exonerating him, by means of issue estoppel, from civil liability relating to the same matter. 68 Had the Court of Appeal been given the opportunity to fully consider the importance of these points, our view is that it would have seen that applying issue estoppel against the appellant in the circumstances of this case was fundamentally unfair. [51] conclude that it would be fundamentally unfair to find that the plaintiffs are estopped from pursuing their civil claim against the CÉF, simply because the CÉF has itself decided that it is not liable for the claim. (ii) The Complaint to the SHRC: Abuse of Process [52] The CEF argues that the plaintiffs’ claim for declaration that the CÉF violated ss. 12(1) and 13(1) of the Code should be struck as an abuse of process because it duplicates the plaintiffs’ complaint to the SHRC under the Code. will state my conclusion now: although do not agree that the claim should be struck, do accept that it should be stayed. The reason is that although recently enacted provisions of the Code confer jurisdiction on the court to deal with complaints of this kind, that jurisdiction is only engaged after the processes mandated by the Code have first been complied with. [53] will explain why have reached that conclusion. In Seneca College of Applied Arts and Technology v. Bhadauria, 1981 CanLII 29 (SCC), [1981] S.C.R. 181, 124 D.L.R. (3d) 193, the Supreme Court of Canada held that The Ontario Human Rights Code, R.S.O. 1970, c. 318 (the “Ontario Code”) implicitly foreclosed the creation of common law action for discrimination, and that claims for unlawful discrimination must be pursued exclusively under the Ontario Code. That decision has never been overruled. Since Seneca College, it has generally been accepted that common law actions are not available to address discrimination on prohibited grounds such as disability. See: Allen M. Linden Bruce Feldthusen, Canadian Tort Law, 9th ed. (Markham, ON: Butterworths, 2011) at p. 65. [54] The proposition that the only way to enforce the provisions of the Code is to follow the process set out in the Code itself has been consistently applied by courts in Saskatchewan. See: Battlefords and District Co-operative Ltd. v. Gibbs and Human Rights Commission (Sask.), (1994) 1994 CanLII 4550 (SK CA), 120 Sask. R. 166; 116 D.L.R. (4th) 109 (Sask. C.A.) per Jackson J.A., at para. 48; Yorkton Union Hospital v. Saskatchewan Union of Nurses, 1993 CanLII 6637 (SK CA), [1993] W.W.R. 129, 109 Sask 198 (Sask. C.A.) per Sherstobitoff J.A. at para. 76; Ingold v. Rural Municipality of Wheatlands No. 163, 2004 SKQB 178 (CanLII), 251 Sask.R. 75 per Matheson J. at para. 44. In Cadillac Fairview Corp. v. Saskatchewan (Board of Inquiry), 1999 CanLII 12358 (SK CA), [1999] W.W.R. 517, 177 Sask. R. 126 (Sask. C.A.), Vancise J.A. stated at para. 32 ... It has long been established that human rights codes foreclose any cause of action at common law for violation of the fundamental principles which are guaranteed by the Code and that the only method of enforcement of the substantive rights based upon breach of the provisions of the Code is the complaint procedure section in the Code itself. Any action in the courts based on public policy was also foreclosed. [55] Since there can be no action at common law to address alleged violations of the Code, the court’s jurisdiction must be found created by statute, i.e. by the Code itself. Recently enacted provisions of the Code state that the court’s authority to hear and determine the underlying issues raised by complaint to the SHRC arise upon an application for hearing to be made by the SHRC’s Chief Commissioner pursuant to s. 29.6 of the Code. [56] The relevant provisions are as follows. Section 28(1) of the Code provides: 28(1) Where complaint is filed with or initiated by the commission, the Chief Commissioner shall, subject to subsection 27(5) and section 27.1, do one or more of the following: (a) attempt to resolve the complaint by mediation between the parties; (b) attempt to negotiate settlement of the complaint; (c) investigate the complaint; (d) continue an investigation of the complaint after an unsuccessful attempt to mediate or settle the matter. While s. 29.6(1) of the Code states: 29.6(1) At any time after complaint is filed or initiated pursuant to section 27, the Chief Commissioner may apply to the court for hearing of the complaint at the judicial centre nearest to the place where the subject‑matter of the complaint arose. (2) If the Chief Commissioner applies for hearing pursuant to subsection (1), the Chief Commissioner shall serve the person against whom the complaint was made with copy of the application. And, ss. 29.7(1), (2) and (3) state: 29.7(1) Subject to subsection (2), on the receipt of an application for hearing pursuant to subsection 29.6(1), the court shall fix date, time and place for the hearing. (2) Before setting hearing date, the court may direct the parties to participate in pre‑hearing conference. (3) Except where modified by this Act, The Queen’s Bench Rules apply to hearing pursuant to this section. [57] These provisions demonstrate the legislature’s intention that complaints of discrimination under the Code are to be made in the first instance to the SHRC, with the court’s jurisdiction arising after the complaint has been investigated by the SHRC and there has been an attempt to mediate or settle the matter. [58] In summary, by conferring authority on the court to hear complaints alleging violations of the Code, while at the same time requiring those complaints to be made in the first instance to the SHRC, the Legislature has provided the court with statutory authority to do what Seneca College determined it could not do at common law. That said, the court’s jurisdiction is not an alternative to, nor substitute for, the process set out in the Code for addressing those complaints. To put it another way, it does not allow those who would prefer to circumvent the entire process mandated by the Code to do so by commencing an action by statement of claim in court. [59] The plaintiffs submit that the court is authorized to grant the declarations they seek by ss. 38(3) and (3.1) of the Code, which state: (3) The commission or any person may, by statement of claim, commence an action in the court against any person for an injunction to restrain the person: (a) from depriving, abridging or otherwise restricting or attempting to deprive, abridge or restrict person or class of persons in the enjoyment of right pursuant to this Act or any other Act administered by the commission; or (b) from contravening or attempting to contravene any provision of this Act or any other Act administered by the commission. {emphasis added) (3.1) In an action pursuant to subsection (3), the judge may make any order that the judge considers fit. (Emphasis added) [60] In my view, Section 38(3) of the Code is not intended to confer an original jurisdiction on the court to hear and determine underlying issues in human rights complaints as an alternative to, or in manner that would bypass, the Code’s other provisions for initiating, investigating and attempting to settle those complaints. Until those processes are followed and an application to the court is made pursuant to s. 26.9 of the Code, the court’s jurisdiction does not arise. In the interim, s. 38(3) of the Code confines the court’s jurisdiction to granting injunctive relief in appropriate circumstances. [61] will add what may be self-evident. An applicant seeking injunctive relief under s. 38(3) of the Code must satisfy the established criteria for the granting of that relief. One of those criteria involves preliminary assessment of the merits to determine if there is serious issue to be tried. There are, of course, other criteria. In this case, for the reasons to be given in moment, the plaintiffs did not meet those criteria. [62] turn now to the plaintiffs’ claim that Kayleigh, Aydan, Kenzy, and Rylan Lawless are “effectively collateral damage of the attack on Trystan” claim that is also connected to the request (at para. 135(b) of the statement of claim) for declaration that the CÉF unreasonably withheld its “permission to attend” under s. 144 of The Education Act. In my view, that claim cannot succeed unless Trystan Lawless establishes that his rights under ss. 12(1) and 13(1) of the Code were violated. [63] Counsel for the CÉF, Mr. Lepage, advances the general argument that these claims should be struck because the CÉF has complete and unfettered discretion to grant or deny any non-rights holder permission to attend French language school under s. 144 of The Education Act, and further, that the manner in which it exercises its discretion is not reviewable by court or administrative body. He argues that the CÉF’s discretion to grant or withhold permission for non-rights holders to attend the Fransaskois school system is not subject to review because it is derived from The Minority Language Educational Rights set forth in s. 23 of the Charter. [64] As stated by Mr. Lepage in his written submission: 39. The CEF therefore submits to this Court that there is no cause of action relating to the admission of non-rights holders because even if the Court or the Commission finds that there is discrimination under the Code, the remedies claimed by the Plaintiffs are not available to them. All the more so because this Court or the Commission do not have the authority to order the admission of non-rights holders to the Fransaskois school system. [65] accept that s. 144 of The Education Act confers broad discretion on the CÉF to decide whether child of non-rights holder will be granted permission to attend school in the Fransaskois school system. also accept that the CÉF’s authority is rooted in s. 23 of the Charter. But, do not accept that the CÉF may exercise its discretion under s. 144 of The Education Act in manner that infringes upon other protected fundamental rights and freedoms. [66] Section 15 of the Charter states: 15.(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. [67] Certain provisions of The Education Act and the Code are rooted in s. 15 of the Charter. This includes s. 178 of The Education Act, which obligates boards of education and conseils scolaire to provide educational services to pupils consistent with the pupil’s intensive needs. It also includes s. 13 of the Code (see para. 44 above) which confers right to an education on any person without discrimination on prohibited ground other than age. Subsections (m.01), (d.1) and (i.1) of the Code collectively make it clear that “prohibited ground” includes any degree of physical, mental or intellectual disability or impairment. [68] Having regard to all of these provisions, reject the argument that the CÉF has an unfettered discretion to deny admission to students under s. 144 of The Education Act for whatever reason it chooses if those reasons infringe upon disabled student’s Charter protected rights and the CÉF’s own obligations under The Education Act and the Code. also reject the argument the CÉF is exempt from judicial and/or SHRC oversight in its obligations to comply with the requirements of the Charter, the Code and The Education Act. [69] That said, conclude that the claim being advanced by Kayleigh, Ayden, Kenzy and Rylan Lawless cannot proceed independently from the claim being advanced by Trystan Lawless for declaration this his rights under the Code were violated. The allegation that the four children were “collateral damage”, while not clarified in the statement of claim, appears to mean that the remedy they seek is derived from, and depends for its success upon, the granting of that declaration. Since Trystan Lawless’ claim for declaration must be stayed, it follows that the four children’s claim of “collateral damage” must be stayed as well. [70] What is the end result of this analysis? To summarize: (1) the underlying issues raised by the plaintiffs’ claim for declaration determining that their rights under ss. 12(1) and 13(1) of the Code were violated are complaints that must be addressed by following the processes set out in the Code itself; (2) the court’s jurisdiction to hear and determine those issues must be conferred upon it by statute; (3) the Code confers jurisdiction on the court to hear complaint following an application by the Chief Commissioner pursuant to s. 26.9(2) of the Code; and (4) until that application is made, the plaintiffs’ claim for declaration must be stayed, with the court’s jurisdiction confined to granting injunctive relief under s. 38(3) of the Code. [71] For all of the above reasons, the plaintiffs’ claims for a declaration that the CÉF violated ss. 12(1) and 13(1) of the Code will be stayed on the basis that the underlying issues may only be heard by the court upon an application by the Chief Commissioner of the SHRC pursuant to s. 29.6 of the Code. Second Claim [72] The plaintiffs’ second claim is that the CÉF interfered with the work of Trystan Lawless’ service dog Tank. They seek a declaration that the CÉF contravened s. 23.2(1) of The Animal Protection Act, 1999, by interfering with the use of a service animal. The essence of their claim is that if the CÉF were to be charged and convicted of the offence set out in ss. 23.2(1), it would be liable to compensate the plaintiffs for the loss of the service dog. The claim will be struck for the reasons set out below. [73] Sections 23.2 and 23.3 of The Animal Protection Act, 1999 provide: 23.2(1) No person shall harm, attempt to harm, touch, feed, impede or interfere with service animal without lawful excuse or authority. (2) No person responsible for an animal shall allow that animal to harm, attempt to harm, touch, impede or interfere with service animal without lawful excuse or authority. 23.3(1) person who contravenes section 23.2 is guilty of an offence and liable on summary conviction to fine of not more than $25,000, to imprisonment for not more than two years or to both. (2) In addition to any penalty imposed pursuant to subsection (1), the court may order the convicted person to pay compensation to the person responsible for the service animal for loss or damage suffered as consequence of the commission of the offence, in an amount that the court may determine. (3) The person to whom compensation is payable pursuant to subsection (2) may file certified copy of the order in the office of the local registrar of the Court of Queen’s Bench at the judicial centre nearest to the place where the person resides. (4) certified copy filed pursuant to subsection (3) has the same force and effect as if it were judgment obtained in the Court of Queen’s Bench for the recovery of debt in the amount specified in the order, together with any reasonable costs and charges with respect to its filing. [74] Subsection 23.2(1) of The Animal Protection Act, 1999 enacts summary conviction offence to be tried in Provincial Court. Even though the CÉF has never been charged, much less convicted, of that offence, the plaintiffs seek declaration that it is guilty. That declaration would presumably be based on the civil standard of proof by balance of probabilities, while if the CÉF has been charged, the standard would be proof beyond reasonable doubt. The plaintiffs cannot circumvent the provisions of The Animal Protection Act, 1999, nor eliminate the CÉF’s right to be charged and tried in Provincial Court, through the expediency of claiming declaration in civil action. The claim will be struck pursuant to Queen’s Bench Rules 7-9 (2)(a) and (e). Third Claim [75] The plaintiffs’ claim that the CÉF negligently allowed other students to interact with Tank so as to compromise his ability to act as service dog. They seek unspecified special damages for out-of-pocket expenses incurred, notwithstanding that compensation might otherwise be payable pursuant to s. 23.3(2) of The Animal Protection Act, 1999. [76] Nothing in the submissions by counsel for the CÉF mention or, as far as can determine, relate to this claim. Assuming the facts as plead are true, the claim is viable one. It is based on the common law tort of negligence. It seeks damages caused by that negligence. It does not duplicate any claim made to the SHRC under the Code, nor is it conditional on provincial court determination that the CÉF is guilty of an offence under ss. 23.2(1) of The Animal Protection Act, 1999. For these reasons, the claim will not be struck pursuant to Rules 7-9 (2) (a) or (e) of The Queen’s Bench Rules. Fourth Claim [77] The plaintiffs’ claim that the CÉF “intentionally inflicted emotional and mental suffering on Trystan Lawless”. Although the claim is not well drafted, the allegation would appear to be connected to the plaintiffs’ request for declaration that the CÉF discriminated against him by “engaging in harassing and intimidating behavior” and “unlawfully imposing disciplinary sanctions including but not limited to extended suspensions”. It also appears to be connected to the plaintiffs’ claim for general damages. [78] The above claim appears to be based on the long recognized tort of intentional infliction of mental suffering. The key requirements for establishing that tort are (1) flagrant conduct; (2) calculated to produce harm; and (3) resulting in visible and provable harm (See: G.H.L. Fridman, The Law of Torts in Canada, 3rd ed. (Toronto: Carswell, 2010) at p. 69; Canadian Tort Law, supra, at p. 55 and cases cited therein). [79] Counsel for the CÉF did not advance any reasons why this claim should be struck. Accepting the facts as plead, it is not sufficiently plain and obvious that it cannot succeed. It is substantively different from the plaintiffs’ claim of discrimination by reason of disability under the Code. Accordingly it will not be struck pursuant to either Rule 7-9 (2) (a) or 7-9 (2) (e). If it chooses to do so, the CÉF may apply for summary judgment in respect of this claim pursuant to Rule 7-2 of The Queen’s Bench Rules. II. THE APPLICATION FOR AN INTERLOCUTORY INJUNCTION [80] The plaintiffs applied for an interlocutory injunction that, had it been granted, would have required the CÉF to permit the plaintiffs to attend École de Bellegarde until further order of this Court. Before explaining my specific reasons for dismissing that application, will summarize the submissions of the parties and review the law as it relates to the granting of interlocutory injunctive relief. (i) The Submissions of the Parties [81] Counsel for the Lawless family submitted that the facts as pled in the statement of claim disclose serious issue to be tried. He argued that unless the court issued an interlocutory injunction requiring the CÉF to admit the Lawless children to École de Bellegarde, they would suffer irreparable harm because they would be deprived of an opportunity to learn in French language only environment. On the issue of balance of convenience, he argued that requiring the CÉF to re-establish the services necessary to educate the Lawless children would amount to nothing more than the “preliminary inconvenience of operating publicly funded education system.” [82] Counsel for CÉF submitted that the plaintiffs had not satisfied any of the requirements for the granting of an interlocutory injunction which are (i) that there is serious issue to be tried; (ii) that they will suffer irreparable harm if the injunction is not granted; and (iii) that the balance of convenience weighs in favor of granting the order. [83] The court’s authority to grant an interlocutory injunction is found in s. 65 of The Queen’s Bench Act, 1998, S.S. 1998, c. Q-1.01 which states: 65(1) judge may, on an interlocutory application, grant mandamus or an injunction or appoint receiver where it appears to the judge to be appropriate or convenient that the order should be made. (2) An order pursuant to subsection (1) may be made unconditionally or on any terms and conditions that the judge considers appropriate. (3) If an injunction is sought, whether before, at or after the hearing of an action or matter, to prevent any threatened or apprehended waste or trespass, judge may grant the injunction: (a) whether the person against whom the injunction is sought: (i) is or is not in possession under any claim of title or otherwise; or (ii) if not in possession, does or does not claim right to do the act sought to be restrained under any colour of title; and (b) whether the estates claimed by any of the parties are legal or equitable. [84] In RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] S.C.R. 311, 111 D.L.R. (4th) 385, the Supreme Court of Canada dealt with the approach to be taken in granting an interlocutory injunction, stating at p. 334 (h-i): ...First, preliminary assessment must be made of the merits of the case to ensure that there is serious question to be tried. Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused. Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending decision on the merits. [85] In Potash Corp. of Saskatchewan Inc. v. Mosaic Potash Esterhazy Limited Partnership, 2011 SKCA 120 (CanLII), 377 Sask.R. 78, the Saskatchewan Court of Appeal dealt with these requirements by stating at para. 113 In the interest of clarity, it may be useful to recapitulate the basic points which have been developed in the course of these reasons and to summarize the approach judge should typically take when deciding whether to grant interlocutory injunctive relief. This can be done as follows: (a) The judge should normally begin with preliminary consideration of the strength of the plaintiff's case. The general rule in this regard is that the plaintiff must demonstrate serious issue to be tried, i.e. the plaintiff must have claim which is not frivolous or vexatious. If the plaintiff raises serious issue to be tried, it is necessary for the judge to turn to the matters of irreparable harm and balance of convenience. (b) Irreparable harm is best seen as an aspect of the balance of convenience. The general rule here is that the plaintiff must establish at least meaningful doubt as to whether the loss he or she might suffer before trial if an injunction is not granted can be compensated for, or adequately compensated for, in damages. Put another way, the plaintiff must demonstrate meaningful risk of irreparable harm. If this is done, the analysis turns to the balance of convenience proper. (c) The assessment of the balance of convenience is usually the core of the analysis. In this regard, the relative strength of the plaintiff's case, the relative likelihood of irreparable harm, and the likely amount and nature of such harm will typically all be relevant considerations. Depending on the particulars of the case, strength in relation to one of these matters might compensate for weakness in another. Centrally, the judge must weigh the risk of the irreparable harm the plaintiff is likely to suffer before trial if the injunction is not granted, and he or she succeeds at trial, against the risk of the irreparable harm the defendant is likely to suffer if the injunction is granted and he or she prevails at trial. That said, the balance of convenience analysis is compendious. It can accommodate range of equitable and other considerations. (d) The judge's ultimate focus in considering whether to grant interlocutory injunctive relief must be on the overall equities and justice of the situation at hand. (iii) Reasons for Decision [86] I turn now to my specific reasons for dismissing the plaintiffs’ application for an interlocutory injunction ordering the CÉF to admit the plaintiffs to École de Bellegarde. They may be briefly stated at the outset as: 1. The plaintiffs’ claims that have not been struck or stayed are not rationally connected to the granting of an interlocutory injunction requiring the CÉF to admit the plaintiffs to École de Bellegarde. 2. Even assuming that the remaining claims present a serious issue to be tried, they do not justify a finding that the plaintiffs will suffer irreparable harm if the injunction is refused. 3. The balance of convenience weighs against the granting of an interlocutory injunction. This includes concerns about the court’s ability to craft clear and specific mandatory order with respect to Trystan Lawless that would be amenable to effective judicial supervision on an ongoing basis. will comment further on each of these reasons: 1. The plaintiffs remaining claims are not rationally connected to the interlocutory injunction they seek. [87] The only claims that have not been struck out or stayed are: (1) claim for special damages arising from the CÉF’s alleged negligent interference with Trystan Lawless’ service dog Tank; and (2) claim for general damages arising from the alleged intentional infliction of emotional suffering on Trystan Lawless. Neither claim is rationally connected to the granting of an order requiring the CÉF to re-admit some or all of the Lawless children to École de Bellegarde. They are stand alone claims which seek monetary damages as remedy. 2. The plaintiffs have not demonstrated irreparable harm. [88] Again, the only two claims that have not been struck are for monetary damages. One relates to the claim for special damages for negligently allowing other students to interact with Tank, in the result compromising his ability to act as service dog. The other is Trystan Lawless’ claim for general damages for the intentional infliction of mental suffering. The claims as pled indicate that monetary damages will constitute an adequate remedy. [89] Quite apart from the pleadings, the facts do not demonstrate that an injunction will be necessary to prevent irreparable harm. Khristina Lawless may feel aggrieved at what she perceives to be the CÉF’s harassment of her son, Trystan, and its failure to accommodate his special needs, including his service dog, Tank. However, Trystan and his siblings are all attending their former English language school in their home community of Maryfield. Their family culture and heritage is English. cannot conclude that they will suffer irreparable harm if the CÉF is not immediately ordered by the court to permit them to resume their attendance at Fransaskois school. More specifically, the evidence does not demonstrate that Trystan Lawless, 16 year old with an English only background and special educational needs who has struggled to cope in French language only environment, will suffer irreparable harm unless he is placed back into that same environment. [90] In my view, all of the Lawless children are in the same situation as any other child of English speaking background who attends an English language, or French immersion school. This is not case in which the plaintiffs seek an injunction to enforce Charter protected language rights: it is acknowledged that they are not rights holders under s. 23 of the Charter, and they make no claim based on the Charter. On the evidence before me, it would not be appropriate for an interim mandatory injunction to issue that would have the effect of immediately elevating the members of the Lawless family from non-rights holders to rights holders. 3. The balance of convenience weighs against granting the interlocutory injunction. [91] Counsel for the Lawless family submitted that an order requiring the CÉF to permit all of the Lawless children to attend École de Bellegarde would amount to nothing more than the “preliminary inconvenience of operating publicly funded education system”. That may be so with respect to Kayleigh, Ayden, Kenzy and Rylan Lawless but, in my respectful view, it is not so for Trystan Lawless. His special needs require substantial educational supports, not only within the school but within the broader community. The court has no capacity to order any third parties to work co-operatively with the CÉF to provide those supports. Moreover, given the acrimony between the parties, it seems probable that no matter what supports could be introduced for Trystan pending the trial of this action, the disagreements between Khristina Lawless and the CÉF as to their adequacy would be ongoing. [92] This leads to the question of whether any interlocutory order could be adequately supervised. As it relates to Trystan Lawless, am satisfied that it could not. [93] The court’s reluctance to make an order that will require further judicial direction or intervention is familiar theme, especially in mandatory injunction cases. In Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52 (CanLII), [2006] S.C.R. 612, Deschamps J., writing for the majority, noted the following: 24 Despite their flexibility and specificity, Canadian relief orders are fashioned following general guidelines. The terms of the order must be clear and specific. The party needs to know exactly what has to be done to comply with the order. Also, the courts do not usually watch over or supervise performance. While the specificity requirement is linked to the claimant's ability to follow up non‑performance with contempt of court proceedings, supervision by the courts often means relitigation and the expenditure of judicial resources. This factor is discussed by R. J. Sharpe, in Injunctions and Specific Performance (2nd ed. (loose‑leaf)), at para. 7.480: From this perspective, the supervision concern differs from other criteria determining the availability of specific relief. It is based not upon the weighing of relative advantage and disadvantage to the parties but rather on the weighing of the advantage of doing justice by granting specific relief against the general cost to society of having justice administered. By way of contrast to specific relief, damage awards do hold certain advantages. money judgment is final and enforcement is left to the administrative rather than the judicial machinery of the court. The cost of enforcement is largely borne by the parties. decree for specific performance does involve substantially higher risk that further judicial resources will be required. The more complex or extended the performance, the more likely further proceedings will be needed to ascertain whether the defendant has complied with his or her obligations. This fear of extended and complex litigation and the need for repeated requests for judicial intervention may be seen as legitimate concern. The cost to society of providing the resources necessary to implement specific performance decrees is properly considered by the court when weighing the advantages the specific relief might otherwise offer. [94] For all of these reasons, the plaintiffs application for an interlocutory injunction was dismissed. CONCLUSION [95] With respect to the defendant’s application for an order striking out the plaintiffs’ claim:1. The plaintiffs’ claims for a declaration that the CÉF has violated their rights under ss. 12(1) and 13(1) of The Saskatchewan Human Rights Code, both directly and as “collateral damage”, are stayed pending an application to the court pursuant to s. 29.6 of the Code. 2. The plaintiffs’ claim that the defendant has violated ss. 23.2(1) of The Animal Protection Act, 1999 is struck out. 3. The CÉF’s application for an order striking out the plaintiffs’ claim for special damages arising from alleged negligence in relation to the service dog, Tank, is dismissed; and 4. The CÉF’s application for an order striking out the claim for damages arising from alleged “intentional infliction of emotional and mental suffering” on Trystan Lawless is dismissed; [96] The hearing of this application and the material filed in support was in both French and English. In view of the need to expedite this decision, it has been released in the English language only. translation of this judgment in the French language will be provided in due course. [97] Counsel may speak to the issue of costs if they are so advised.

Civil Procedure Injunction HELD: The first portion of the statement of claim is an attempt by the plaintiff to have the Court take jurisdiction over a matter that is already before the Saskatchewan Human Rights Tribunal. While the court has jurisdiction to hear human rights complaints, the jurisdiction only arises after the tribunal process has been exhausted. Since the tribunal procedure has not been completed, the portions of the statement of claim dealing with the human rights complaint are stayed on the basis that the underlying issues may only be heard by the court upon application of the Chief Commissioner of the Saskatchewan Human Rights Code pursuant to s. 29.6 of the Code. With respect to the claim that the defendant breached The Animal Protection Act, the essence of the claim is to seek damages against the plaintiff for the loss of the service dog. That portion of the claim must be struck because the plaintiffs cannot circumvent the provisions of The Animal Protection Act, 1999 nor eliminate the defendant’s right to be charged and tried in Provincial Court through the expediency of claiming a declaration in a civil suit. The third claim is that the defendant was negligent in allowing other children to interact with the service dog will not be struck because, assuming the facts in the pleadings are true, the claim for damages is viable. Likewise, the fourth claim that the defendant intentionally inflicted mental and emotional suffering on the autistic plaintiff will not be struck as is not plain and obvious from the pleadings that the claim cannot succeed. The plaintiffs’ application for an interlocutory injunction was dismissed because the claims that have not been struck are not rationally connected to the injunction, even assuming the remaining claims present a serious issue to be tried they do not justify a finding that the plaintiffs will suffer irreparable harm if the injunction is refused and the balance of convenience weighs in favour of not granting an injunction.

e_2014skqb23.txt

J. F.L.D. A.D. 2000 No. 467 J.C. S. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SASKATOON RESPONDENT Jacqueline Lane for the petitioner Brendan W. Pyle for the respondent JUDGMENT R. S. SMITH J. June 4, 2003 [1] The parties have three children aged four to eight years. On December 13, 2002 an order issued directing that the respondent father pay child support in the amount of $454.00 per month. [2] Since the issuance of the order the respondent has been, for the most part, unemployed by reason of health problems and, as a result, arrears of child support are constantly accruing. [3] The respondent is involved in litigation against the Government of Canada wherein he seeks damages for abuse he allegedly suffered while attending an Indian Residential School. Affidavits indicate that examinations for discovery are complete but the respondent’s solicitor handling that claim advises no offer to settle has been received. [4] The petitioner brings an application seeking an order that: (a) the Respondent, [M.E.H.], and his counsel are required to report to the Court forthwith as to the potential [sic] are required to advise the Court within three days of the lawsuit involving the Respondent’s claim for his time at Gordon’s residential within three days of the said lawsuit being settled; (b) the Respondent, [M.E.H.], is hereby restrained from disposing of any money that he has received or may receive in relation to the lawsuit without further Order of the Court with the exception of paying any and all legal fees and disbursements plus taxes owing to his solicitors. [5] The petitioner bases her application on the ground that if the respondent receives damages from the Government of Canada that may well be his only significant asset and, more to the point, the only asset that can be used to meet the respondent’s outstanding and ever accruing child support obligations. [6] An identical application was thoughtfully canvassed by Pritchard J. in Anderson v. Anderson (1999), 1999 CanLII 12597 (SK QB), 184 Sask. R. 125 (Q.B.). [7] In Anderson, as in this application, the section relied upon by the petitioner is s. of The Family Maintenance Act, 1997, S.S. 1997, c. F-6.2 (the “Act”). Section provides: 8(1) On application by claimant, the Court of Queen’s Bench may make an interim or final order restraining the disposition or wasting of assets that would impair or defeat claim pursuant to this Act. The court concluded in Anderson that it was not necessary to find predilection or intention on the part of the respondent to waste assets in order to issue an order under s. 8. The threshold to be met in such an application was simply that the disposition or wasting of the asset would impair or defeat claim under the Act. Pritchard J. opines at para. 11 of Anderson: [11] When respondent has only one asset that could reasonably become source of satisfying claim under the Act, not only his or her dependants, but society as whole has an interest in ensuring that the asset will be used first and foremost for such purpose. If the asset is not available for claim under the Act, then it is society who will inevitably assume respondent’s responsibility for his or her dependants.... [8] Following that analysis, Pritchard J. then granted an order restraining the first $40,000.00 of the funds to be received by the respondent. In Anderson the court concluded s. of the Act only authorizes restraining orders against those against whom claim under the Act may be made and therefore made no order vis-a-vis the respondent’s counsel. [9] In this matter the solicitor for the respondent asserts that Anderson is wrongly decided. Counsel for the respondent argues that the order in Anderson was made against money but money did not exist at the time of the order. At the time the order issued there was only cause of action or chose in action. The respondent asserts that the only order that could be made with respect to chose in action is that it not be assigned by the respondent. [10] I must respectfully reject the respondent’s analysis and confirm that I am in full accord with the conclusion in Anderson that an order can be made with respect to damage awards even though, at the moment of the order, there is only a cause of action in existence and no precise amount of damages are known. [11] There is no question that a cause of action or chose in action is property and thus the subject of an order of s. 8 of the Act. It is of no consequence that the order may direct itself to the property when it takes another form i.e., money. To adopt any different analysis would be to unnecessarily limit the remedial application of s. 8. [12] The respondent takes exception to the petitioner’s request that there also be an order requiring him to give notice to the petitioner as to when the respondent’s claim is settled. The respondent grounds his objection that s. provides no authority to order the respondent, let alone third party, to report to the petitioner any sort of information. [13] am of the opinion that the respondent’s position is unreasonably narrow. The purpose of s. is to ensure that property is not wasted and thus impair or defeat claim under the Act. Given that overarching purpose it is only logical that orders can be made by the Court that are ancillary or natural incident of the primary order preserving the property. Such orders can involve third parties being required to take certain steps if they are inextricably linked to the property being preserved. [14] In short, it is not offensive to direct that the respondent’s counsel, at the time of such settlement, if there is such settlement, pay monies into Court. Such an order does not impact the rights of the respondent’s counsel but merely imposes clerical task which is natural incident to the preservation of the asset in debate. [15] Accordingly, it is ordered that in the event the respondent receives a settlement in his law suit against the Government based on his claim of abuse suffered at the Indian Residential School, the first $50,000.00, after payment of reasonable solicitor fees and disbursements, shall be paid into Court so that the parties might speak to the distribution of same. It is further ordered that the respondent’s counsel, the Merchant Law Group or any new counsel shall pay the settlement proceeds into Court, in accordance with the foregoing. [16] The petitioner shall have her costs of this application which set at $350.00.

The father was unemployed by reason of health problems and was in arrears on the December 13, 2002 child support order for $454 per month. He was seeking damages against the federal government for alleged abuses suffered while attending an Indian Residential School. The mother sought to attach the possible damage award for child support. HELD: The first $50,000 of any settlement proceeds, after payment of reasonable solicitor fees and disbursements, shall be paid into Court by his counsel. The Court agreed with the conclusion in Anderson that an order can be made with respect to damage awards even though, at the moment of the order, there is only a cause of action in existence and no precise amount of damages are known. There was no question that a cause of action or chose in action is property and thus the subject of an order under the Family Maintenance Act s.8. It is of no consequence that the order may be in another form such as money. To adopt any different analysis would be to unnecessarily limit the remedial application of s.8. Given the overarching purpose to ensure property is not wasted, thus impairing or defeating a claim under the FMA, it was logical orders can be made by the Court that are ancillary or a natural incident of the primary order preserving the property. The mother was awarded costs of the application set at $350.

7_2003skqb255.txt

2002 SKQB 131 Q.B.A. A.D. 2001 No. 15 J.C.B. IN THE COURT OF QUEEN’S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF BATTLEFORD BETWEEN: HER MAJESTY THE QUEEN and DENNIS HAROLD FAULKNER RESPONDENT Michel Piche for the appellant (Crown) R. J. Smith for the respondent JUDGMENT April 8, 2002 KRUEGER J. [1] This summary conviction appeal by the Crown was brought when the trial judge dismissed charges of impaired driving and driving with a blood alcohol level exceeding .08 percent. The trial judge held that the circumstances supported special plea of “autrefois acquit” and that the manner of proceeding by the Crown was an abuse of process at common law. [2] No hearing was conducted, but the facts were agreed to by counsel. On December 29, 2000, the respondent was driving on highway number 17 in Lloydminster. That highway runs in north/south direction on the Saskatchewan side of the border between Saskatchewan and Alberta. Police from the Kitscoty detachment of the R.C.M.P. investigated and charged the respondent with the drinking and driving offences. He was issued an Appearance Notice (Recognizance) requiring his attendance in Lloydminster, Alberta, Provincial Court on February 6, 2001. An information charging the two offences was sworn on January 19, 2001, but was not available in the Alberta court when the respondent appeared. Nothing happened. [3] On February 8, 2001, an Alberta prosecutor wrote to the R.C.M.P. in Lloydminster, Saskatchewan, suggesting that the same two charges against the respondent be “re-laid” in Saskatchewan. An information was sworn in Saskatchewan on March 1, 2001, and brought before the Provincial Court in Lloydminster, Saskatchewan, on March 5, 2001. The respondent had not been summonsed and was not present on that date. Again nothing happened. [4] second Saskatchewan information charging the same offences was sworn on March 29, 2001. The respondent was summonsed to appear and did appear with counsel on May 7, 2001. At that time special plea of autrefois acquit was entered and the matter was adjourned for hearing. On September 20, 2001, after hearing from both counsel the provincial court judge accepted the special plea and dismissed the charges. He went on to state that the procedure adopted by the Crown also amounted to an abuse of process. [5] The Crown now appeals on the following grounds: 1. The learned trial judge erred in law in finding that the court had lost jurisdiction as he specifically found that if there was loss of jurisdiction it was over the offence, but in dismissing the Information he relied on the provisions of s. 485(2) of the Criminal Code which relate to loss of jurisdiction over the accused and not the offence; 2. The learned trial judge erred in law in finding that the court had lost jurisdiction under the provisions of s. 485(2) of the Criminal Code as the record is clear that Justice had issued summons within three months of the loss of jurisdiction, so that jurisdiction over the accused had been maintained; and 3. The learned trial judge erred in law in finding that the Information should be dismissed for an abuse of process as no abuse of process at law had occurred in these circumstances. ISSUES [6] The issues before the Court are:1) Was jurisdiction of the court lost in Alberta? (2) If jurisdiction was lost in Alberta did it give rise to a plea of autrefois acquit in Saskatchewan? (3) Apart from any loss of jurisdiction did the police procedure adopted amount to an abuse of process at common law? [7] The relevant portions of the Criminal Code are as follows: S. 476 For the purposes of this Act,... (b) where an offence is committed on the boundary of two or more territorial divisions or within five hundred metres of any such boundary, or the offence was commenced within one territorial division and completed within another, the offence shall be deemed to have been committed in any of the territorial divisions; S. 485 (1) Procedural Irregularities Jurisdiction over an offence is not lost by reason of the failure of any court, judge, provincial court judge or justice to act in the exercise of that jurisdiction at any particular time, or by reason of failure to comply with any of the provisions of this Act respecting adjournments or remands. (1.1) Where accused not present Jurisdiction over an accused is not lost by reason of the failure of the accused to appear personally, so long as paragraph 537(1)(j) or subsection 650(1.1) applies and the accused is to appear by counsel. (2) Summons or warrant Where jurisdiction over an accused or defendant is lost and has not been regained, court, judge, provincial court judge or justice may, within three months after the loss of jurisdiction, issue summons, or if it or he considers it necessary in the public interest, warrant for the arrest of the accused or defendant. (3) Dismissal for want of prosecution Where no summons or warrant is issued under subsection (2) within the period provided therein, the proceedings shall be deemed to be dismissed for want of prosecution and shall not be recommenced except in accordance with section 485.1. (4) Adjournment and order Where, in the opinion of the court, judge, provincial court judge or justice, an accused or defendant who appears at proceeding has been misled or prejudiced by reason of any matter referred to in subsection (1), the court, judge, provincial court judge or justice may adjourn the proceeding and may make such order as it or he considers appropriate. (5) Part XVI to apply The provisions of Part XVI apply with such modifications as the circumstances require where summons or warrant is issued under subsection (2). S. 485.1 Recommencement where dismissal for want of prosecution Where an indictment in respect of transaction is dismissed or deemed by any provision of this Act to be dismissed for want of prosecution, new information shall not be laid and new indictment shall not be preferred before any court in respect of the same transaction without (a) the personal consent in writing of the Attorney General or Deputy Attorney General, in any prosecution conducted by the Attorney General or in which the Attorney General intervenes; or (b) the written order of judge of that court, in any prosecution conducted by prosecutor other than the Attorney General and in which the Attorney General does not intervene. [Emphasis added] REVIEW Loss of Jurisdiction [8] The Crown position is that the special plea of autrefois acquit cannot be maintained because the respondent was never in jeopardy in Alberta. The Saskatchewan court did not lose jurisdiction over the offence(s) when nothing happened on March 5, 2001, and the subsequent appearance on May 7, 2001, (within three months) regained any lost jurisdiction over the person. Further, even if jurisdiction over the person was lost in Alberta, that jurisdiction was regained, according to the Crown, when the respondent attended court in Saskatchewan on May 7, 2001, as result of summons that must have issued within three months of February 6, 2001 (date of loss of jurisdiction in Alberta). [9] The respondent argued that because the Alberta court did not have before it an information on February 6, 2001, it lost jurisdiction over the respondent on that date. By the time the respondent appeared in court in Saskatchewan (May 7, 2001) the charges in Alberta were already deemed to have been dismissed for want of prosecution. That, it was suggested, justified the special plea of autrefois acquit. Alternatively, the respondent says the procedure in the circumstances of this case amounted to an abuse of process. judicial stay is justified. [10] The trial judge in rendering his decision stated at page 23 of the transcript: Yeah. Well, agree with Mr. Smith on both of his arguments. Certainly, the Crown here has to be, in fairness to the accused, considered as one Crown. can’t have the Crown of Alberta and the Crown of Saskatchewan. It’s one Crown, the Crown. And according to the regime set up in the Criminal Code, when that three months goes by, after the loss, it’s deemed to have been dismissed for want of prosecution, and that’s certainly, in my view, squarely underpins the plea of autrefois acquit. [11] When the Alberta information was not available in the Alberta Provincial Court on February 6, 2001, the recognizance (Appearance Notice) not confirmed, and the matter not dealt with by the court, jurisdiction over the respondent was lost: R. v. McGinnis (1980), 1979 ABCA 322 (CanLII), 51 C.C.C. (2d) 301 (Alta. C.A.). The court could have regained jurisdiction by issuing summons or warrant within three months of February 6, 2001. It failed to issue summons until August 14, 2001. The information was by then deemed to have been dismissed for want of prosecution pursuant to s. 485(3). “Deemed” in s. 485(3) does not mean “presumed until otherwise proven”; it means that the information is dismissed without any action by the court. Once dismissed the proceeding could only be recommenced with the consent of the Attorney General or leave of the court. Alberta still had jurisdiction over the offence and could have proceeded, but new information could not be preferred before any court (in that province) in respect of the same offence without the consent of the Attorney General or leave of the court. No such consent or leave was obtained. The information remained dismissed for want of prosecution. Jurisdiction in Saskatchewan [12] Section 476(b) of the Code grants concurrent jurisdiction to any province in which the offence may have been committed or when committed within 500 metres of any province. The purpose of this section is to prevent charge from failing because of uncertainty as to the location where it occurred. See R. v. Moore (1970), 1970 CanLII 1037 (BC CA), C.C.C. (2d) 521 (B.C.C.A.). The section was not intended to permit simultaneous prosecutions in two provinces or in second province in the event of failure in the first. [13] I am unable to agree that appearance by the respondent in a Saskatchewan court as a result of a summons issued here before May 7, 2001, revived jurisdiction over the respondent in Alberta. The Alberta proceeding was deemed to have been dismissed for want of prosecution on May 6, 2001. [14] In R. v. Van Rassel (1990), 1990 CanLII 124 (SCC), 53 C.C.C. (3d) 353, the Supreme Court of Canada assumed, but did not find, that foreign acquittal may be basis for successful plea of autrefois acquit. If the Saskatchewan court had jurisdiction to proceed with the same charges that had been laid in Alberta, it did not lose jurisdiction over either the offence or the respondent. The special plea by the respondent was based solely on the deemed dismissal for want of prosecution in Alberta. Does that deemed dismissal support plea of autrefois acquit? [15] Special pleas of autrefois acquit result from an adjudication by the court that ends in an acquittal or dismissal on the merits. In those circumstances, the accused has been placed in jeopardy. See R. v. Hatherley (1971), 1971 CanLII 560 (ON CA), C.C.C. (2d) 242 at 243; R. v. Karpinski (1957), 1957 CanLII (SCC), S.C.R. 343. The only remedy left is an appeal. In Alberta the charges were deemed to be dismissed for want of prosecution. The court had not lost jurisdiction over the offence and could have regained jurisdiction over the person by following the procedure set out in s. 485.1 of the Code. The deemed dismissal did not preclude recommencing the proceedings in Alberta. [16] am of the view that dismissal for want of prosecution as provided for in s. 485(3) of the Code does not give rise to successful plea of autrefois acquit. The charges have not, in those circumstances, been disposed of by the court within the meaning of s. 730(3) of the Code. There has been no finding in respect of which an appeal can be taken. Section 485.1 permits the charges to be recommenced. No acquittal or dismissal on the merits has occurred. The special plea of autrefois acquit is not available in the circumstances of this case. Abuse of Process [17] Having found that the plea of autrefois acquit was successful defence to proceeding with the charges in Saskatchewan the trial judge nevertheless went on to rule on the common law abuse of process application. At pages 24 and 25 of the transcript he stated: also agree with him (respondent) that this prosecution would be abusive because he has suffered penalty in Alberta, and if he were to turn around and be convicted of this offence here in Saskatchewan, he would start all over again with differing levels of and different levels of administrative considerations. He’d start and be punished all over again from square one in the Province of Saskatchewan, not only from the Criminal Code, the minimal punishment set out there, but the administrative punishments that would flow from conviction like this in Saskatchewan, would start anew and fall on Mr. Faulkner, whatever they may be in all their details, driving prohibitions, provincial suspensions, et cetera, would fall upon him again in Saskatchewan, and he would effectively get hit twice for the same one offence, and thus the movement of it back and forth would be abusive under those circumstances. [18] The province of Alberta did not withdraw or abandon its charges. Effective January 21, 2001, Alberta suspended the respondent’s driving privileges for three months. That province requested S.G.I. to suspend the Saskatchewan driving privileges of the respondent pursuant to s. 78 (c) of The Vehicle Administration Act, S.S. 1986, c. V-2.1, and S.G.I. complied. [19] In addition for almost year the respondent was obliged to defend identical charges arising out of the same incident in two provinces. If convicted in Saskatchewan he will be subject to further administrative suspensions in addition to court sanctions. The cost and stress has been substantial. [20] The prosecutorial conduct of the police in proceeding simultaneously in two provinces amounted to an abuse of process. Not only was the respondent obliged to incur legal expenses defending both charges, he has been subjected to the possibility of administrative penalties in both provinces. Had the police in Alberta withdrawn or stayed the Alberta charges on February 8, 2001, when asking that charges be laid in Saskatchewan much of the expense and emotional trauma could have been avoided. [21] On the evidence before me am unable to conclude that the police in either province acted with malice or improper motive. The police did, however, act with an arbitrary purpose and without regard for the principles of fundamental justice. The lack of malice or improper motive does not preclude finding of abuse of process. See R. v. Keyowski, 1988 CanLII 74 (SCC), [1988] S.C.R. 657. This is one of those “clearest of cases” that justifies stay. CONCLUSION [22] The trial judge erred in finding that the special plea of autrefois acquit was applicable in this case. He was correct in concluding that the Alberta Provincial Court had lost jurisdiction over the respondent. Any reference by the trial judge to loss of jurisdiction over the offence was unintentional. Clearly the trial judge was referring to loss of jurisdiction as contained in s. 485(2) of the Code. His conclusion that the proceedings were abusive was in accordance with the information before him. The informations sworn on March 1, 2001, and March 29, 2001, in this proceeding are stayed.

The Crown appealed the dismissal of charges of impaired driving and driving with a blood alcohol level exceeding .08. The trial judge held the circumstances supported a special plea of autrefois acquit and that the manner of proceeding by the Crown was an abuse of process at common law. Alberta did not withdraw or abandon the charges and suspended his driving privileges for 3 months. Upon request, SGI also suspended his Saskatchewan driving privileges. At issue was whether the Alberta court lost jurisdiction; if so, whether that gave rise to a plea of autrefois acquit in Saskatchewan; apart from any loss of jurisdiction did the police procedure amount to an abuse of process at common law. HELD: The Informations were stayed. The trial judge erred in finding a plea of autrefois acquit was applicable but was correct in concluding Alberta lost jurisdiction. 1)The Information remained dismissed for want of prosecution. Jurisdiction over the respondent was lost when the information was not available in the Alberta Provincial Court, the appearance notice was not confirmed and the matter could not be dealt with (R. v. McGinnis). The Alberta court could have regained jurisdiction by issuing a summons or warrant within 3 months of February 6, 2001. A summons was not issued until August. The information was by then deemed to have been dismissed for want of prosecution pursuant to s.485(3). 'Deemed' in s.485(3) does not mean 'presumed until otherwise proven'. It means that the information is dismissed without any action by the court. Once dismissed the proceeding could only be recommenced with consent of the Attorney General or leave of the court, neither of which were obtained. 2)With respect to jurisdiction in Saskatchewan, s.476(b) grants concurrent jurisdiction to any province in which the offence may have been committed or committed within 500 metres of any province in order to prevent a charge from failing because of uncertainty as to location. The section was not intended to permit simultaneous prosecutions in two provinces or in a second province in the event of a failure in the first. 3)The respondent's appearance in a Saskatchewan courtroom as a result of a summons did not revive jurisdiction in Alberta. The Alberta proceeding was deemed to have been dismissed for want of prosecution on May 6, 2001. The charges have not been disposed of within the meaning of s.730(3). There was no finding in respect of which an appeal can be taken. The special plea of autrefois acquit is not available in these circumstances. 4)The prosecutorial conduct of the police in proceeding simultaneously in two provinces amounted to an abuse of process. The respondent was obliged to defend identical charges arising out of the same incident in two provinces for almost a year at substantial cost and stress. The police acted with arbitrary purpose and without regard for the principles of fundamental justice. The lack of malice or improper motive does not preclude a finding of abuse of process.

b_2002skqb131.txt

IN THE SUPREME COURT OF NOVA SCOTIA Citation: Wacky’s Carpet Floor Centre v. Joseph, 2006 NSSC 353 Date: 20061121 Docket: SH 263849A Registry: Halifax Between: Wacky’s Carpet Floor Centre v. Dr. Paul Joseph Judge: The Honourable Justice Frank C. Edwards Heard: November 21, 2006, in Halifax, Nova Scotia Written Decision: November 30, 2006 Counsel: James D. MacNeil, for the appellant John D. MacIsaac, Q.C., for the respondent By the Court: [Orally] [1] This is an appeal from a decision by an Adjudicator of the Small Claims Court. [2] During the construction of Dr. Paul Joseph’s (“Joseph”) home by Paul Jollymore (“Jollymore”) and his company Maritime Project Management Inc. (“Maritime”), Jollymore contracted for certain amount of flooring material from the Appellant (“Wacky’s”) for use in the home of Joseph. [3] Some of this flooring material had been selected by Joseph and his wife when they visited the Wacky’s store with Jollymore. There was, however, no direct contact between Wacky’s and Joseph or his wife, and the purchasing of all material was left up to Jollymore who dealt with Wacky’s flooring manager. The goods were invoiced to Maritime and delivered and installed in the Joseph’s home. [4] Cheques to pay for the construction process and the services of subcontractors were provided by Joseph primarily to Jollymore, but also to others on Jollymore’s instructions. Joseph signed cheques in blank, in the amount of $60,000.00, $100,000.00, $85,000.00, $100,000.00, $170,000.00 and $45,000.00. Other cheques and cash were paid out to various parties and total amount of approximately $638,600.00 were paid out by Joseph under the direction of Jollymore. [5] However, during the construction process, it became apparent that some of the subcontractors were not paid by Jollymore or Maritime and Joseph did not receive satisfactory explanation from Jollymore as to where the money went. [6] Wacky, one of the subcontractors, was not paid for flooring materials amounting to value of $18,601.55 that had been ordered from and provided by Wacky’s for Joseph’s home. Jollimore and Maritime declared bankruptcy and failed to complete their obligations under the oral contract with the Josephs. However, the flooring remained in the Joseph’s home, yet Wacky’s has not received compensation for the flooring. [7] Wacky’s commenced proceedings against Maritime, Jollymore and Joseph. As noted in Joseph’s brief, at trial the issues were: 1) did Wacky’s have contract with Maritime, Jollymore or Joseph; 2) were Jollymore or Maritime agents of Joseph; and was Joseph unjustly enriched by Wacky’s? [8] At the Small Claims trial heard January 17, 2006, Adjudicator David T. R. Parker held that there had been contract between Joseph and Maritime, however, there had not been contract between Wacky’s and Joseph. It was further held that there was no unjust enrichment because there did not exist special relationship between Wacky’s and Joseph. [9] Is the remedy of unjust enrichment available to Wacky’s? [10] The Supreme Court of Canada has determined that remedy would ensue where there was; (a) an unjust enrichment; (b) corresponding deprivation, and (c) an absence of juristic reason for enrichment. Pettkus v. Becker (1980) 1980 CanLII 22 (SCC), S.C.R. 834. In his decision, the Adjudicator determined that all three criteria had been met. [11] The Adjudicator determined, however, that there also had to be some nexus or special relationship between the parties. He wrote: The question then becomes, is there some nexus or special relationship between the parties. The only relationship the parties have with one another is that materials of the Claimant are in the Dr.’s home. The Defendant Dr. did not meet the Claimant, the Defendant Dr. did not ask the Claimant to sell him the materials, the Defendant Dr. took no charge over the laying of the floor in question here, the Defendant Dr. did not order the materials, materials and labour to install them in the home nor were they invoiced to the Defendant Dr. The Defendant Dr. did not expect to pay for the material as he paid the other named Defendant PJ or his Company for same. As it turned out, the Defendant PJ was rogue in the sense he disappeared without meeting his obligations to the Claimant and Defendant Dr. [12] The Adjudicator (and Joseph) rely upon the case of Nicholson v. St. Denis et.al., (1975) 1975 CanLII 393 (ON CA), O.R. (2d) 315 (Ont.C.A.) as authority for the proposition that such relationship is pre-requisite to recovery. agree with the Wacky’s submission that Nicholson suggests simply that such relationships form significant thread which runs through the jurisprudence, but not that there is an additional burden that must be met by claimant. Here, the three criteria having been met, Wacky’s is entitled to be paid. The law is not as clear as one would hope. MacKinnon JA stated: It is difficult to rationalize all of the authorities on restitution and it would serve no useful purpose to make that attempt. It can be said, however, that in almost all of the cases the facts established that there was special relationship between the parties, frequently contractual at the outset, which relationship would have made it unjust for the defendant to retain the benefit conferred on him by the plaintiff benefit, be it said, that was not conferred ‘officiously’. This relationship in turn is usually, but not always, marked by two characteristics, firstly, knowledge of the benefit on the part of the defendant, and secondly, either an express or implied request by the defendant for the benefit, or acquiescence in its performance. [13] The Federal Court in Robert McLaren, Garry Seeman and Donald Thompson v. The Queen, [1984] F.C. 899, subsequently determined the significance of special relationship. As opined by Justice Muldoon in that case: What is that special relationship? It may be contractual, fiduciary or matrimonial. It may be very casual arrangement, or an unenforceable contract. It seems to be the sine qua non of success, but it is not an inevitable guarantee of success. special relationship is factor in all but two of the cases, cited here by counsel in which the plaintiffs have succeeded. It is the essential nexus between the defendants’ words and conduct, and the plaintiffs conferring of the benefit .. [14] In The Law of Restitution, Looseleaf Edition, the authors, Peter D. Maddaugh and John D. McCamus, speak to this issue at page 33-18, where they note that: On this point the Court of appeal offers little guidance and appears to come perilously close to suggesting that, in the absence of such relationship, coupled with either request for or acquiescence in the receipt of the benefit, no recovery will be allowed. The adoption of such view would mark significant retreat from established principles of restitutionary liability. [15] On balance, the presence of special relationship will be persuasive but not necessarily conclusive in the fact-finder’s analysis. The absence of a special relationship will not necessarily defeat a claim. [16] Here, the facts do establish that there was “casual arrangement” as contemplated by Justice Muldoon in McLaren, supra. In Nicholson, MacKinnon JA stated that for there to have been special relationship the defendant must have had knowledge of the benefit, and he must have either requested it, or acquiesced to its performance. In that case the defendant, St. Denis, was unaware that the work had been performed, and so it was held that no special relationship existed. The same is not true in this case as Joseph was clearly aware that the work was being performed, and had in fact selected the flooring from Wacky’s store. Cross Appeal: [17] The Adjudicator did find that the Small Claims Court has the equitable jurisdiction to determine unjust enrichment. agree. [See Gaudet v. Prudential Assurance Co. et al, [1988] N.S.J. No. 457; 88 N.S.R. (2d) 391; Credit Union Atlantic Ltd. v. MacLean, 1996 CanLII 5509 (NS SC), [1996] N.S.J. No. 223; 152 N.S.R. (2d) 314; Magnum Contracting Ltd. v. DLG Contracting Ltd., [2004] N.J. No. 432 (NL. Prov. Crt.); 936464 Ontario Ltd. (c.o.b. Plumbhouse Plumbing Heating) v. Mungo Bear Ltd., 2003 CanLII 72356 (ON SCDC), [2003] O.J. No. 3795. therefore, dismiss the Respondent’s cross-appeal on the jurisdictional issue. [18] I am therefore, allowing the appeal. The Appellant is entitled to be paid $18,601.55 plus interest at the rate of 5% per annum from the date the invoice was presented to the Respondent. The Appellant is also entitled to its costs. Order accordingly.

The claimant flooring dealer had supplied and installed a large amount of flooring in the defendant's new home. Although the defendant had visited the claimant's store and selected the flooring, the actual purchase was made by the defendant's contractor who did not pay the claimant and had now declared bankruptcy. The adjudicator found that although the three criteria for an unjust enrichment claim had been met, there was no special relationship between the parties and thus, denied the claim. The claimant appealed. Appeal allowed; the absence of a special relationship will not automatically defeat a claim of unjust enrichment; the Small Claims Court has the equitable jurisdiction to determine unjust enrichment claims.

5_2006nssc353.txt

nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2013 SKQB 434 Date: 2013 12 11 Docket: Q.B.G. 1001 of 2013 Judicial Centre: Regina BETWEEN: HELEN THERESA PEARCE-ELL and KEITH HOLGATE and LAURA HOLGATE Counsel: Merrilee Rasmussen, Q.C. for the plaintiffs Reginald E. Sauer for the defendants JUDGMENT SCHWANN J. December 11, 2013 [1] The sole issue presented by this application is whether Mervin C. Phillips and the lawyers with Phillips Co. should be disqualified from continuing to act for the plaintiff, Helen Theresa Pearce-Ell, because of conflict of interest. [2] In early 2011 Helen Pearce-Ell and Keith and Laura Holgate began discussions about the possible purchase and sale of Pearce-Ell’s personal care home located at 133 Dalgleish Drive, Regina, Saskatchewan. [3] Negotiations proceeded to the point where the parties began the necessary approval process for Laura Holgate to operate the personal care home. According to Laura Holgate, Pearce-Ell suggested they have the sale agreements drawn up by her lawyer and that both sides use the same lawyer to save costs. To that end, Pearce-Ell scheduled meeting with Mr. Phillips of the Phillips Co. law firm, with whom she had had long-standing solicitor-client relationship. Pearce-Ell invited the Holgates to the meeting. [4] On July 26, 2011, Pearce-Ell, along with Keith and Laura Holgate, met with Mr. Phillips and Leane Phillips at the offices of Phillips Co. Laura Holgate’s recollection of that meeting is set out in para. of her affidavit: 7. The meeting at Mr. Phillips’ office lasted approximately one hour. During this meeting Keith and along with Helen and Robert explained to Mr. Phillips the terms that we wanted to have included in the Agreement for Purchase and Sale. Mr. Phillips informed us collectively that he would draft the Agreements and contact us when they were ready to be signed. At no time during this meeting did Mr. Phillips or anyone else at the meeting explain to Keith or that we needed to obtain our own lawyer to review or sign the Agreements. Keith and were left with the understanding that Mr. Phillips was preparing the Agreements on our behalf as well as on behalf of Helen. [5] Mr. Phillips has different recollection of the events on July 26th. At paras. and of his affidavit, he deposes: 8. After being briefly introduced and while in the waiting room of my law firm and in the presence of Mrs. Pearce-Ell and Leane Phillips, expressly advised Mr. and Mrs. Holgate that my law firm acts for Mrs. Pearce-Ell and as result that my law firm could not act for them and therefore they would have to retain different lawyer. 9. Subsequently, accompanied Mrs. Pearce-Ell, Leane Phillips and Mr. and Mrs. Holgate to the office of Leane Phillips, and thereafter summarized that Leane Phillips should prepare the contracts requested by my client, Mrs. Pearce-Ell. Thereafter, again expressly advised Mr. and Mrs. Holgate that my law firm acts for Mrs. Pearce-Ell and as result that my law firm could not at for them and therefore they would have to retain different lawyer. [6] Ms. Phillips has similar recollection of events. She says at paras. and of her affidavit: 6. Mervin Phillips accompanied Mrs. Pearce-Ell and myself to my office. However, on the way to my office, the presence of Mr. and Mrs. Holgate in my law firm’s waiting room was noted by Mrs. Pearce-Ell. We were briefly introduced to Mr. and Mrs. Holgate. Thereafter, Mervin Phillips expressly advised Mr. and Mrs. Holgate that my law firm acts for Mrs. Pearce-Ell and as result that my law firm could not act for them and therefore they would have to retain different lawyer. 7. Thereafter, Mervin Phillips, Mrs. Pearce-Ell, Mr. and Mrs. Holgate, and all went to my office. Thereafter, Mervin Phillips summarized that should prepare the contracts requested by my client, Mrs. Pearce-Ell. Mervin Phillips again expressly advised Mr. and Mrs. Holgate that my law firm acts for Mrs. Pearce-Ell and as result that my law firm could not act for them and therefore they would have to retain different lawyer. [7] Laura Holgate takes exception to Mr. Phillips’ affidavit. She claims he never expressed an inability to act for her and her husband or that separate legal representation was required. [8] It is Mr. Phillips’ position the Holgates disclosed no confidential information to any lawyer within his law firm apart from the nominal information described in para. 12 of Ms. Phillips’ affidavit, that is: 12. For the remainder of the meeting, obtained from Mrs. Pearce-Ell and the Offer to Purchase form the information necessary to complete the draft Offer to Purchase document attached as Schedule “B” to the Affidavit of Laura Holgate sworn August 9, 2013. The information that was inserted mostly consisted of the information Mrs. Pearce-Ell placed in the blank Offer to Purchase form herself, however checked the legal description of title with ISC, inserted the email addresses for both the vendor and purchaser, inserted the purchase price and deposit price, left the amount for mortgage approval blank (as did not know the information as to what mortgage approval Mr. and Mrs. Holgate required), and inserted dates by which the possession, removal of conditions and acceptance of offer was to occur. [9] Ms. Phillips, however, also describes discussion she had with Keith and Laura Holgate about their desire to leave their farm and move into Regina, the difficulty they encountered selling their farm property and the fact it had been listed for period of time (para. 10). She then says at para. 11 of her affidavit: 11. indicated that if their property was not sold by the time of the possession date for the prospective purchase of Mrs. Pearce-Ell’s property, which date was informed had been chosen so as to permit Mr. and Mrs. Holgate’s children to start the new school year in September, that Tenancy at Will document would be required. [10] Ms. Phillips prepared the tenancy agreement referenced in para. [11] The next interaction between the Holgates and members of Phillips Co. occurred on August 22, 2011 when Laura Holgate received an email from Ms. Phillips. Draft offer to purchase and tenancy agreements were attached along with this e-mail note: ...please review and advise if ok to send to your lawyer Jeff Reimer or if you have any questions/revisions. [Emphasis added] [12] According to Laura Holgate, it was at this point she first realized the Phillips Co. law firm was not acting for her. At para. of her affidavit she says: 8. Sometime after the meeting at Mr. Phillips’ office was contacted by Leane Phillips to inform me that the draft Agreements were ready for signing. It was at this point that Leane Phillips informed me that Keith and needed an independent lawyer to witness the Agreements. was confused because thought we would all sign the Agreements at Mr. Phillips’ office since he drafted them for us. told Leane Phillips that Keith and would probably use Jeff Reimer because he was the lawyer we used on our last real estate transaction. Mr. Reimer was not consulted by Keith or regarding this Agreement prior to my discussion with Leane Phillips. [13] Laura Holgate immediately contacted Jeff Reimer for legal advice in connection with the agreements. Laura Holgate instructed Mr. Reimer to ensure purchase of the personal care home was conditional upon the sale of their farm. Mr. Reimer suggested couple of additions to the agreement to address these concerns and these revisions were entered by hand to the draft documents. [14] Both Keith and Laura Holgate signed the amended agreements on September 7, 2011, backdating them to September 1st to coincide with the change in possession. The parties disagree about whether the signed agreements were returned to Mr. Phillips’ law firm. In any event, neither version of the documents was executed by Pearce-Ell. [15] The Holgates took possession of the personal care home around the same time they executed the agreements. Relations between the parties deteriorated thereafter and in May 2012 Mr. Phillips wrote to Keith and Laura Holgate demanding payment in full for the property. His letter was followed by an application for writ of possession and ultimately issuance of statement of claim on behalf of Pearce-Ell. The Holgates are alleged to have occupied the plaintiff’s land (personal care home) without legal justification and that their continued occupation constitutes trespass to land. The Holgate’s defence to this claim is based on their understanding of the agreed terms of sale with particular focus on the parties’ mutual agreement that payment of the purchase price was conditional upon the sale of their farm. [16] While the central issue is whether Mr.Phillips and the lawyers from the Phillips Co. law firm should be disqualified from acting for Pearce-Ell because of conflict of interest, the parties agree the issues on this application reduce down to the following: (a) Did solicitor-client relationship exist between Laura and Keith Holgate and Phillips Co.? (b) If so, should Phillips Co. be disqualified from acting on behalf of Ms. Pearce-Ell by reason of conflict of interest? (c) If solicitor-client relationship existed, did Laura and Keith Holgate waive their ability to raise this issue by reason of delay? (a) Did solicitor-client relationship exist between Laura and Keith Holgate and Phillips Co.? [17] The Supreme Court of Canada’s decision in Descôteaux v. Mierzwinski, 1982 CanLII 22 (SCC), [1982] S.C.R. 860, at p. 876 offers the following broad guidance on when solicitor-client relationship is said to arise: When dealing with the right to confidentiality it is necessary, in my view, to distinguish between the moment when the retainer is established and the moment when the solicitor‑client relationship arises. The latter arises as soon as the potential client has his first dealings with the lawyer's office in order to obtain legal advice. [Emphasis added] [18] In Popowich v. Saskatchewan, 1995 CanLII 5956 (SK QB), [1995] W.W.R. 314, 132 Sask. R. 48 (Sask. Q.B.) Barclay J. expanded upon the test and clarified that it was to be viewed from the vantage point of the client not the lawyer. He said: 34 ... the test to be applied is that solicitor‑client relationship arises once legal consultation occurs and the timing of that depends upon whether the client believes he is dealing with solicitor in professional capacity. 35 It has long been settled that there need not be formal retainer in order for the solicitor‑client relationship to be constituted. [19] Mr. Phillips submits no solicitor-client relationship arose between his law firm and the Holgates. He points to the fact there was no retainer, no file was opened on behalf of the Holgates, no meeting took place apart from the July 26th meeting with Ms. Pearce-Ell, and no bill was rendered or paid by the Holgates. He places reliance upon the Alberta case of Jeffers v. Calico Compression Systems, 2002 ABQB 72 (CanLII), Alta. L.R. (4th) 147 where numerous indicia of solicitor-client relationship were discussed. [20] The Calico decision, in my opinion, does not meaningfully assist Mr. Phillips. It does not stand for the proposition that all or even most of the referenced indicia need be present before solicitor-client relationship arises as matter of law. The listed indicia, rather, are merely touchstones designed to assist in assessing this issue. In fact, the court in Calico took care to clarify this point and to articulate reasonable person test: 8. ... Not all indicia need to be present. As Madam Justice Romaine stated in Guardian Insurance, supra, the question appears to be whether reasonable person in the position of party with knowledge of all the facts would reasonably form the belief that the lawyer was acting for particular party. [21] With that, turn to the indicia which are present. The Holgates met with Ms. Phillips on July 26th for approximately one hour. The Holgates went to the meeting under the impression they and Pearce-Ell were using the same lawyer for the purposes of saving money. Laura Holgate says she imparted information to Ms. Phillips about the transaction. By her own affidavit, Ms. Phillips concedes she discussed complications with their desired possession date in the event their farm property was not sold in timely way. Ms. Phillips herself suggested tenancy type agreement to address this concern. As mentioned, the meeting lasted roughly one hour. meeting of this length seems unnecessarily long if the purpose of the meeting was simply to obtain non-contentious, basic facts or contact information to fill in form-based document. [22] Moreover, the August 22nd email from Ms. Phillips to Laura Holgate, albeit ambiguously worded, is also relevant to this issue. On the one hand, she asked Ms. Holgate to “review and advise” and to get back to her “if you have any questions/revisions”. Yet on the other hand she inquired if she should send the documents to Mr. Reimer. One wonders why she would communicate directly with the Holgates in the first place if she thought they were represented by legal counsel, but more importantly why she would bother to ask for their comments and revisions if she wasn’t acting for them. [23] Based on the whole of the evidence, viewed objectively through the eyes of a reasonable person, I am satisfied the interaction between the Holgates and the lawyers from Phillips & Co. constituted a solicitor-client relationship. might add this conclusion is consistent with the definition of “client” adopted by the Law Society of Saskatchewan which defines “client” to mean person who: ...having consulted the lawyer, reasonably concludes that the lawyer has agreed to render legal services on his or her behalf. [24] The solicitor-client relationship existed until August 22 or 23 when the Holgates referred the sale documents to Mr. Reimer. [25] In reaching this conclusion, am not unmindful of the content of the affidavits sworn by both Mr. Phillips and Ms. Phillips. wish to be clear that in reaching my conclusion about the existence of solicitor-client relationship, am not calling into question the truthfulness of the lawyers’ affidavits. However, the evidence is controverted. In assessing the matter and having regard to the whole of the facts, am satisfied the Holgates were left with the impression and expectation that the Phillips Co. law firm was acting for both sides, and that their impression was reasonably held. (b) If so, should Phillips Co. be disqualified from acting on behalf of Ms. Pearce-Ell by reason of conflict of interest? [26] The relationship between solicitor and client is fiduciary one. Lawyers are subject to strict ethical rules which find expression in codes of professional conduct adopted by the self-governing body in each jurisdiction. The obligation owed to former clients is one dimension of this duty. It has been repeatedly stated that lawyer’s main duty to former client is to refrain from misusing confidential information. [27] The Supreme Court of Canada’s decision in MacDonald Estate v. Martin, 1990 CanLII 32 (SCC), [1990] S.C.R. 1235, 77 D.L.R. (4th) 249 (“Martin”) has long been recognized as the seminal case in Canada with respect to fiduciary duties owed by lawyers, and of particular relevance to this case, the confidentiality obligations owed to past clients. The Supreme Court began its analysis with recognition of the legitimate, yet competing interests at play. The first broad interest is the desire to maintain the high standards of the legal profession and the integrity of the justice system. The second, often countervailing interest, is not to deprive person of his or her choice of counsel. And the third concern is to permit reasonable mobility in the legal profession. (Martin, supra, p. 1243) [28] The Supreme Court had opportunity to revisit Martin in Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39 (CanLII), [2013] S.C.J. No. 39 (QL) (“C.N.R.”). That decision succinctly reaffirmed the duty owed to former clients: “The lawyer’s main duty to former client is to refrain from misusing confidential information.” (para 23). Adopting Martin, the Supreme Court, in C.N.R., re-affirmed the two-part conflict of interest test with regard to former clients: 24 ........ two‑part test is applied to determine whether the new matter will place the lawyer in conflict of interest: (1) Did the lawyer receive confidential information attributable to solicitor and client relationship relevant to the matter at hand? (2) Is there risk that it will be used to the prejudice of that client?: Martin, at p. 1260. ... [29] With those principles in mind, turn to the application of that test in the present circumstances. i) did the lawyer receive confidential information relevant to the matter at hand? [30] To assist in addressing the first part of the test, Sopinka J., in Martin, supra, at p. 1260, made these observations in relation to former clients .. In my opinion, once it is shown by the client that there existed previous relationship which is sufficiently related to the retainer from which it is sought to remove the solicitor, the court should infer that confidential information was imparted unless the solicitor satisfies the court that no information was imparted which could be relevant. ... Similarly, in C.N.R., supra, at para. ... If the lawyer's new retainer is "sufficiently related" to the matters on which he or she worked for the former client, rebuttable presumption arises that the lawyer possesses confidential information that raises risk of prejudice: [31] Both parties agree that if previous solicitor-client relationship is found to exist, that relationship or retainer is sufficiently related to the action commenced in these proceedings. This concession is self evident given the direct factual connectiveness between the sale and tenancy discussions with the parties and the gravamen of the action brought by Pearce-Ell against the Holgates. Simply put, the Phillips Co. law firm commenced an action on behalf of Pearce-Ell in relation to the very matter they discussed with the Holgates. [32] Having found solicitor-client relationship arose and that the new retainer for Pearce-Ell was sufficiently related to the matters involving the Holgates, both Martin and C.N.R., indicate that, as matter of law, it must be presumed the lawyers at the Phillips Co. law firm possessed confidential information. [33] This legal presumption is not irrebutable. However, as Martin, supra, instructs (at p. 1260) discharging that burden is not simple matter because the evidence must pass the scrutiny of the “reasonable person test” without actually revealing the specifics of the privileged communication: .. This will be difficult burden to discharge. Not only must the court's degree of satisfaction be such that it would withstand the scrutiny of the reasonably informed member of the public that no such information passed, but the burden must be discharged without revealing the specifics of the privileged communication. Nonetheless, am of the opinion that the door should not be shut completely on solicitor who wishes to discharge this heavy burden. [34] Paragraph 12 of Ms. Phillips’ affidavit alludes to the type of information gathered from the Holgates. Mr. Phillips contends the nature of this information was nothing more than mere garden variety conveyancing information. He doesn’t perceive it to be confidential, and in any event, he argues the Holgates have failed to demonstrate how such benign information could be used against them. In other words, he contends that he has adequately discharged the onus borne in these circumstances and it now falls to the Holgates to explain how this information could possibly be characterized as confidential. [35] With regard to the matter of onus, the law is clear. “In making this evaluation, court should not require client to disclose what information or types of information it seeks to protect or to explain how such information may be relevant to proceedings....” (Halsbury’s Laws of Canada, Legal Profession, 1st ed. (Markham,ON:LexisNexis,Canada, 2013) at p. 336) The former client need only satisfy the court of its broad relevance to the proceedings at hand and of the risk posed if it passed into the hands of the other party. In fact, requiring them to do so defeats the very purpose the protection was intended to convey. [36] While it is true we don’t know precisely what the Holgates said at the July 26th meeting, the pleadings clearly reflect sharp disagreement between the parties over the terms of their agreement and in particular whether the Holgates’ legal position was protected pending sale of their farm land. Given the nature of the ensuing lawsuit, its hard to fathom that information imparted to Ms. Phillips was purely procedural and benign in nature and not ultimately relevant to the suit commenced one year later by Mr. Phillips. [37] The next question is whether Ms. Phillips’ affidavit was sufficient to rebut the presumption. think not. In circumstances where lawyer purports to conduct litigation adverse to the former client in relation to matter connected to the first retainer, simple affidavit contesting the client’s assertions will rarely suffice. (Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36 (CanLII), [2006] S.C.R. 189 at para. 42) While para. 12 of Ms. Phillips’ affidavit describes the type of information in benign way, it is far too generalized to rebut the presumption. [38] To summarize, where solicitor-client relationship is found to exist, as have so found in this instance, the lawyer’s duty is to refrain from misusing confidential information received from the former client. Once that former relationship has been established, and once it can be shown that the relationship is sufficiently related to the retainer under challenge, rebuttable presumption arises in favour of the former client that confidential information was imparted. As the Phillips & Co. law firm have failed to rebut that presumption, I must presume the Holgates imparted confidential information to the lawyers in that law firm. ii) is there risk the confidential information will be used to the prejudice of the Holgates? [39] The second part of the Martin, supra, test is whether the confidential information imparted to Phillips Co. will be misused. Martin takes strict approach to the application of this part of the test. At p. 1261: ... lawyer who has relevant confidential information cannot act against his client or former client. In such case the disqualification is automatic. ... [40] Sopinka J. explained the rationale for this approach: ... No assurances or undertakings not to use the information will avail. The lawyer cannot compartmentalize his or her mind so as to screen out what has been gleaned from the client and what was acquired elsewhere. Furthermore, there would be danger that the lawyer would avoid use of information acquired legitimately because it might be perceived to have come from the client. This would prevent the lawyer from adequately representing the new client. Moreover, the former client would feel at disadvantage. Questions put in cross‑examination about personal matters, for example, would create the uneasy feeling that they had their genesis in the previous relationship. [41] This brings me to the ethical codes of the legal profession which are taken as an expression of the collective views of the profession on the standards to which the profession should adhere. It is common knowledge that the underlying purpose of self-governance, as expressed through codes of professional behavior, is the protection of the public and preservation of the repute of the profession. (C.N.R., supra, paras. 13-14) [42] The Law Society of Saskatchewan brought in revised Code of Professional Conduct (the “Code”) effective of July 1, 2012. Rule 2.04(10) addresses the circumstance of lawyer acting against former client: 2.04(10) Unless the former client consents, lawyer must not act against former client in: (a) the same matter, (b) any related matter, or (c) any other matter if the lawyer has relevant confidential information arising from the representation of the former client that may prejudice that client. [43] Rule 2.04(10) is directly on point to the matter before this Court and its application is clear: Mr. Phillips is prohibited from acting against the Holgates. While this Court is not bound by nor required to apply the Code, it nonetheless stands as an expression and clear one at that of the professional and ethical standards expected of lawyers in Saskatchewan in relation to former clients. It must be recalled that the duty to avoid conflicts is simply an adjunct to lawyer’s underlying duty to refrain from using confidential information received from former clients. In practice, Rule 2.04(10) operates to prevent situations from arising which carry heightened risk of breach of confidentiality. (C.N.R., supra, para. 24) [44] To be clear, it is not the job of this Court to pass upon lawyer’s adherence to the Code, nor to punish or discipline lawyers. Nonetheless, where matter of conflict is brought to the Court’s attention, the Court must consider the matter with an eye to and concern for the administration of justice and any appearance of impropriety. [45] Mr. Phillips and the lawyers within his law firm are ethically bound by the Rules of the Law Society of Saskatchewan to refrain from acting against former clients in the same or any related matter. At its core, the action between Pearce-Ell and the Holgates pertains to the terms of the agreement for sale, which is the same matter, or at the very least, a related matter to the original retainer. That alone is sufficient to justify their disqualification. [46] The same result is achieved by applying the Martin principles and presumptions. As Mr. Phillips possessed relevant confidential information from former client which could prejudice them in the within action, disqualification is generally automatic. While one can understand Pearce-Ell’s desire to continue on with Mr. Phillips given her long-standing relationship with him and his familiarity with this file, viewed from the perspective of reasonably informed objective person, an obvious conflict of interest exists which requires court intervention in the interests of the broader administration of justice. (c) If solicitor-client relationship existed, did Laura and Keith Holgate waive their ability to raise this issue by reason of delay? [47] Even if the Martin, supra, test is met, Mr. Phillips contends the Holgates waived their right of objection either though delay in raising the conflict issue in timely way, or by waiver of any confidentiality which would have attached to the discussions at the July 2011 meeting. [48] The first issue is readily disposed of on the facts. The statement of claim was issued on June 3, 2013. The Holgates’ legal counsel first broached the conflict of interest concern with Mr. Phillips in early July 2013. Their application followed on August 13th when negotiated approach failed. Simply put, there was no delay. [49] While it is true the defendants failed to raise conflict of interest concerns prior to issuance of the plaintiff’s statement of claim and that the within action was preceded by writ of possession application and analogous proceedings involving Mr. Phillips, the fact remains the Holgates’ seek an order disqualifying plaintiff counsel in this action. [50] Even if the defendants’ failure to raise the conflict issue in earlier proceedings is relevant to their motion in the present action, delay alone is not determinative. “Delay” is but one factor considered when applying the Martin, supra, test. The two lines of argument are not isolated from each other, as the court must take into consideration all relevant facts and circumstances including any procedural delay. J. T. Miller Construction Ltd. v. South Calgary Properties Ltd., 1995 ABCA 213 (CanLII), [1995] W.W.R. 146, 29 Alta. L.R. (3d) 393 (Alta. C.A.), for instance, demonstrates how delay fits within the Martin matrix. At para. 11 the Court said: 11 The degree of apparent conflict of interest here, and the likely harm, are of course relevant when weighing prejudice under the doctrine of delay (under procedural principles or as equitable laches). If the conflict were large, or serious harm were likely, we would likely disqualify the firm despite the time interval. Or we might disqualify the firm on condition that the party complaining pay costs to remedy its delay. Of course, we do not have that discretion when the case fits squarely within Martin v. Gray, supra, and the complaint of the conflict is made promptly. Then we must disqualify the law firm even if the conflict or likely harm is small. [51] There are two other considerations which undermine the strength of any delay argument. First, as mentioned above, Mr. Phillips proceeded with an action on behalf of Pearce-Ell in relation to the very agreements his law firm prepared following an all party meeting in July 2011 at his office. Moreover, the conditional nature of the transaction, which was crucial to the defendants and which appears to have been impressed upon Ms. Phillips at that meeting, features prominently in the pleadings. As noted above, disqualification in such circumstances is automatic. [52] Second, to give effect to the delay argument requires me to turn blind eye to the exacting standards imposed by the Law Society. am unable to see how clearly expressed Rule should be excused by pointing the equitable finger of delay at the Holgates. [53] Finally, Mr. Phillips submits the Holgates waived the confidential flavour of any information imparted to his law firm by their mere attendance at the July 2011 meeting. Again, two problems are evident from this line of argument. Mr. Phillips appears to confuse the ethical obligations imposed upon lawyers with evidentiary rules. The C.E.D. Western, 4th, Title 16: Barristers and Solicitors, explains the significance of this distinction at p. 279: §235 The ethical rule respecting confidentiality is distinguished from the evidentiary rule of solicitor-client privilege with respect to oral or documentary communications passing between client and lawyer. The ethical rule is wider, and applies without regard to the nature or source of the information or whether others may share the knowledge. (footnotes omitted) [54] Second, in order to waive the privilege which attaches to confidential information, “the waiver must be made clearly and the client must be fully informed.” (C.E.D. Western, supra, p. 286) There is no evidence before this Court of an informed waiver. DECISION [55] For the aforementioned reasons, the application is granted. There will be an order disqualifying Mervin Phillips and Leane Phillips from acting for the plaintiff, Helen Theresa Pearce-Ell, in this action. [56] Keith and Laura Holgate shall have their costs of this application fixed at $1,500.00, payable by Mervin C. Phillips. J. L. M. SCHWANN

HELD: The Court granted the application. It held that: 1) a solicitor-client relationship was created between the applicants and the defendants based on the evidence; and 2) that the applicants had not rebutted the presumption that they had received confidential information during the meeting that was relevant to the plaintiff’s action against the defendants. That finding was sufficient to disqualify them for acting for the plaintiff.

e_2013skqb434.txt

14 PROVINCIAL COURT OF SASKATCHEWAN PRINCE ALBERT IN THE MATTER OF INFORMATION #24121008 HER MAJESTY THE QUEEN and Leonard C. Cheney S.C. Carter, P.C.J J. Field, Q.C., CROWN PROSECUTORS, Prince Albert, SK. FOR THE CROWN. T. Forsyth, SANDERSON, BALICKI, POPESCUL LAW OFFICE, Prince Albert, SK. FOR THE DEFENCE. [1] The accused is charged that on the 24th day of September, 2001, at the Prince Albert District in the Province of Saskatchewan, he had the care or control of a motor vehicle while his ability to operate a motor vehicle was impaired by alcohol or a drug. [2] Does the accused’s evidence, which was to the effect that when stopped by the police he was suffering from panic attack, raise reasonable doubt as to his guilt? [3] On September 24, 2001, the R.C.M.P. officers were dispatched to trailer park at the south end of Prince Albert, Saskatchewan. The officers were told that an intoxicated male was operating brown, two-toned pick up truck. Officers McDermid and Johnson responded to the scene. After turning off Highway #2 and onto 48th Street they saw motor vehicle matching the description they had been given at “T” intersection which leads into the trailer court from 48th Street. This vehicle turned left onto 48th Street and then began to travel east on the gravel road. [4] Cst. McDermid was driving the police vehicle. He said that the truck was “all over the road”. In his evidence-in-chief he testified that this meant that the truck swerved into the left-hand side of the road more than four or five times. In cross-examination he admitted that he made no notes about exactly how many times but insisted that it was more than two times. McDermid activated his emergency lights. The truck did not immediately pull over so he activated his siren. Again the truck did not pull over so he drove beside the truck and motioned to the driver indicating that he must pull over. He described how the driver, later identified as the accused, slowly turned to look at the police vehicle and then slowly looked back in front of him and pulled the truck over. From the time he activated his flashing lights until the accused pulled over the distance travelled was approximately half kilometre. [5] Cst. McDermid stopped his vehicle and walked to the driver’s door. He found the accused to be the driver and only occupant of the vehicle. He smelled “strong odour of liquor” coming from the accused as well as from the inside of the vehicle. Once the accused was outside of the vehicle he was very unsteady on his feet “to the point where we grabbed him so he would not fall”. These observations together with the erratic driving led him to conclude that the accused was an impaired driver. He arrested the accused and advised him of his right to retain and instruct counsel without delay. The accused took advantage of his Charter right. With the assistance of Cst. McDermid he made numerous attempts to contact and finally managed to contact lawyer over the telephone. During the process of helping the accused get through to lawyer, Cst. McDermid was standing foot or two away from the accused. He noted that strong odour of liquor was still coming from the accused’s breath, his eyes were blood shot and he now had “very bad slurred speech”. Cst. McDermid watched through an observation window as the accused used the telephone and at one point he thought that the accused was going to fall out of his chair. As the efforts to contact lawyer continued the accused’s motor skills were getting slower and he began to fall asleep. When leaving the breath test room, Cst. McDermid noted that the accused still displayed signs of impairment. His speech was “really slurred”. His eyes were blood shot. He was still unsteady on his feet. The accused’s blood-alcohol readings were .70 and .60 and thus no “over 80" charge was laid. [6] Cst. Johnson had been on the job as R.C.M.P. officer for very short period of time. His evidence was that he remembered the accused’s “fine and gross motor skills” were “really slow”. He also recalled that the accused leaned against objects to keep his balance. This last observation was made at the detachment in the cell area. The Defence Evidence [7] The accused testified that he suffers from panic attacks and that, when stopped by the police, he was in the grip of such an attack. He admitted to consuming one vodka cooler before driving but argued that the signs of impairment displayed by him were the manifestations of his panic attack not from the consumption of alcohol. [8] The accused has been diagnosed as suffering from general anxiety disorder. (G.A.D.). Dr. Josias Badenhorst, general practitioner in Prince Albert, Saskatchewan with knowledge and experience in this particular area, was qualified by the court to give expert evidence concerning this disorder. He testified that G.A.D. is caused by sedative deficiency in the brain and is related to depression. On one side of the spectrum, this deficiency causes mild anxiety. On the other it causes panic attacks. There are 13 symptoms any four of which must be manifest for at least 10 minutes before diagnosis of panic attack can be made. These symptoms include: sweating, shortness of breath, chest pains, nausea, feeling faint or dizzy, numbness, chills or hot flashes. The attacks do not usually last very long although there is no specific time length. After the attack passes, people remember certain things but do not normally remember much. They can be precipitated by going off medication, consuming alcohol, stress, and lack of sleep. He testified that most of the symptoms displayed in panic attack are caused by hyperventilation which deprives the blood of oxygen poisoning it with carbon dioxide. [9] The accused’s wife testified as to her husband’s panic attacks. She recalled two such attacks before they were married. The attacks came in busy, crowded areas after the accused had worked for long hours and was feeling under great deal of stress because of his mother’s health. She testified that her husband shook, went, white and his pupils dilated. She could make no sense of his conversation. He was sweating and did not know where he was. She said that these attacks lasted 24 48 hours after which he slept for long periods of time. She described these two episodes as extreme. She says that she has witnessed less severe attacks with similar symptoms. Alcohol had not been involved with any of the attacks that she witnessed. [10] The accused testified that he is an alcoholic. His life has been journey which has included very high levels of personal and professional achievement as well as extremely low periods which included living on the streets of Edmonton. He spent some periods of time in mental institution in Alberta. He has been diagnosed as suffering from G.A.D.. [11]. The events leading up to September 24 were extremely stressful for the accused. His mother was extremely ill and suffering from Alzheimer’s’. He was in charge of her welfare. His sister, who suffers from cerebral palsy, was in the process of moving back from Calgary to Prince Albert. He was also looking after her. He was working long hours renovating an office building. Finally, he also got married on September 15, 2001. The couple’s honeymoon was spent in hotel room after the ceremony and then rental cabin at Waskesiu in the Prince Albert National Park. It was at this rental cabin that he began to drink again. [12] His wife testified that at the rental cabin she awoke at about 4:00 in the morning on September 16 to find that her new husband was “well on his way”. He drank and slept. In the morning she testified that she literally had to put him into the van. She drove him back to Prince Albert and dropped him off at his mother’s house where he was living. She will have nothing to do with alcohol and did not see him for about month. She testified that when she did see him he was trying to sober up and that his anxiety level was extremely high. [13] The accused testified that he started to drink in the early hours of September 16, 2001 after two years of remaining sober. He testified that he drank for day and half straight. He did not eat and could not sleep. He was no longer taking his medication because he said he stopped when he began to drink. On September 24, 2001, he testified that he got up at 7:30 8:00 a.m. feeling pretty shaky. He got things together for his mother. At 11:00 a.m. he drank vodka cooler to “settle me down so could concentrate”. His wife was not speaking to him. He decided to drive to the trailer court where she was staying in order to drop off some of her clothing for her. He described his condition as being emotionally upset. He had not slept for week. He was upset over the wedding. He was “working like robot”. He recalled driving to the trailer and pulling onto the left-hand side of the driveway. He saw person named Brad who came out of the garage and he spoke to Brad about the clothes. Brad told him to put the clothes into car which the accused did. Brad then went back into his garage. The accused said that he smoked about three-quarters of cigarette hoping that Brad would come back to talk to him. When he did not come, he stubbed out his cigarette and then drove out of the trailer court and then east on 48th Street where he was pulled over by the police. [14] He remembered being told by the police that he had been stopped because he was swerving all over the road although he thought he had been driving in straight line. He remembered being told that he was being arrested for impaired driving. He recalled being taken to the R.C.M.P. detachment and also recalled calling seven or eight lawyers trying to get legal advise. He recalled the telephone booth that he sat in to make the calls. He recalled blowing once into the breath testing instrument although he was told that he actually blew twice. He did not recall the drive back to his mom’s house but recalled getting back to his mom’s house. He had no recollection of any difficulty in sitting on the chair in the phone booth at the detachment. He said that it was possible that he was unsteady on his feet because “I was into my panic disorder”. [15] The defence argues that the police officers were focused on impairment by alcohol because they had been told by their dispatcher that the operator of the two-toned brown Ford pick-up might be drunk. They argue that this focus blinded the police from seeing any other possibilities. The defence position is that the signs and symptoms of impairment displayed by the accused were the result of, or were equally consistent with, a panic attack. [16] The difficulty with this argument is that the evidence does not support it. Dr. Badenhorst confirmed that the accused had been diagnosed as suffering from G.A.D.. He has prescribed mild dose of Librium to help calm the accused. However, the evidence of Dr. Badenhorst is that most of the symptoms of panic attack are brought on by hyperventilation which has the effect of aggravating the problem because hyperventilation deprives the body of the oxygen it needs. There was no evidence of any hyperventilation by the accused. No shortness of breath which could have caused problems for the breath test. There is no evidence of sweating or of nausea or of chest pains or numbness or hot or cold flashes. According to Dr. Badenhorst, when in panic attack, one would expect the patient to have speech problems in the sense of choking, not the slurring of speech. In addition one apparently does not fall or begin to fall asleep during such an attack. The accused’s memory of the events prior to and during and after the driving and his arrest was quite good. [17] The condition the police found the accused in was nowhere near to what his wife told the court she has seen when panic attack is upon her husband. She described high level of anxiety with incoherent speech, shaking and sweating. The police officer found relatively coherent, calm person who later began to fall asleep when they were dealing with him. [18] Although the accused testified that he was into his panic attack his evidence was that he was working hard, stressed out about his marriage, stressed out about his mother and sister, off his medications, drinking, and not sleeping. He testified that he was like robot. [19] do not believe the accused when he testified that he was in the throws of panic attack. Nor does his evidence and that of the doctor raise reasonable doubt as to the possibility of him being in such an attack. [20] The blood-alcohol readings testified to show that the accused was below the legal limit but in my view that evidence together with the other evidence involving consumption of alcohol and the signs and symptoms of impairment by alcohol prove beyond a reasonable doubt that the accused’s ability to operate a motor vehicle was impaired by alcohol: see R.v. Stellato, (1993), 1993 CanLII 3375 (ON CA), 18 C.R. (4th) 127 (Ont. C.A.), affirmed 1994 CanLII 94 (SCC), [1994] S.C.R. 278, 31 C.R. (4th) 60; R.v. McCallum, (1995), 1994 CanLII 4646 (SK CA), 35 C.R. 266 (Sask. C.A.). As was stated by the court in McCallum the fact that the effects of alcohol may have been exacerbated by the accused suffering from fatigue does not provide defence to the charge. [21] I find the accused guilty as charged. DATED this 28th day of January, A.D., 2003, at the City of Prince Albert, in the Province of Saskatchewan. S.C. Carter, Provincial Court Judge

The accused was charged with operating a motor vehicle while impaired by alcohol or drug (Code ss.253(a) and 255(1)). The accused admitted to consuming one vodka cooler before driving but argued the signs of impairment were manifestations of his panic attack. No .08 charge was laid, as his readings were .07 and .06. HELD: The accused was found guilty of impaired driving. The evidence did not support the argument that he was in the throws of a panic attack. The blood-alcohol readings show he was below the legal limit but the signs and symptoms of impairment by alcohol proved beyond a reasonable doubt his ability to operate a motor vehicle was impaired by alcohol. As stated in McCallum, the fact that the effects of alcohol may have been exacerbated by the accused suffering from fatigue does not provide a defence to the charge.

3_2003skpc14.txt

nan REDACTED VERSION QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2017 SKQB 380 Date: 2017 12 19 Docket: DIV 207 of 2014 Judicial Centre: Regina Counsel: Christine Hansen-Chad for the petitioner Drew Filyk for the respondent (at the time of trial) S.K. now self-represented respondent JUDGMENT CHOW J. December 19, 2017 INTRODUCTION [1] The petitioner and the respondent were married in Pakistan on December 2, 2001. They have one son, D.K. (also known as D****), [2] Following D.K.’s birth, the family immigrated to Canada in 2005. They initially took up residence in Vancouver, before subsequently relocating to Saskatoon in 2008. In August 2012, the family moved again, this time to Ottawa, but by October of that year the petitioner had relocated to Regina. Instead of joining him, the respondent returned with D.K. to reside in Saskatoon. [3] After series of temporary separations, the petitioner and respondent parted for the final time in April 2014. [4] On April 24, 2012, the petitioner petitioned the court for divorce, joint custody and shared parenting of D.K., and an equal division of the family home and property. The same day, he obtained without notice order granting him interim parenting time, and prohibiting the respondent from removing D.K. from the jurisdiction. [5] After hearing the parties in chambers, the court granted the respondent interim primary residence of D.K., the petitioner specified access, and directed the matter to pre-trial conference. [6] The respondent subsequently applied for interim child and spousal support. On July 4, 2014, the court found the petitioner’s Federal Child Support Guidelines, SOR/97-175 [Guidelines] income to be slightly in excess of $245,000.00, and directed that he pay interim child support for D.K. in the amount of $1,949.00 and interim spousal support for the respondent in the amount of $5,250.00 per month. [7] On January 5, 2015, the respondent filed an answer and counter petition, opposing the petitioner’s claim for shared parenting and an equal division of the family home and property, and claiming divorce and joint custody of D.K., spousal and child support, and an unequal division of their family home and property. [8] The following day, she filed an amended answer and counter petition, abandoning her claim for an unequal division in favour of an equal division of the family home. [9] The action was subsequently pre-tried later that month, without success. [10] The parties seek resolution of the following issues arising from their marriage and its subsequent breakdown, namely: 1) custody and parenting of D.K.; 2) child support; 3) spousal support; 4) division of family property; and 5) divorce. EVIDENCE The Petitioner’s Evidence [11] The petitioner was born May 7, 1974 in Pakistan. He remained there until 2005, when he, along with the respondent and their son, immigrated to Canada. The petitioner testified he has not returned to Pakistan since, but speaks regularly with family members there, perhaps one or two times per month. Aside from one sister, who now lives in Toronto, his entire family continues to reside in the country of his birth. [12] The petitioner recalled that he and the respondent first met in 1998, while the two were working at the same hospital in Pakistan. At the time, the respondent was working as an intern. In 2000, the petitioner commenced four-year medical fellowship. The respondent, he maintained, had no plans to do fellowship at that time and had intended instead to become general practitioner at the conclusion of her internship. [13] The two were married on December 2, 2001, on very short notice the petitioner added, explaining the respondent thought marriage would be good idea. He described the parties’ early relationship as busy. He was resident, and also worked some evenings in children’s hospital, while the respondent worked as general practitioner. [14] On the parties were blessed with the birth of son, D.K. In Pakistan, the petitioner explained, their son’s surname, K***, is synonymous with his own surname, L****. [15] The petitioner was present for the birth, which was by way of caesarean. Because the respondent was working as general practitioner, she was able to commence maternity leave approximately month prior to D.K.’s birth and to remain on leave for some time thereafter, while the petitioner was obliged to return to work after only few days. [16] According to the petitioner, after their son’s birth, he worked early mornings until approximately 4:00 p.m., and then some evenings again from 5:00 p.m. to 10:00 p.m. He testified that in the morning before going to work, he would help with diapers, bottles and the like, and if he had time, he would bathe D.K. [17] He described the respondent’s relationship with members of his own family as poor, and explained that, while they respect her, she has had little to do with them. Despite never having met her father, the petitioner claimed to have good relationship with the respondent’s family. [18] According to the petitioner, while in Pakistan, he and the respondent managed largely with the assistance of friends, as the respondent made it clear she did not care for his family, or her own for that matter. Initially, the couple did not even notify their relatives of D.K.’s birth, and his family has only met their son once, in 2005. [19] The two agreed to apply to come to Canada, and after being interviewed in 2005, they were selected to immigrate. According to the petitioner, the respondent had previously applied, before their marriage, but had been unsuccessful. [20] He recalled they remained in Pakistan for approximately nine months following D.K.’s birth. During this time, the respondent stayed home to care for their son and to plan for their move to Canada. They were accepted to immigrate in March 2005, and arrived in September of that year. Once here, according to the petitioner, he worked and studied for exams while the respondent remained at home with D.K. [21] From September 2005 until approximately June 2008, the parties resided in Vancouver, where the petitioner worked long hours, five or six days per week as security guard, while studying for his medical exams. Eventually, the respondent also obtained temporary employment working five to six weeks on an election campaign. [22] After completing his exams in 2007, the petitioner was successful in obtaining medical residency. The respondent, he maintained, wanted him to work but did not wish to do so herself, or to continue with her studies, preferring instead to stay home. The petitioner agreed he had better chance of obtaining employment in his chosen field and, after applying for approximately 60 programs, he was granted two interviews. Eventually, he was offered residency in Saskatoon and, according to the petitioner, both he and the respondent were very happy with this opportunity. [23] The family relocated to Saskatoon in June 2008, where the petitioner commenced his new position the following month. According to his evidence, whenever he was not at work, the petitioner helped the respondent care for D.K. by feeding and bathing him, and changing diapers. [24] Initially, D.K. attended Montessori school, but eventually transferred to the public system. According to the petitioner’s testimony, he regularly attended school functions, as well as D.K.’s extracurricular pursuits, such as soccer and swimming, and both he and the respondent were responsible for getting their son to his activities. [25] The petitioner testified that he and the respondent had agreed that once he obtained his residency, she would study for her exams and eventually apply for residency of her own. According to his evidence, over the course of approximately two years the petitioner paid for cleaner and babysitter to assist the respondent on an ad hoc basis, whenever she needed time to study. While in Saskatoon, the respondent applied for residency but was unsuccessful in obtaining an interview because, according to the petitioner, she had become frustrated and failed to complete research project. [26] The family remained in Saskatoon until June 2012, when they relocated to Ottawa so the petitioner could pursue pediatric critical care fellowship. By this time, according to his evidence, the parties’ relationship had begun to deteriorate, and the respondent returned to Pakistan twice. [27] The Ottawa fellowship, he explained, allowed him to pursue his chosen career as children’s intensivist. According to the petitioner, he and the respondent discussed the opportunity in advance and they agreed he should apply. The respondent, he recalled, was initially happy in Ottawa, but within couple of months she was insisting that he quit and start working as general practitioner, so he could work more hours. According to his evidence, he eventually relented and, in October 2012 he resigned from the fellowship after only month. [28] According to the petitioner, it would have only taken him two years to complete the Ottawa fellowship, and he could have stayed, but the respondent wanted him to earn more money, as the couple were broke and their lines of credit exhausted. Saskatchewan Health, he explained, was eager to have him return, so he resigned the fellowship in Ottawa and within week began working in Regina, where he could earn more money. [29] The petitioner relocated to Regina first, and the respondent was to join him thereafter. According to his testimony, she did so briefly but soon advised she did not want to live with him any longer, and left with D.K. for Saskatoon. This, he explained was the third time she had separated from him. [30] He recalled that in December 2011, the respondent had returned to Pakistan in the wake of her mother’s passing. She remained there, according to the petitioner, for three to four weeks, during which, he assumed full responsibility for D.K.’s care. He explained that, when the respondent failed to return from Pakistan as scheduled, he managed, with the assistance of friends, to get their son to school and to care for him while he was also working. [31] The respondent, he recalled, complained she was no longer happy living with him, and, according to his evidence, she did not contact him or D.K. during this time except to advise she was not coming back for another 10 to 12 days. The petitioner testified that he and D.K. both missed the respondent, so she eventually returned, but their difficulties continued. The respondent, he added, resented him and blamed him for many of their difficulties, and the two slept in different rooms. [32] He testified that from April until June 2012, the respondent took D.K. with her to Pakistan in spite of the petitioner’s reservations. According to his evidence, he did not have the respondent’s contact information and she only called him once. When she did eventually return, the petitioner explained, the respondent resided in their condominium in Saskatoon until they moved as family to Ottawa. Then, after he accepted the position in Regina and returned to Saskatchewan, the respondent chose to live in Saskatoon with their son, from October 2012 until March 2013. According to the petitioner, he was afforded very little access with D.K. during this [33] He recalled that the respondent eventually returned with D.K., and they again resided together briefly as family in Regina, from March 2013 until July of that year. Initially, they resided in rented condominium, and eventually he and the respondent purchased home together in June 2013. They lived there for approximately 10 days, according to the petitioner, before the respondent once again left, surreptitiously, with their son while he was at work, on July 7. The petitioner testified he did not see D.K. again until September 2013. [34] When he attempted to contact her through text message, the respondent simply advised that she and their son were safe, and she did not wish to live with him anymore. According to the petitioner, he did not know where the respondent and D.K. were living, but he did not wish to go to the police or to child protection. After approximately three months, the respondent permitted him to see D.K., for approximately four hours, at the end of September 2013. [35] According the petitioner, while he and the respondent resided together from March until July 2013, he saw D.K. every day, and he was only on call in the evenings. [36] From September 2013 until February 2014, the respondent allowed him access to their son couple of days per month. He attended parenting after separation classes, and the respondent admitted to him, according to his evidence, that she realized it would be difficult for D.K. to be separated from his father, and advised she wished to return to live with him. He and the respondent again briefly reconciled until April 2, 2014, when they separated for good. [37] According to the petitioner, when D.K. was with the respondent he had lots of screen time, and as result, had poor performance in school. It was his evidence that the teacher had warned them D.K. needed to spend more time reading. As result, he and respondent had agreed their son would only have screen time after he had completed his studies each day. He explained that on April 1, 2014, D.K. had complained he was too tired to study, and was upset that he could not play. The petitioner maintained the respondent did not support him and insisted that D.K. could do whatever he wanted. The next day, according to the petitioner, the respondent left, once again, with their son. [38] On April 9, 2014 he recalled, the respondent wanted money for furniture, so he gave her $2,000.00 on the condition that she allow him to see D.K. The next day, according to his evidence, the respondent falsely alleged that he had threatened her. [39] The petitioner explained the respondent now resides in Harbour Landing, while he lives approximately one km away. [40] As for assets, he testified they had purchased condominium in Saskatoon, which they subsequently sold in 2013 for $244,500.00. The net profit from the sale was $13,774.00 and according to the petitioner, the respondent made it condition of the sale that she receive all of the net proceeds, which she did. [41] While residing in Saskatoon, the parties also purchased SUV for the respondent, for approximately $32,000.00 which was secured by loan. According to the petitioner, the balance owing was ultimately transferred to his line of credit, although the respondent still has possession of this vehicle. [42] He referred the court to number of documents exhibited in the proceedings and explained they had purchased home in the Harbour Landing area of Regina, on James Hill Road and as of April 30, 2014, the mortgage registered against the same had balance of $360,299.00. He also noted Royal Bank of Canada [RBC] account for personal expenses which, as of April 22, 2014 had balance on deposit of $2,755.00. [43] According to the petitioner, the parties also had joint account containing $153.00 as of April 2, 2014. [44] He also referred to the business valuation prepared by Virtus Group, as of December 31, 2014, and explained that the nature of his practice is unpredictable. [45] As for the parties’ debts, the petitioner testified he had obtained an interest-free loan from the Regina Qu’Appelle Health Region [RQHR] in the amount of $30,000.00, with three-year term, and recalled these funds were received by way of cheque and subsequently deposited into their joint Toronto-Dominion [TD] account. [46] He also testified to National Bank Loan in the amount of $190,000.00, which was, according to his evidence, used to pay child care, education and travel expenses and the like. When he started working, he explained, National Bank converted one half of the balance then outstanding to loan and the other half to line of credit. [47] He had also secured student line of credit from RBC. Although this line of credit was originally obtained in both his name and the respondent’s, she wanted to be released from any obligation for this debt, and it was subsequently transferred into his name alone. According to the petitioner, like the National Bank debt, the proceeds from this RBC line of credit were used to purchase their home, and to satisfy the parties’ education, living and other expenses. The RQHR loan, he explained, was used principally to establish his practice and to maintain cash flow for living expenses until he began receiving an income. The petitioner also testified as to RBC credit card in his name, which he used for company expenses, and TD credit card, which he used for personal expenses. [48] He explained that there is also “return of service” loan owing to the health region in Ontario, because he did not complete his service to them after leaving Ottawa. According to the petitioner, the health region there expects he will work five months for them, or alternatively, repay the balance outstanding on this loan in the amount of approximately $23,222.00. [49] The respondent, he added, had also obtained personal loan from her brother, in the amount of $35,000.00, which she received on March 30, 2014, on the understanding these funds would be applied in satisfaction of this loan. [50] Filed by consent was the petitioner’s financial statement and personal tax returns for the years 2012, 2013 and 2014, along with the professional medical corporation’s tax returns for 2013 and 2014. [51] The petitioner estimated his income for 2014 to be approximately $309,700.00, inclusive of salary and dividends and explained he receives fixed salary of $13,625.00 per month, from which he pays child support and spousal support, leaving him approximately $6,435.00 to cover his personal expenses, such as the mortgage, groceries and utilities each month. In the event his salary is inadequate, he draws dividends from his corporation as required to make up the shortfall. [52] He is presently making payments on account of the National Bank loan in the amount of $1,100.00 per month, and is paying an additional $500.00 per month toward the National Bank line of credit. He also pays $300.00 on account of the RBC line of credit, and is repaying the RQHR loan by way of monthly instalments of $1,500.00, as he was unable to repay the balance in full when it became due in October 2015. He estimated it will take him another year and half to two years to fully retire this particular debt at the present rate, and did not believe he would be permitted to extend the payment schedule beyond that. [53] The petitioner confirmed that since August 2014, he has paid the respondent spousal support in the amount of $5,250.00 per month, pursuant to an order of the court. Prior to this, he explained, he had been providing her with $6,000.00 per month, since March 2013, by way of dividends from the corporation, excepting for the month of July 2013, when he only provided the respondent with $3,000.00 because, according to his evidence, he was unable to find her. He added that, in October 2013, he paid $6,000.00 and in March 2014, he paid an additional $4,000.00 because the respondent asked for it. [54] The petitioner explained that he was now paying total $7,199.00 per month, inclusive of both child and spousal support, which sum is transferred directly from his RBC account to the respondent’s. [55] The petitioner described D.K. as an intelligent and pleasant boy, and good student, who has done reasonably well in the circumstances. He likes swimming and soccer and has many friends with whom he bikes and plays in the park. D.K. also likes video games and is generally happy child, according to the petitioner. He maintained that D.K. has told him he would like to spend more time with the petitioner, and recalled that, following the respondent’s return from Pakistan, she again moved in with him and attempted to reconcile because D.K. insisted he wanted to live with the petitioner. [56] He testified that when D.K. is in his care, they enjoy eating out, going to the movies and looking at the new housing construction in his neighbourhood. [57] D.K. has been attending Grade classes at Dr. Perry School in Regina since September 2013. Prior to this, the petitioner noted, he was enrolled at Argyle School. According to his evidence, the respondent unilaterally transferred their son, ostensibly because he was not receiving enough attention at Argyle, and the petitioner was not made aware of the transfer until it came to his attention at the end of September 2013. [58] He testified he has attempted to speak directly with D.K.’s new teacher, but has yet to hear back from her. He has also asked to be informed of educational information when it is released, but has been instructed to obtain it himself online. [59] According to the petitioner, their son had experienced some issues at school in the past, but is now doing well. He noted in this regard that while D.K.’s Grade report card contained only C’s and B’s, but no A’s. In Grade he earned all A’s and B’s, and not single grade. He maintained their son’s academic improvement is due in large part to the fact he is now able to assist D.K. with his schoolwork. He noted that in the preceding year, while D.K. was attending Grade 5, his access was limited to the first three weekends of each month, and each Wednesday. In April however, the respondent left for job offer in Dubai, and was gone for two months, during which, D.K. lived exclusively with the petitioner. According to his evidence, he and D.K. had good time during this period, and they worked together on his studies. The petitioner also enrolled their son in soccer, and they spent great deal of time building Lego and working on school projects. [60] The petitioner explained that this arrangement presented something of challenge, as the respondent had only given him week’s notice prior to leaving, but he successfully managed to arrange for child care, and to drop their son off for school every day, and pick him up most days as well. He testified that, as he is self-employed, he can manage his hours without substantially impacting upon his income and explained that he had hired student who lives nearby to assist in the event he had to be on call, or to work nights, and during the one week per month that he has to stay at the hospital from 8:00 a.m. until 5:00 or 6:00 p.m. [61] He recalled that, when the respondent finally returned from Dubai, he invited her to come and watch D.K. play, although it was his access period. He explained that, although he has tried to participate in extracurricular, educational and medical decisions, the respondent refuses to include him, and the petitioner could not say if D.K. is still involved in soccer. He claimed the little information he has about D.K. is derived from the times he enjoys access. [62] According to the petitioner, D.K. regularly tells him he wants to live with each parent on weekly rotation. To that end, the petitioner advised that in his opinion, it would be in D.K.’s best interest to be with his mother, and his father, as they are both significant influence in his life, and proposed that he and the respondent share parenting of D.K. on alternate weeks, with exchanges occurring on Mondays at school. Medical appointments, illnesses or other important information could be exchanged via text message and, in the event either parent is unable to care for D.K. for an extended period of time, the other should be their son’s alternate caregiver of first instance. [63] The petitioner reiterated his concerns about D.K. visiting Pakistan. He explained that, while he has no objection to their son traveling within Canada, he is opposed to any proposal for international travel, as he believes the respondent might refuse to return D.K., particularly if travelling to Pakistan. [64] D.K., he confirmed, prefers to be called D****, and that is how he and the respondent refer to their son. He testified that he and D.K. love one another, and that as parents, he and the respondent each possess different strengths which they can offer their son. [65] He reiterated that from July until the end of September 2013, he was denied any contact whatsoever with D.K. In September, according to the petitioner, he saw their son for four hours and, from October until February 2014, his access with D.K. was limited to approximately one day every two weeks, and then one weekend every two weeks but, he added, only after lawyers became involved. [66] In November or December 2013, he proposed four way meeting, in the hopes the parties could agree to parent on alternating weeks, but the respondent refused to participate, and the most she would offer was one weekend every two weeks. [67] He testified that in February 2014, he and the respondent reconciled briefly, but unsuccessfully and from April 2014 until the matter went to court, he was again denied access. He then saw D.K. couple of days every second weekend and thereafter, pursuant to court order, he was afforded access on the first three weekends of each month, as well as every Wednesday. [68] According to the petitioner, he has not been provided with any additional access beyond the court-ordered weekends and Wednesdays, save for four additional hours the preceding Christmas. [69] The petitioner confirmed he has had occasion to discipline their son in the past, and explained that he begins by talking to D.K., or taking away privileges, or by implementing timeouts. He expressly denied ever having used physical or corporal punishment. [70] He reiterated that he still fears for D.K.’s safety should he be permitted to travel to Pakistan, and those concerns are what has prevented him from returning himself. He recalled that in 2012, the respondent took D.K. to Pakistan when she moved out in April of that year, and they did not return until June. Although he was aware D.K. would be traveling there, he insisted he had concerns for his health and safety, and made those concerns known to the respondent. The respondent, according to the petitioner, had also wanted to take their son to Pakistan in July 2011, but they had discussed it, and she agreed to leave D.K. in Canada with the petitioner. [71] As for his work schedule, the petitioner explained he has one hospital week every one to two months, usually in the last week of the month, and during this time, he is generally obliged to remain at the hospital from 8:00 a.m. until p.m. He also shares night call responsibilities three to four times per month and stays home, but on occasion he may be obliged to go into the hospital. On these occasions, however, he is able to schedule his hospital attendances. [72] According to the petitioner, he has not taken single vacation in the preceding two years, explaining that, as he was alone, and as his professional corporation has no money and he no savings, he elected to work instead. He testified he aspires to eventually take four to six weeks off, but noted that if he is not working, he is not earning an income. The petitioner explained that, although his colleagues are able, when necessary, to cover his hospital time, as he is employed on fee-for-service arrangement, he is not paid for that time. [73] In the past, he recalled, there was shortage of staff at the hospital, so he worked long hours, but now, the hospital staff is larger, so there is not as much work. In the future, he anticipated his workday will generally begin at 9:00 a.m. and conclude by 3:30 p.m. on weekdays, and from 9:00 a.m. until 5:00 p.m. on Sundays. [74] The petitioner testified that his accountant convinced him to incorporate professional corporation, which in turn pays him salary, and dividends when available. Although he hopes to retire in approximately 20 years, and to put money away for D.K.’s education along the way, the petitioner acknowledged he presently has no pension or retirement savings, save for his Canada Pension Plan. [75] As for the living arrangements at his home, the petitioner confirmed that D.K. has his own bedroom, as well as various personal effects at the petitioner’s residence. He explained that he does not drive and, in the past, has arranged to get D.K. to soccer practice in taxi, or to enlist the assistance of friends or the babysitter. In addition, there is bus stop in front of his house and, if necessary, he can arrange to get D.K. to his school, approximately kilometre away. According to the petitioner, this is how he and D.K. managed while the respondent was in Dubai. When D.K. is with him, he is off to bed at approximately 8:30 p.m. or 9:30 p.m., and is up at approximately 6:30 a.m., usually without assistance. [76] His work schedule, according to the petitioner, coordinates well with their son’s school schedule, and the only times it presents any difficulty are during some of his Wednesday access periods, when he is unable to leave the hospital, once or twice per month. [77] The petitioner testified that he loves their son, and talks to him about school, his feelings and the like. He maintained that D.K. has expressed desire to have his mother and father live together, but less often now than in the past, as he has met other children at school who are in the same situation. The petitioner stated he has told D.K. not to worry about his parents’ relationship, that they are working on it, and things will be fine. Except to remind D.K. that when he is at the respondent’s home he has to follow her rules and respect her, the petitioner maintained he has not spoken with their son about the separation since 2014, when D.K. asked to come and live with him, and he and respondent briefly attempted reconciliation. [78] Under cross-examination, the petitioner allowed that he and the respondent disagreed about many things, including their finances and the parenting of their son, but noted they also agreed on number of other issues, including their decision to become married, and to relocate together to Canada. He also confirmed that he did not wish to return to Pakistan, out of concerns for his personal safety, and has not done so. [79] He acknowledged that, while in Pakistan, he tended to work 80 to 90 hours per week, and since arriving in Canada and qualifying to practice medicine, he continues to work long hours, but observed that this is the life of doctor. In Pakistan, he explained, the standard of living is lower for doctor and there, he noted, he was resident and not specialist, as he is here. [80] According to the petitioner, the respondent and their son would spend weeks at time with him when he was training in Vancouver, and they came to join him when he was studying in the United States for period of time as well. Although this increased their expenses, he explained, he was happy to have them both there with him. [81] The petitioner maintained that he considers the respondent to be true Muslim, but from different sect, and adamantly denied that he would become angry with her if she touched his holy book, explaining it is her holy book as well. [82] His father, the petitioner testified, had insisted he marry his cousin, but he did not like her, and did not want to marry his cousin in any event. When he married the respondent, she had already applied to immigrate to Canada. It would have been more expedient, he added, for him to immigrate to the United States instead. [83] He insisted he was in favour of the respondent maintaining relationship with and speaking to members of her own family but, he added, she refused to have any relationship with his. According to the petitioner, when her mother died in 2011, the respondent had not spoken to her for approximately three years, despite his attempts to persuade her to do so. He also maintained that the respondent does not enjoy good relationship with her siblings, save for one brother, Khalid, from whom she borrowed money. He denied he had been the one to persuade the respondent to ask her brother for money, and insisted it was her idea. According to the petitioner, while he and the respondent both used this money, he assumed sole responsibility for repaying it. [84] In order for the respondent to be licensed to practice medicine, the petitioner explained, she needs to complete residency, just as he did. He noted she has applied twice already without success. On the first occasion, he recalled, the respondent applied for residency outside of Saskatchewan, but on the second occasion, she applied primarily in the province because, according to the petitioner, they had agreed it would be difficult for D.K. to be removed from his school and friends. [85] The petitioner reiterated that he and the respondent originally agreed that he would complete his residency, and she would care for D.K., before embarking upon her own residency. However, the respondent did in fact write exams, undertake some training, and subsequently apply for positions while the petitioner was still resident. [86] The petitioner explained that in Saskatchewan, general practitioner can be practising medicine within few months, and it would be an advantage for the respondent to apply here. He insisted he had no desire to limit where she might apply for residency, but explained she would be required to work 70 to 80 hours per week as resident, just as he did, and maintained his only concern was who would care for D.K. while they were both working. [87] He conceded that the family had immigrated first to Vancouver, then to Saskatoon, and Ottawa to further his career, but maintained they left Ottawa to return to Regina because the respondent wanted them to. He insisted that it is in D.K.’s best interest to remain living in close proximity to his friends, schools and supports, and explained that their son was not in school when the family relocated to Saskatoon. He also noted that the respondent has changed their son’s school twice while in Regina, three times in Saskatoon, and on two more occasions while the family resided in Ottawa. [88] The petitioner denied the family was forced to leave Ottawa and relocate to Regina because he had failed to fulfil his service to Saskatchewan Health. In fact, he asserted, he had originally obtained letter from Saskatchewan Health, confirming their approval for him to work in Ottawa, which approval, according to his evidence, they subsequently withdrew. The petitioner also denied the suggestion by opposing counsel that, while working in Saskatoon, he had been investigated by the hospital over his temper, and denied further that another doctor had complained about him. [89] The petitioner agreed that the respondent had left the relationship on four separate occasions, and acknowledged she claimed to have left Ottawa because of abuse, perpetrated by the petitioner upon herself and their son. He denied this allegation and also denied having abused the respondent while they were residing in Vancouver. [90] The petitioner allowed that he and the respondent had separated in 2012, but denied he was emotionally or verbally abusive in any way. On the contrary, he suggested, it is the respondent who is emotionally and verbally abusive to him. [91] He also denied ever having threatened the respondent, explaining that when they last separated, on April 2, 2014, he had provided her with $2,000.00 for furniture on the condition that she permits him to see D.K. When she refused, he added, he told her he would take the matter to court. Two days later, he recalled, the police attended at his door. [92] The petitioner denied once again ever having physically or verbally abused the respondent, or hitting their son with his hand or with anything else. According to the petitioner, in the past the respondent has also accused him of sexually assaulting D.K., and social services has fully investigated those accusations. [93] He acknowledged that between April and June 2012, the respondent had taken their son to Pakistan and, although he had concerns the respondent might not bring D.K. back, they did return on June 19th. He also allowed that the respondent has travelled to Norway, New York, Toronto and Vancouver, often with D.K., and on each occasion she has returned. [94] He maintained that he is only concerned with D.K. traveling to Pakistan because of the instability there and the risks to his safety. He explained that when he previously deposed in an affidavit that the respondent had removed their son to Pakistan without his knowledge and consent, he was referring to the trip in 2012, and not an earlier one in 2011. Upon further cross-examination however, he acknowledged having provided her with written consent for travel for the period April to June, 2012. When confronted with this document by counsel, he maintained he had previously deposed to not having provided his consent, because it was not his will. [95] The petitioner proposed that the respondent had attended upon Saskatoon physician in March 2012 to report abuse, because she was aware he intended to pursue court ordered access to their son. According to his evidence, he only discovered the respondent had attended the domestic violence unit in 2013 from reviewing her affidavit, sworn in 2014. Similarly, it was only in the context of this affidavit that he had been made aware that the respondent had also arranged for D.K. to attend counselling through Child and Family Services, and he was never advised of when the counselling sessions were to take place, nor invited to attend. [96] He denied opposing counsel’s claim that D.K. once told the petitioner to get out of the house or he would call the police, asserting instead that their son had observed the respondent abusing him. [97] The petitioner was confronted with his property statements, sworn November 2, 2015, and August 18, 2014, and confirmed that both documents were true and correct to the best of his knowledge. The home, he testified, was purchased for $422,000.00, and although there were some items of furniture included in the price, he had also purchased dining room suite, coffee table, bedroom furniture, office furniture, washer and dryer, new television and treadmill. He agreed he has retained the majority of these household items since the parties separated. [98] The petitioner was then confronted with an appraisal of the home, suggesting that as of July 9, 2014, the home was worth $445,000.00 and conceded that this appraisal was provided to him prior to swearing his property statement in which he valued the home at $400,000.00. According to the petitioner, he valued the home at the reduced amount because he believed the housing market had softened. He noted there is mortgage registered against the property, and submitted the net equity in the same is approximately $74,000.00. According to the petitioner, the respondent had refused to sign the necessary paperwork to refinance the mortgage on the home at lower rate. [99] He conceded the respondent had requested copy of an earlier appraisal performed on the home, and suggested the respondent had also arranged to have an appraisal performed, and that someone actually attended at the home for that reason. [100] He explained that the $35,000.00 payment to the respondent was intended to repay the loan to her brother, and was drawn from dividends from his company. According to the petitioner, the balance actually owing to her brother at that time was approximately $20,000.00, but the respondent insisted on $35,000.00, so he gave it to her. [101] The petitioner asserted that, in his opinion, the respondent should be obliged to share in the repayment of his student loans, but agreed that it is reasonable to anticipate the respondent will also have expenses associated with setting up clinic of her own. [102] He testified that he has had learner’s driving permit for couple of years and explained that initially, he did not have enough money to purchase car. When he and the respondent were together, they had family car, but he did not drive because he had not obtained license. The petitioner confirmed he intends to obtain one within the next few months, as he needs only to complete road test. [103] He reiterated that their plan had been for him to complete his residency, and when he had begun to practice medicine, the respondent would then work to complete her own residency. [104] The petitioner agreed that he is currently licensed to practice medicine, and earns in excess of $300,000.00 per year doing so. He acknowledged his 2014 tax return shows income in excess of $309,500.00 of which $203,500.00 is salary and $106,200.00 is dividends, but explained his income that year was artificially high, as he had drawn down more than usual to pay income taxes. In the present year, he suggested, he is performing about the same amount of work, but has taken few extra days off and he anticipated that his salary would be the same, but that his dividends would be lower, as these dividends are declared and distributed in accordance with advice he receives from his account. [105] He maintained the respondent would have received approximately $66,000.00 in dividends in 2014, but acknowledged he ceased paying these dividends to her in July of that year, because she was receiving spousal support. [106] The petitioner was also confronted with the practice valuation report prepared by Virtus Group. He acknowledged he had not provided Virtus with his patient list when the report was prepared, but estimated he had approximately the same number of patients now as he did then, explaining that, as most of his patients come by way of referrals from family doctors, there is very little in the way of long-term recurring patients that remain in his care. [107] He recalled that, prior to attending Dr. Perry School, in Regina, D.K. had attended Argyle School. The petitioner explained that he and the respondent were living together at the time, on McIntyre Street in Regina, and that Argyle School was in the district. He maintained however, that he was never informed or consulted about the subsequent change to Dr. Perry School. He did not know the name of D.K.’s teacher at Argyle School. [108] He acknowledged that while the respondent was abroad, and their son was residing with him, D.K. was often sick with colds, fever and the like, which he attributed to changes in the weather. According to the petitioner, to his knowledge their son did all of his homework during this time, but he allowed that on couple of occasions, D.K. did not bring home his agenda. The petitioner believed D.K. had simply forgotten, and he emailed the teacher to have her remind him to bring the agenda home. He conceded having only sent D.K.’s current teacher one email, the week preceding trial, and explained he had not attended parent-teacher interviews because they had not emailed him to advise when they would take place, even though he had asked to be included. [109] He also denied that their son had only one sleepover while in his care, asserting that in fact there were two occasions during the two month period that D.K. resided with him. [110] During these two months, he agreed, he had paid the respondent no child support, explaining that although there was court order, it was his understanding that the support was to finance the care of their son, who was at that time living with him. He testified he presently pays the respondent combined spousal and child support of $7,199.00 per month. He agreed that initially, he experienced some difficulty deducting the spousal support for income tax purposes, but acknowledged the respondent had provided him with the necessary confirmation to remedy the situation within week of being asked. [111] According to the petitioner, the respondent also emailed him to advise she had enrolled D.K. in basketball, despite the fact their son wanted to play soccer instead. In response, the petitioner enrolled D.K. in soccer. He denied he had refused to provide the respondent with D.K.’s health card when she had previously asked for it, insisting he had simply forgotten to do so until two days later. [112] The petitioner recalled that D.K. was with him the preceding year for his birthday, and he had made plans for party, but was advised the respondent had already booked the same venue for D.K.’s birthday party with his friends. In an effort to avoid problem, the petitioner testified he and D.K. spent the day together and went out for dinner and movie instead. [113] He confirmed he no longer has home phone, explaining he had cancelled the service to save money at the end of June 2015. He added that as of October 2015, D.K. has his own cell phone, but explained he only has access to it when in the care of the petitioner because, according to his evidence, D.K. is fearful he will get in trouble if he takes it to the respondent’s home. [114] He agreed his home has security system, and conceded their son does not know the access code, but denied this presented problem, as he is always there with D.K. in any event. [115] Under redirect examination, the petitioner clarified, with respect to the home appraisal performed in July 2014, that the same was prepared at the request of the financial institution, as condition of the proposed mortgage refinancing, and was forwarded directly to the lender. As result, the petitioner maintained, he had not seen this appraisal. Kenneth Goodmanson [116] The petitioner tendered an appraiser, Kenneth Goodmanson, as an expert witness. Mr. Goodmanson testified he prepared two appraisals on the family home; the first was completed in July 2014, and the second in September 2015. [117] Counsel for the respondent conceded Mr. Goodmanson’s qualifications, and the validity of his opinions as to the value. [118] Mr. Goodmanson recalled that the first of his two appraisals was performed in 2014 at the request of the petitioner, and subsequently provided to him personally, and to his mortgage lender, while the second appraisal was prepared by the witness, upon the request of the petitioner’s lawyer, ostensibly for use in the within proceedings. [119] With respect to his first report, the witness noted it explicitly states it is prepared for the benefit of CMLS financial and sets out the lender’s email address. To the best of his recollection, Mr. Goodmanson also provided copy of this report to the petitioner. [120] As for the subsequent appraisal report prepared in September 2015, the witness confirmed it was prepared at the request of petitioner’s counsel, and that he was aware at the time that it would be used in these proceedings. [121] The witness testified that in his opinion, as of September 2, 2015, the family home had fair value, of $434,000. He explained the home is located in the Harbour Landing area of Regina, and there is lot of inventory available in this particular development at this time, so demand has not been strong. In his further opinion, the value of the home at the time of trial would be the same, or slightly less than the figure provided in his September 2015 report, as winter was approaching. [122] Mr. Goodmanson recalled that, after completing his initial report in July 2014, the respondent attended at his office in August, and asked to speak with him. She was not, in his opinion argumentative, but inquisitive. When she returned second time and requested copy of the report, he explained to the respondent that he could not oblige her request, as she was not his client. According to the witness, the respondent then attended upon his office third time, in September 2014, and he once again confirmed he was not at liberty to provide her with copy but suggested she speak directly with the petitioner or his lawyer. [123] The witness was, in the course of cross-examination, referred to his report of July 2014, and confirmed that he had, at that time, estimated value of the family home to be $445,000.00. Rupinder Multani [124] The court heard as well the evidence of Rupinder Multani, an ultrasound technician employed with Radiology Associates. Ms. Multani explained that she lives on Gordon Road, in Regina, and is familiar with both the petitioner and the respondent, as their son, D.K., attends school with her son, Prabnoor. She described her son and D.K. as good friends who play together regularly. They are in small class of only nine children, and recalled that D.K. had alerted her to the fact that Prabnoor had been bullied at school. While she tries whenever possible to attend school functions, Ms. Multani explained she is quite busy, and usually only attends parent-teacher interviews. [125] The respondent, she recalled, used to bring D.K. to her home, as would the petitioner on occasion, and she has seen D.K. in the company of both parents. In the month prior to trial she had seen D.K. and the respondent at local store and had also observed the petitioner and D.K. playing in the park. [126] She described D.K. as good boy, charming and happy, and confirmed she had personally observed D.K. while he was living with the petitioner, during the respondent’s two month absence, and watched them playing in the park. In her opinion, D.K. appeared happy in the company of the petitioner and, according to the witness, she has never observed him to be uneasy or reluctant when in the care of his father. She noted she has never personally observed either the petitioner or the respondent discipline D.K., or become angry with him. [127] Ms. Multani went on to recall that she moved to the area in September 2014 and that D.K. has been friends with her son, Prabnoor, ever since and that he has been to the petitioner’s and the respondent’s homes. According to the witness, Prabnoor has advised her he does not want to go to the respondent’s home any longer, but she does not know why, and he has not been to visit with D.K. at the petitioner’s home in while, because he’s been busy on the weekends. [128] Under cross-examination Ms. Multani advised that D.K. and the petitioner had been to her home together approximately three or four times, but allowed that on most occasions, the petitioner would simply drop D.K. off, and she could only recall one occasion on which the petitioner remained at her home for any length of time. Todd Stephen Underwood [129] The last witness to testify for the petitioner was Todd Stephen Underwood, partner with Baker Watson, chartered accountants. Mr. Underwood testified that, in addition to degree in Business Administration, he has earned his Chartered Accountant designation, and is Chartered Professional Accountant. He started his accounting career with Price Waterhouse Coopers, and was subsequently employed with KPMG until June, 2007, when he joined the firm of Baker Watson. [130] Mr. Underwood confirmed he is acquainted with both the petitioner and the respondent. He first met the petitioner in January 2013 when the latter was referred to him to provide accounting and tax advice by the lawyer who had incorporated the petitioner’s professional corporation. [131] He testified to having dealt with approximately 100 separate medical professional corporations and explained that, in his experience, the province’s College of Physicians and Surgeons restrict who can hold an interest in these entities. To that end, the witness testified that the petitioner holds voting shares in his medical corporation, while the respondent has an equal number of non-voting shares. [132] The witness was referred to the financial statements prepared for the petitioner’s corporation and confirmed he would have overseen and signed off on the same. He noted these statements confirm the petitioner has two employees himself, and one receptionist as reflected in the wages and benefits accounted for, and that he rents the premises from which he operates. He also explained that the transportation expenses set forth therein are attributable primarily to the petitioner’s taxi receipts. [133] With respect to tax liability, Mr. Underwood noted that in 2014, the corporation owed approximately $12,000.00 in corporate taxes, and although those arrears have now been paid, the corporation has failed to pay its regular tax instalments for the current year, which will result in additional penalties. [134] Mr. Underwood also noted that the petitioner owes approximately $11,000.00 in personal tax, but he anticipated this issue would be resolved on no payment basis, as this was product of Canada Revenue Agency’s previous refusal to acknowledge the spousal support being paid by the petitioner. [135] The witness was referred to the petitioner’s personal tax return for 2014, which suggested he had received dividends of $106,000.00 and explained the petitioner actually only received $90,000.00, but these dividends had to be grossed up for taxes. He also noted that in 2014, the respondent received $83,000.00 in dividends from the medical corporation, and that her taxable dividend as reported on her personal return that year was $97,940.00. According to the witness, the respondent last received dividend from the professional medical corporation in June 27, 2014. [136] He went on to explain that in 2013, the petitioner received wage, which was then augmented with dividends issued to both the petitioner and the respondent, in an amount necessary to maximize their respective after-tax situation. After the parties separated however, the witness arranged to have the petitioner receive more in salary, so he could afford to pay spousal support out of personal after-tax income. [137] He went on to explain that the goal ultimately is to grow these retained earnings in the corporation in tax-deferred basis, to provide for the petitioner’s retirement, as he does not have pension. As at the end of 2014 however, according to Mr. Underwood, the professional corporation’s retained earnings amounted to only $11,000.00. He could not recall whether the petitioner has any RRSPs, or tax-free savings accounts. [138] The witness confirmed that the wages paid to the petitioner in 2014 had increased from 2013, and explained again that it was advantageous to the petitioner to pay the respondent spousal support from his personal after-tax income. [139] According to the witness, it is anticipated that in 2015, the petitioner will receive $210,000.00 in gross wages and will be obliged to draw dividends in an amount sufficient to service his expenses, although his goal is to avoid doing so, if possible. [140] The witness agreed, under cross-examination that, ideally, the petitioner’s salary would be sufficient to pay his ongoing expenses, and it would not be necessary for him to declare dividends, so that he could build retained earnings in the corporation. [141] He confirmed again that the petitioner is presently at liberty to draw as much as he wants in dividends, so long as there are sufficient funds in the corporation. Mr. Underwood agreed it is the petitioner who determines his annual salary and how much of dividend he declares each year, but reiterated that the retained earnings in the corporation are presently approximately $11,000.00, which significantly curtails the petitioner’s ability to do so. [142] Mr. Underwood maintained that the petitioner cannot legally declare dividends in excess of the corporation’s retained earnings and suggested that, in his experience, the College of Physicians and Surgeons would object to any attempt to pay the respondent dividends from the professional corporation in lieu of spousal support, if she were no longer the petitioner’s spouse. [143] The witness advised he has yet to prepare the 2015 corporate statement. The Respondent’s Evidence [144] The respondent testified she is 42 years of age and was born in Pakistan. [145] She confirmed that her property statement sworn July 7, 2014, and financial statement sworn June 11, 2014, exhibited as R-3 and R-4 respectively, were true and accurate to the best of her belief, as was her updated financial statement, sworn October 28, 2015, and exhibited as R-5 in these proceedings. Also exhibited as R-6 and R-7 were the respondent’s 2013 and 2014 tax returns. [146] The respondent conceded that she received $35,000.00 from the petitioner’s medical corporation, but claimed it was all to repay the loan to her brother, and added that she had been obliged to pay income tax on the proceeds because she had received them by way of dividend. [147] She went on to recall that her father died in July 2005, prior to the parties immigrating to Canada, while her mother subsequently passed away in December 2011. According to the respondent, the petitioner had forbade her from speaking with her mother, and had objected to her returning to Pakistan for the funeral, ostensibly because of the cost, so her brother provided her $5,000.00, so that both she and D.K. could travel there, explaining she had wanted to take D.K. along because she was his primary caregiver. According to the respondent however, the petitioner refused to permit their son to travel, so she returned to Pakistan by herself, but did not arrive in time for the funeral. [148] The respondent testified she has one sister and four brothers. One of her brothers resides in Saskatoon, and has daughter of his own, with whom they visit from time to time. One of her brothers is in Italy, while another resided briefly in Fort McMurray. She described her relationship with her own family as good, and noted they had contributed to the cost of her honeymoon and other expenses, and had continued to support her when she and the petitioner immigrated to Canada. She denied the petitioner’s assertion that she did not have contact with her own family, and testified that one of her brothers had lived with them for month after they came to Canada. [149] She acknowledged that she had applied to immigrate to Canada prior to marrying the petitioner, but denied their marriage had assisted her application, adding that her parents had paid approximately $25,000.00 for her to immigrate to this country. [150] She described the petitioner as nice and good person, and maintained that she admires his truthfulness, and respects him, and the fact that he did not try to manipulate her. She confirmed they met while working in the hospital, and added they did not live together prior to their marriage. She recalled they had small wedding, and conceded that her father did not attend, but maintained the rest of her family was present. [151] The respondent explained that she and the petitioner are from different Muslim sects, and while she considers herself to be Muslim, in Pakistan her sect is not recognized as such. She suggested that religion has been significant issue in their relationship, not initially, but as the marriage progressed. She maintained the petitioner had pressured her to convert, and while together, they had paid religious tutor to meet with D.K. each month. She also claimed that the petitioner would become upset when she would touch his holy book. Following their separation, the respondent put an end to all of the religious instruction, and suggested that it should be up to D.K. to decide. [152] Like the petitioner, the respondent refers to their son, D.K., as D****. She recalled that following his birth, she remained at home, in Pakistan, and saw her parents regularly. Upon immigrating to Canada, she initially worked on an election campaign for few weeks, and only left D.K. when he was sleeping, as it was temporary, part-time work. She did concede however that the petitioner made bottles for D.K. during this time. [153] She confirmed she is not currently licensed to practice medicine in Canada, explaining that, although she successfully completed two of the necessary exams in 2011, by 2014 English proficiency had also become requirement. The respondent advised she has applied for residency on numerous occasions, but not outside of the province because, according to her evidence, the petitioner is opposed to this. According to the respondent, there are multiple applicants for every vacancy in Saskatchewan, but she could find employment as general practitioner in another province within few months if she were permitted to relocate. She added she would also be interested in enrolling in the study to practice program, but maintained that in Saskatchewan, it would take her up to three years because of the demand, as opposed approximately nine months in another province. [154] If she were to obtain residency, she noted, the schedule would be demanding perhaps as much as 50 to 60 hours per week. As such, it is her intention to become licensed without residency, so she might avoid night shifts and the like. [155] In Pakistan, she confirmed, both she and the petitioner had practised medicine. The petitioner, she claimed, told her that if he could not obtain residency in Canada, he would return to Pakistan to practice medicine. As such, they agreed he would do his residency first, and while the petitioner was writing exams and undertaking the rigours of that residency program, the respondent would care for D.K. [156] She acknowledged that the petitioner does indeed love and care for D.K., but maintained he was often busy with work or studying. As result, according to her evidence, the petitioner only cared for their son couple of hours per week while they were together. She claimed the petitioner would not allow her to work because he wanted her to care for D.K. while he slept or worked and further, that the petitioner would not permit her to have friends. According to the respondent, she had proposed at one point that D.K. attend daycare few hours per day, so she might also work, but the petitioner refused. [157] While the family resided in Vancouver, she recalled, they changed residences four times to accommodate the petitioner’s employment. Thereafter, she maintained, the family had moved from Vancouver to Saskatoon, then to Ottawa and back to Regina, all in furtherance of the petitioner’s employment. [158] The respondent testified she did not stay in Ottawa because her relationship with the petitioner was deteriorating, and explained she had been ready to leave in any event when an issue arose over the petitioner’s outstanding contract with Saskatchewan Health, and he returned to the province. [159] According to the respondent, she and the petitioner separated four times. The first was in 2012, when she left to return to Pakistan, ostensibly because of stress and to refresh her practice. She stayed there with D.K. for approximately two months with, according to her evidence, the consent of the petitioner. [160] She claimed that, in 2012, the petitioner slapped her in front of D.K. According to the respondent, D.K. instructed her to call 911 or he would, but she refused to do so because it would negatively affect the petitioner’s career. She explained she flew to Norway with their son to study for her exams, and to be away from what she described as the “drama”. When she had completed her exams in March 2012, she explained, she went to see physician. According to the respondent, this was the only occasion on which D.K. personally observed any physical abuse but, she asserted, their son had been personally present for what she described as almost daily verbal abuse and loud voices. [161] The respondent alleged that in 2007 the petitioner had twisted her finger. She testified she has also consulted with relationship counsellor and that in 2013, she was referred to the domestic violence unit. At one point, she explained, she did not permit the petitioner to see D.K. at all for months because she had been instructed not to by the domestic violence counsellor. [162] She also alleged the petitioner had assaulted D.K. on two separate occasions. Once, she recalled, in October in Regina, she was getting out of the shower and observed the petitioner to be staring at D.K., whom she claimed, was shivering and calling for her. She also claimed that, in 2013, the petitioner struck D.K. with his hand and added that D.K. told her that the petitioner had also struck him with shoe in Ottawa, when he spilled the petitioner’s tea. [163] The respondent confirmed that she had left D.K. in the petitioner’s care in April and May 2015. When she returned, she claimed, it was “terrible”, D.K. presented as quiet, scared and fearful, and that he cried terribly. The next day, she took D.K. to see school counsellor, but that individual was not available. She testified that D.K. told her he wanted to die. According to the respondent, she intended to take their son to see doctor, but the petitioner had not returned his health card for eight days. [164] She has since taken D.K. to see counsellor five times. [165] The respondent was referred to copies of D.K.’s report cards, confirmed that these report cards were available to both parents, and added that the preceding year the petitioner obtained copy. According to the respondent she communicates regularly with D.K.’s teachers, both in person and by email, and occasionally by phone. [166] D.K., she recalled, was nine months old when the parties came to Canada. In Pakistan, she had cleaners and nannies, but when they immigrated, initially she had no help. When they moved to Saskatoon, they had some assistance for few months, for three to four hours off and on while she was studying for her exams. This lasted until 2012 when the family moved to Ottawa. [167] The respondent testified that she and the petitioner had discussed the prospect of placing D.K. into child care, in part to help him socialize with other children, as there were few children around their home. According to the respondent the petitioner refused to consider retaining outside help and insisted that the respondent could best care for their son. [168] She recalled that D.K. first attended Montessori preschool, which was expensive but it was the petitioner’s preference. According to the respondent, she noticed bruises on D.K. during this time, so she spoke with the teachers at the preschool, and it stopped. [169] Their son, she recalled, was not well socialized at the time, and was timid with other children, so she tried to arrange play dates. She also enrolled him in multiple activities, so he would be exposed to other children. [170] The respondent maintained that her communications with D.K.’s teachers were always in response to an educational or socialization issue, and estimated they spoke as often as 50 to 60 times per year, or three to four times per month. [171] When she returned from Pakistan in June 2015, the respondent was in contact with D.K.’s teachers regarding his homework and well-being. She recalled that two of the teachers had initiated this contact with her by email, complaining of missed assignments and homework. According to the respondent, this had never been an issue before. [172] The respondent insisted she always ensures D.K.’s homework is done, even on those weekends when he is with the petitioner whom, she claimed, fails to do the same. She described their son as very competitive and explained that, when he does not have his homework completed, it affects his confidence and self-esteem, that he begins forgetting things like his gloves, loses any interest in eating or talking, and becomes, in her words, very introverted, depressed and suicidal. [173] The respondent described their son as being of above average intelligence, and explained that he used to enjoy swimming and soccer as well as basketball, and now enjoys riding his bike and playing with friends. [174] She claimed that D.K. gets along with all of the kids at school all the time, and described him as very happy kid, but also suggested he was bullied in every class, explaining that although no one speaks of it, she observes it in his behaviour, and then approaches his teachers. The respondent offered that, as nothing has changed for D.K. at home, and she does not permit him to interact with other children until she has had an opportunity to meet with their parents and assess them. [175] She described her parenting style as the antithesis to that of the petitioner, and insisted D.K. does not need to be disciplined, as he is already very disciplined child. [176] The respondent explained that she prefers to communicate with the petitioner via text or email and not by phone. She has purchased cell phone for D.K., which she leaves at his school because he is not allowed to take the one the petitioner provided to him. While he does not have home phone, the petitioner, she noted, does have home security system, but D.K. does not know the code. [177] The respondent filed series of photographs of D.K. and others, including friends and distant family members, participating in variety of activities such as wedding, and science camp in the summer of 2014. She lamented the fact that the petitioner has maintained custody of all of their photographs and videos of D.K.’s young childhood. [178] The respondent expressly denied ever having threatened to return to Pakistan, but insisted the petitioner had made it clear to her that if she wanted to leave she would do so without D.K. [179] She described typical routine with their son, and advised he ordinarily wakes around 6:00 a.m., and asks to cuddle with her. They usually lie in bed until approximately 7:00 a.m., when D.K. gets up, brushes his teeth, eats breakfast and does his homework before going off to school. The respondent prepares lunch for him to take. D.K. ordinarily finishes school at 3:30 p.m., and when he returns home, he lies down and watches some television. According to respondent, D.K. used to go out and play after school, but over the past few months, he is too tired and simply watches television before they sit down to supper. [180] According to the respondent, D.K. does not like having shower, and she claimed she can tell he does not have one, or brush his teeth while in the care of the petitioner. She also claimed that D.K. loves sledding, but when he is at the petitioner’s home, he does not get to. [181] She testified that D.K. told her he was only allowed to be with his friends five or six times in total while he was living with the petitioner, and she suggested that in her opinion, the child the petitioner did allow D.K. to play with was disruptive. [182] According to the respondent, D.K. changed schools so often because the petitioner changed jobs, and they were required to move. [183] She alleged the petitioner does not always exercise his scheduled access, as he sometimes works. She also recalled that she had asked the petitioner to forgo one regularly scheduled Wednesday afternoon access the preceding summer, so she could travel with D.K. to Ontario, but he [184] The respondent explained that she is opposed to shared parenting, 50/50 schedule, because in her opinion, it would hold D.K. back in his education and keep him from his friends, isolating him in the absence of phone. She insisted that such an arrangement would be “disaster” for D.K., and he would end up doing drugs or committing suicide. [185] She claimed that D.K. is reluctant to spend time with the petitioner, and that he cries because he prefers to be with his friends. For these reasons, the respondent proposed that the petitioner’s access with their son be restricted to alternating weekends only. [186] As for their property and debts, the respondent advised that she is only aware of two loans and suggested that the debt which the petitioner had incurred to practice medicine should be his alone, maintaining that she should not bear responsibility for this expense, as she too will incur costs associated with practising medicine. [187] She explained that her two-month trip to Pakistan was financed with loan of approximately $8,000.00, which she secured from family and friends, because the petitioner refused to give her any money. She went on to note that she did not receive child support for those two months, notwithstanding that while in Pakistan she still had expenses associated with her car and rent in Canada. [188] The respondent denied that she will be obliged to return to Pakistan, but advised she may have to return there temporarily to refresh her license. She noted she still has family in Pakistan, including two siblings and insisted that if she were to take D.K. anywhere, she would return him because, according to her evidence, he is happy in this country. [189] With respect to the divorce, the respondent confirmed that she is in fact the respondent in the action, that she was served with the petition and has filed an answer and amended answer. She also testified to having lived in Saskatchewan for approximately eight years, and that she and the petitioner had separated on or about April 2, 2014 for the last time. She confirmed she has no intention to reconcile as this is not possible. [190] In the course of cross-examination, the respondent was confronted with her financial statements, and agreed that in 2014 and 2015, she received the child tax credit. With respect the educational expenses claimed by her in the amount of $5,000.00, the respondent explained this expense was on account of her having to repeatedly take the necessary English proficiency test, and the cost of tutor. As for the additional educational expenses in the amount of $15,000.00, claimed in her subsequent financial statement sworn October 28, 2015, she explained this included the cost of travelling to Pakistan to refresh her practice certificate, taking exams and the like. [191] She conceded, although reluctantly, that while in Pakistan she earned approximately $400.00-$500.00 per month working while refreshing her practice certificate, and allowed that this income was not accounted for in her financial statement because, according to the respondent, she was unsure if it needed to be. She also allowed she did in fact receive spousal support while away in Pakistan for two months. [192] With respect to her property statement dated July 8, 2014, she acknowledged having identified only one bank account, but agreed that in fact, the parties have another account with RBC, which is jointly held and which she enjoyed access to. She also agreed that the petitioner had paid approximately $32,000.00 to purchase vehicle for her. [193] The respondent confirmed that she did not obtain residency in Pakistan when she and the petitioner met, but instead continued to work as general practitioner, advising she had already applied to come to Canada, and subsequently joined him in applying after they were married. [194] When asked what she had done to advance her medical career, the respondent recalled that she had begun studying in 2009, after the petitioner obtained his residency. She had also participated in research project just prior to the passing of her mother, but left this project to travel to Pakistan in 2011. When she returned, she returned to the project but, according to her evidence, she ultimately quit because the petitioner alleged her co-worker was her boyfriend. [195] The respondent testified she had applied for number of positions, but had not been successful because, again according to her evidence, they did not believe she would stay. She advised she is on the waitlist to work in Saskatchewan, but admitted that if the court were to permit her to relocate, she would do so and seek opportunities in other provinces, where the waitlist would be shorter, perhaps as little as nine months to year. She also suggested that if she were to accept an opportunity elsewhere, it would likely be three year term and that, if necessary, she would return thereafter to the province. [196] The respondent maintained that she is confident she will be permitted to practice as general practitioner, and prefers to pursue the ready to practice option, so she is not required to work long hours in residency practice. She testified that, when she studies, she does so around D.K.’s [197] She claimed she is not opposed to the petitioner caring for D.K. when she cannot do so herself, and allowed that when the petitioner was home, he did in fact spend some time with their son. She acknowledged that the petitioner’s hours of work are now much different than they had been, and that he now has more time to spend with D.K. [198] She confirmed she had been out of the country from the first week of April until the first week of June 2015, and that during this time, D.K. resided exclusively with the petitioner. The respondent also acknowledged that she had left D.K. in the petitioner’s care for some weeks when she previously returned to Pakistan. [199] She also agreed that they had moved back in with the petitioner in February 2014 because D.K. had expressed desire to live with him. The respondent maintained that D.K. was suicidal while at the same time conceding that when she left, he remained with the petitioner because he advised her that he wanted to. [200] As for D.K.’s report cards, she agreed that the Grade report card made no mention of him missing assignments, but insisted this was because she made sure that they were submitted when she returned. She did allow that, had she been permitted to take D.K. with her to Pakistan, she would have taken him out of school for that time, but she insisted this would have been preferable to leaving him with the petitioner and, again in her words, making him suicidal. [201] The respondent admitted having previously refused to allow the petitioner to take D.K. with him to see his family in Toronto, explaining she had concerns for D.K.’s safety, as the petitioner’s family are of different religion. She allowed that the petitioner had in fact provided his consent for D.K. to travel to all of the places depicted in the pictures the respondent previously filed in her evidence-in-chief. [202] She confirmed that the previously described assault, wherein she testified that D.K. personally saw the petitioner slap her, was the only such incident. The respondent also conceded that she had not actually witnessed the petitioner strike D.K. with shoe, despite having previously sworn an affidavit to this effect. [203] As for D.K.’s counselling, the respondent allowed she had not informed the petitioner of the same, claiming they do not communicate while at the same time acknowledging that they have communicated by text message. [204] She denied having ever complained that D.K. was being bullied by teacher, and explained it was in fact student. While insisting their son had many friends, she acknowledged that there were concerns from time to time. She insisted that it is D.K. who determines who he will play with, and recalled that he asked that one of the children be removed because he was bullying him. [205] The respondent testified that when D.K. is with her, he typically does his homework for one hour each evening and one hour in the morning, and complained the petitioner does not do what he says he will when it comes to helping their son complete assignments. [206] She also maintained she is concerned about their son’s personal safety when he is with the petitioner, insisting that he is punishing D.K., and torturing him. She claimed she had informed the petitioner that D.K. was depressed and suicidal when they were living together, but then retracted, and suggested he was not in fact suicidal, just sensitive. She also claimed D.K. does not change his mind but rather, the petitioner changes it for him. [207] With respect to D.K.’s childhood photos, she agreed she has the computer, which is password-protected, and does not know what photographs are on it. She also agreed she has never made written request for these items. [208] The respondent explained that she would like more weekend access time with D.K., and reiterated that the petitioner’s access should be reduced to alternating weekends. She allowed that it is beneficial for D.K. to have relationship with the petitioner, but suggested he is not good parent, and that decreased parenting is warranted because of her concerns for D.K.’s personal safety and his social development. She agreed that, if the court were to permit her to relocate, it was her intention to do so. [209] The respondent also agreed that she has, in the past, made allegations that the petitioner has threatened her and has sexually touched D.K., but admitted she has never laid formal charge. Julia Rooks [210] The respondent also called Julia Rooks to give evidence on her behalf. Ms. Rooks, who gave her evidence by telephone, testified that she is familiar with both the petitioner and the respondent, explaining that the couple had hired her in the summer of 2009 to assist with D.K.’s care, so that the respondent could spend more time studying for her medical exams. According to the witness, she initially worked approximately three to four hours per day, Monday to Friday, for approximately three months during that summer, and thereafter on an ad hoc basis, typically one or two times per week for few hours at time. She recalled that when she was there, the petitioner was usually working, and was rarely home. [211] Ms. Rooks described D.K. as smart, sensitive and observant, and very obedient but also very timid child, who did not like to make eye contact. She added that when she would bring D.K. to her own home to play, he appeared to be fine in the company of her mother, but timid around her father. [212] She described the petitioner as polite, but conceded that she and he were never familiar. According to her evidence, the petitioner seldom inquired about D.K. to the same extent as the respondent, who would regularly query her about D.K.’s bowel movements and what they had done that day. [213] She described the relationship between D.K. and the petitioner as unusual. She maintained that D.K. appeared nervous when the petitioner was home, and she did not observe any physical affection between the two of them. She recalled that on one occasion while at the park, D.K. did not want to go home because he had wet his pants, and he pleaded with her not to tell the petitioner about it. She testified she had also heard him ask the respondent not to tell the petitioner about things that happened in his absence. [214] By contrast, according to Ms. Rooks, D.K. had very close relationship with the respondent, and he would be excited when she was home. [215] The witness testified she knows the respondent fairly well, from the time she worked with her, and described the respondent as very sensitive, emotional and caring person. [216] Ms. Rooks last saw D.K. and the respondent in July 2015, when they had visit in Regina. Prior to that, she saw them twice in 2014, including once in Calgary. She indicated they also speak regularly by phone. [217] Overtime, according to the witness, D.K. has become better at socializing with other children and in her opinion, he appears less shy and timid. She recalled that when she saw him the preceding summer, D.K. was off playing in the street with his friends something he would not have done when he was younger. [218] Under cross-examination, the witness confirmed she worked for the petitioner and respondent, caring for D.K., over period of approximately three years in total and that, in addition to the three to four hours per day, Monday to Friday, she also sometimes worked weekends for them, perhaps every two to three weeks while the petitioner was working as resident. She acknowledged that her sister was also resident doctor, and agreed that the work load can vary from time to time. She also conceded she had not observed every interaction between D.K. and the petitioner while she was in their employ, nor has she had an opportunity to observe their interactions recently. [219] She agreed that, in her experience, children’s eating habits change over time, and further, that D.K. still does not make eye contact readily. She described her own family as friendly and agreed there would be no reason for D.K. to appear timid around her father. [220] The witness also acknowledged she is close friend of the respondent, that she likes her, and wants to help her. She agreed she has served as the respondent’s passport reference, and has done other things for her as well. She also acknowledged she has had no meaningful contact with the petitioner and does not really know him the way she knows the respondent. Delmer Harrison [221] The court also heard from Delmer Harrison, marriage and family counsellor practicing at The Caring Place in Regina. Mr. Harrison testified he earned Master of Arts degree in Christian Ministry with major in Marriage and Family Counselling in 2008 from the Briercrest seminary, and completed an internship between June 2006 and March 2008. He has been providing counselling services for nine years. [222] According to the witness, the respondent first consulted him upon her return to the country after trip overseas. She claimed the parties’ son had been crying uncontrollably, and she wanted the witness to “explore why D.K. cried like that”. In total, he met with D.K. on five or six separate occasions and confirmed that the focus of these sessions was primarily “D.K.’s experience at his dad’s and how he had been affected by that”. He recalled the respondent advised him that she had primary custody of D.K., and the petitioner’s access was limited to three weekends per month. [223] The initial counselling session took place on June 8, 2015. According to the witness, D.K. presented as anxious and fearful, but was cooperative. Mr. Harrison testified that, when asked what he thought of the two months he spent with the petitioner, D.K. initially told him it was okay, and that he liked the fact that he was able to play outside. According to Mr. Harrison, D.K. later complained that he was not allowed to go outside much while staying with the petitioner, and was upset about that. When the witness asked if it was because he had homework to do, D.K. complained the petitioner would become impatient and yell at him if he did not understand or complete his schoolwork. D.K. also said he missed school while staying with the petitioner, either because he did not have his homework completed or because he was not feeling well. [224] Referring regularly to his notes, the witness testified D.K. also told him the petitioner and respondent yelled at one another lot, and complained the petitioner “acts like he is good person, but he is not”. During the session, the witness testified, D.K. confided that the petitioner would yell at him and at the respondent. When asked specifically how he felt about the way the petitioner treated the respondent, Mr. Harrison recalled D.K. to say “in my mind I’m really mad about it” and to describe his father as ”lying conniving psychopath and fraud”. [225] Mr. Harrison noted that the respondent was also present throughout this first counselling session. [226] He recalled that second session took place on June 18, 2015 and that the first two sessions were summarized by him in letter prepared some time later, on July 17. According to the witness, during the June 18 session D.K. expressed great deal of anger toward the respondent, allegedly because she did not leave the petitioner earlier and told her “you’re liar like dad”. [227] In giving his testimony, Mr. Harrison found it necessary to rely heavily upon the letter prepared by him on July 17, 2015, almost month after the two initial interviews, and suggested D.K. was upset that no one had intervened to prevent him from staying at the petitioner’s home. [228] Again, Mr. Harrison confirmed the respondent was present for most if not all of this session as well. [229] The next session, he explained, occurred on September 28, 2015, and was again focused primarily on the two month period that D.K. resided with the petitioner. Notably, Mr. Harrison testified that on this occasion, the respondent provided him with written list of nine questions which she instructed him to ask D.K. [230] According to Mr. Harrison, D.K. presented as less angry on this occasion, and much of what he disclosed was duplication of things said in the first two sessions. He did recall that D.K. claimed the petitioner yelled at him twice or maybe three times per week about homework when he did not understand, and that the petitioner would begin to help him, but would eventually give up and walk away in frustration. When the witness specifically asked why he had lost interest in school, D.K. explained that he still enjoyed school but his marks had suffered because of the petitioner. He also continued to complain that he had not been able to play with his friends, and he felt ignored while living at the petitioner’s home. Mr. Harrison recalled the respondent had provided him with two emails purportedly from D.K.’s teachers, suggesting he had not completed his homework assignments on time. [231] Mr. Harrison characterized this third counselling session with D.K. as being all about “asking the nine questions and recording his responses”. He recalled in particular that the respondent had instructed him to specifically ask D.K. if the petitioner followed him around; an assertion D.K. denied. When asked if he had ever been abused by the petitioner, D.K. claimed his father had hit him “in 2013, think in June”, but not since. According to the witness, D.K. then went on to contradict himself and to claim the petitioner would hit him “randomly at times”. [232] The witness testified he had also asked D.K. if he was scared to go to the petitioner’s, to which he replied “maybe little bit”. Mr. Harrison went on however to add that D.K. subsequently clarified he may be little scared about what may happen in the future, but he was not scared at that time. [233] The witness testified he met with D.K. on three subsequent occasions, on October 5, October 9, and October 20, 2015 respectively. He suggested D.K. appeared to be doing better in the last few sessions, but could not say if he would benefit from further counselling. [234] Under cross-examination, Mr. Harrison advised he was unaware that the parties enjoyed joint custody of D.K., and reiterated that he was led to believe otherwise by the respondent. He explained that, if he had known this, he would have sought the consent of the petitioner as well, and maintained that when he provided the consent form to the respondent, he had suggested it should be signed by D.K.’s father as well, but it was not. According to the witness, the respondent assured him the petitioner had previously signed consent for the school board, so she did not need to obtain his consent for D.K. to participate in these counselling sessions. Despite never having obtained the consent of the petitioner, the witness agreed that the principal focus of these counselling sessions was D.K.’s relationship with his father. [235] Mr. Harrison also confirmed that, in addition to the six counselling sessions with D.K., he also undertook some individual sessions with the respondent. He agreed that although the respondent advised him D.K. had previously been to see other counsellors, he did not consult with any of them. [236] The witness acknowledged further that the letters he had written after the sessions, which he referred to when providing his testimony, had been prepared at the request of the respondent, and addressed “to whom it may concern” because he suspected they might be intended for use in legal proceeding. Mr. Harrison allowed he never provided copy of these letters to the petitioner. [237] He agreed the respondent advised him at their first meeting that she and the petitioner were scheduled to go to trial in September. It was his recollection that the respondent had returned to the country on Saturday, and had subsequently brought D.K. in to see him on the following Monday. He confirmed that he first met with D.K. in June 2015, and did not see him again until September 28. He confirmed further that, as of October 9, he was made aware by the respondent that the trial was schedule to take place later that month. [238] With regards to D.K.’s statement that his father was “lying, conniving psychopath” Mr. Harrison readily agreed it was unusual language for child of that age. He also reiterated that D.K. claimed both parents yelled at one another other lot and acknowledged that child’s perception of yelling might be something as simple as raised voices. [239] As regards the September 28, 2015 session, Mr. Harrison confirmed the respondent had provided him with list of nine questions to ask D.K. and confirmed further that these questions were put to D.K. by him exactly as framed by the respondent. He also agreed that the respondent was personally present for the entirety of the first two sessions. [240] While allowing that he considered D.K. to be the client, and maintaining that he takes “client centric approach” to counselling, Mr. Harrison conceded he took his instructions from the respondent. He confirmed that it was the respondent who brought D.K. to his counselling sessions, and agreed that D.K. may well have provided different answers to those questions had it been the petitioner who transported him there instead of the respondent. [241] He also agreed that the questions put to D.K. during the September 28, 2015 session were in relation to period of time several months earlier, while D.K. was staying with the petitioner, and he acknowledged it was his understanding that D.K. had subsequently been living primarily with the respondent during the summer. [242] Under further cross-examination, Mr. Harrison clarified that, previously testifying in-chief that D.K. was scared, these were not D.K.’s actual words but rather, what the witness took to be apprehension about the future. [243] The witness agreed with opposing counsel, that it is often inappropriate to ask questions of children in the same fashion as adults, and that one must take care in that respect, as children are often impressionable and eager to please, and their answers can be effected by their mood. [244] Mr. Harrison conceded he is under legal obligation to report any suspected abuse, and agreed he did not make any such report in this case. He also confirmed that in general, his professional association requires that he obtain the consent of both parents. [245] Finally, Mr. Harrison agreed that D.K. would have known he would be sharing information obtained during the sessions with the respondent, and further, that it was unlikely in the circumstances that he would have anticipated the information would be conveyed to the petitioner. He allowed that it was possible that D.K.’s comments and responses would have been much different had the petitioner been included in the process. Nonetheless, at no time did he request that the petitioner be present to participate in any of the sessions. [246] have no hesitation in concluding that the counsellor was generally credible witness, find his evidence overall to be unreliable. The counsellor permitted the respondent to be present during some of his sessions. Moreover, at least some of the questions he put to D.K. were provided to him by the respondent. Aria Ramdeo [247] The court also heard from Aria Ramdeo, self-described stay-at-home mother of an 11 year old son and year old daughter. Ms Ramdeo testified to having known the respondent and D.K. for approximately years and to having met the petitioner in passing at school, and only once formally. [248] Ms. Ramdeo explained she volunteers at most school events and recalled the respondent is typically there as well. She described the respondent as dedicated mother, outgoing, friendly and kind, and D.K. as little gentleman, sweet kind and good friend to both of her children. In her opinion the respondent and D.K. have good and affectionate relationship with lots of hugs. [249] She testified that D.K. and her son are good friends at school and often have play-dates together, typically at the park or at her home, some three blocks from the respondent’s. Both boys enjoy video and board games and hide and seek, and they play together on average once per week. [250] The witness also explained that her husband is of the Hindu faith, that they regularly participate in annual religious celebrations, and that the respondent and D.K. often attend. [251] Under cross-examination, Ms. Ramdeo conceded that D.K. has other friends as well, and that she has not had the opportunity to observe him in the company of the petitioner to the same extent that she has observed his inter-action with the respondent. Leslie Pominville [252] The respondent’s final witness was Leslie Pominville, teacher with the Regina Public School Division. Ms. Pominville testified that she has been teacher with the school division for 29 years, and knows both the respondent and the parties’ son, having taught D.K. for period of approximately six months while he was part of grades two and three split class at Argyle School, in 2012/2013. [253] Ms. Pominville described D.K. as sweet and eager to please. She also recalled him as noticeably timid, nervous and anxious, especially if she had to raise her voice with him or with the class. [254] She described the respondent as concerned and involved parent who regularly inquired about D.K.’s academic performance, socialization and the like, and recalled the respondent would email her or speak to her about her concerns when she attended to pick D.K. up at school. [255] The witness testified that on one occasion, the respondent contacted her upon learning that D.K. had been bullied in the boys washroom. According to Ms. Pominville, the respondent’s concerns were appropriate and justified in the circumstances. [256] She also recalled another incident wherein D.K., who remained at school for lunch, was chastised by the supervisor about his food choices and whether they were culturally appropriate. Again, the respondent contacted the witness, who addressed the matter with the lunch worker. [257] Ms. Pominville also interacted with the respondent at parent-teacher interviews. She could not recall the petitioner attending, but did recall he was present once to pick D.K. up after classes while he was her student. [258] She testified that D.K. left Argyle School when the family moved out of the school division, and he could no longer attend. She also explained that it is common for teachers to deal with parents who are separated or divorced, adding that, while these parents sometimes attend together, it is not uncommon for teachers to make arrangements to meet with them separately if necessary. She also noted that it is common place for teachers to prepare two sets of report cards, if asked. [259] Under cross-examination, Ms. Pominville confirmed she is no longer D.K.’s teacher, and he does not attend her school. Although she saw him on bike path the preceding summer, she has not seen him regularly since he attended at Argyle School. [260] She agreed it is not uncommon, even with parents who reside together, for only one of them to attend the parent-teacher interview. She also agreed that as teacher, there are times when she needs to raise her voice with her students. ANALYSIS Custody and Parenting [261] The statutory provisions which govern matters of custody and parenting reside in the Divorce Act, RSC 1985, (2d Supp) and The Children’s Law Act, 1997, SS 1997, C-8.2. The former directs, beginning at s.16(8): 16(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child. (9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as parent of child. (10) In making an order under this section, the court shall give effect to the principle that child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact. [262] The Children’s Law Act provides further: 6(5) When making an order pursuant to subsection (1), the court shall: (a) give effect to the principle that child should have as much contact with each parent as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person seeking custody to facilitate that contact; and (b) include in the order condition requiring any person who has custody of child and who intends to change the place of residence of that child to notify, as set out in subsection (6), any person who is granted access to that child or any other person who has custody of that child of: (i) the change; (ii) the time at which the change will be made; and (iii) the new place of residence of the child. nan In making, varying or rescinding an order for custody of child, the court shall: (a) have regard only for the best interests of the child and for that purpose shall take into account: (i) the quality of the relationship that the child has with the person who is seeking custody and any other person who may have close connection with the child; (ii) the personality, character and emotional needs of the child; (iii) the physical, psychological, social and economic needs of the child; (iv) the capacity of the person who is seeking custody to act as legal custodian of the child; (v) the home environment proposed to be provided for the child; (vi) the plans that the person who is seeking custody has for the future of the child; and (vii) the wishes of the child, to the extent the court considers appropriate, having regard to the age and maturity of the child; (b) not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as parent of child; and (c) make no presumption and draw no inference as between parents that one parent should be preferred over the other on the basis of the person’s status as father or mother. 9(1) In making, varying or rescinding an order for access to child, the court shall: (a) have regard only for the best interests of the child and for that purpose shall take into account: (i) the quality of the relationship that the child has with the person who is seeking access; (ii) the personality, character and emotional needs of the child; (iii) the capacity of the person who is seeking access to care for the child during the times that the child is in his or her care; and (iv) the wishes of the child, to the extent the court considers appropriate, having regard to the age and maturity of the child; and (b) not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to care for the child during the times that the child is in his or her care. (2) Unless otherwise ordered by the court, parent who is granted access to child has the same right as the custodial parent to make inquiries and be given information concerning the health, education and welfare of the child. (3) The right of parent who is granted access described in subsection (2) is not, unless the court orders otherwise, right to be consulted about or to participate in the making of decisions by the custodial parent. [263] Both Parliament and the Legislature of Saskatchewan have explicitly mandated that, while the court is to have regard for the maximum contact principle, and except to the extent that it is relevant, disregard any past conduct, the ultimate consideration remains the best interests of the child. [264] The petitioner has petitioned the court for joint custody of D.K. In her initial answer and counter petition, and subsequent amended answer and counter petition, filed January 5, and 6, 2015 respectively, the respondent confirms that she does not oppose the granting of such relief. [265] Custody is defined in s. of The Children’s Law Act as the “personal guardianship of child” and includes the “care, upbringing and any other incident of custody having regard to the child’s age and maturity”. Section of The Children’s Law Act goes on to confirm that: 3(1) Unless otherwise ordered by the court and subject to subsection (2) and an agreement pursuant to subsection (3), the parents of child are joint legal custodians of the child, with equal rights, powers and duties. [266] In the absence of an agreement or court order to the contrary, the petitioner and the respondent are presumed to be joint custodians of their son, D.K. No such agreement exists in this case, and my interim order of August 7, 2014, while providing for interim parenting, did nothing to displace that presumption. [267] In the circumstances, there is nothing to suggest that maintaining joint custody would be contrary to D.K.’s best interest. [268] As for parenting, the court’s interim order of August 7, 2014 provided that D.K. would continue to reside primarily with the respondent, while the petitioner would enjoy specified access the first three weekends of each month, from Friday after school until Sunday evening. In the event his scheduled parenting time fell on long weekend, the access period would be extended accordingly to include the Friday or Monday, as the case may be. [269] Both parties advocate for variation of this interim arrangement. The petitioner submits the current parenting plan is not in D.K.’s best interest, as it fails to maximize his contact with both parents. He proposes shared parenting arrangement which would see each of the parties care for their son on weekly rotation. [270] The respondent, by contrast, argues D.K. requires routine and predictability, that she has always been his primary and psychological parent, and that the petitioner’s access should be reduced to parenting on alternating weekends. According to the respondent, shared parenting regime would be disastrous for D.K. She insists it would hold him back at school, isolate him from his friends and ultimately, cause him to do drugs or commit suicide. [271] To begin, the evidence establishes that the petitioner and respondent are both loving, capable parents, each of whom has demonstrated the capacity to care for D.K. while he is in their respective care. [272] accept that the respondent has been D.K.’s primary caregiver throughout, and that she has been the one charged with meeting the majority of their son’s needs. As of trial, she had yet to return to the practice of medicine, and her evidence, which accept, was that she hoped to do so in the future, but that she planned to avoid the long hours associated with residency. [273] also accept that during their relationship, the petitioner assisted in caring for D.K., albeit to lesser degree, and that since their separation he has, on occasion, cared exclusively for D.K., most recently while the respondent was overseas for two months in 2015. His uncontroverted evidence is that his work schedule is now more flexible and accommodating of his parenting obligations than had previously been the case. According to the petitioner, he is now able to schedule his hours of work so that he can be home with D.K. before and after school, save only for the last week of each month, when he is obliged to remain at the hospital from early in the morning until approximately 6:00 p.m. each evening. [274] While the petitioner did not have driver’s license at the time of trial, accept that he is working toward obtaining one, and note that in spite of this, he managed quite capably to get D.K. to and from school and elsewhere from early April until early June 2015, while the respondent was out of the country. [275] Moreover, while she asserted under cross-examination that the petitioner is not good parent, during her examination-in-chief, the respondent described him as good person, who genuinely loves and cares for their son, and whose capacity for truthfulness she admired. [276] The respondent also lamented that the petitioner could not be relied upon to ensure that D.K. completed his homework assignments, and testified she had been contacted by his teachers about the issue upon her return from Pakistan. She allowed that D.K.’s Grade report card made no mention of any missed or late assignments but insisted this was because she had ensured they were completed upon her return. [277] The petitioner testified the missed assignments were due to the fact that D.K. had forgotten to bring his agenda home from school. In any event, am not persuaded on the evidence before me, that the issue is as significant as the respondent would suggest, or that it bears in any real sense upon the capacity of either party to care for D.K.’s day to day needs. [278] The petitioner and respondent have each established adequate residences within reasonable proximity of one another, and of D.K.’s school, local park and other amenities. [279] Both parents have enrolled him, and ensured his participation in various extracurricular activities. [280] While the parties belong to different sects, they are both practitioners of the Muslim faith. To the extent that the petitioner and respondent each subscribe to nominally different teachings and practices, they should strive to celebrate and to share those differences with D.K., rather than attempting to suppress and delegitimize the other’s belief system. [281] The court heard little of the parties’ respective plans for D.K.’s future. The petitioner testified he plans to obtain his driver’s licence, and now has more flexible work schedule. The respondent testified that she too would like to advance her own career, that her prospects for doing so would be better elsewhere and, if permitted by the court, that she would consider relocating out of the province with D.K. for that purpose. [282] Although D.K. was only 10 years old at the time, and did not testify at trial, the court was provided with some evidence, albeit conflicting in material respects, as to his purported wishes, as well as his personality, character, and perceived psychological, social and emotional needs. [283] The petitioner described D.K. as an intelligent, pleasant and generally happy boy who enjoys the park, going to movies, swimming and biking, playing Legos, soccer and spending time with his friends. [284] He testified that in the past, D.K. has expressed desire to have his parents reconcile, but that he speaks of this less now. He also claimed that D.K. has told him he would like to spend more time with his father, and that he would prefer to live with each of his parents on weekly rotation. [285] The petitioner noted that on two previous occasions, when the respondent left with their son, D.K. asked to return to live with him and that D.K. did in fact reside with him exclusively for two months while the respondent was overseas, from April until June 2015. [286] Ms. Multani, like the petitioner, described D.K. as good boy charming and generally happy, who appeared to enjoy his time with the petitioner. Despite having personally observed his interaction with the petitioner on number of occasions, both in the park and at her home, she never detected any reluctance or uneasiness on D.K.’s part. [287] The respondent also described D.K. as very happy boy of above average intelligence, who enjoys swimming, basketball, soccer and riding his bike. While asserting, however, that he gets along well with all of his classmates, all of the time, she also claimed that he can be timid with other children, and that he was regularly bullied at school. She went on to assert that D.K. is very competitive, and when he does not have his homework completed, he becomes introverted, depressed and even suicidal. [288] While insisting that D.K. is reluctant to spend any time with his father, that he prefers to be with his friends, and cries uncontrollably when he is forced to be with the petitioner, the respondent allowed, under cross-examination, that she is not opposed to the petitioner caring for their son when she is unable to do so, and acknowledged further that D.K. had asked to move back in with his father in February 2014. Despite insisting that D.K. was suicidal, the respondent agreed that he remained with the petitioner when she returned for two months to Pakistan, because he wanted to. [289] D.K.’s long-time caregiver, Julia Rooks, described him as smart and observant, but also timid and sensitive. She explained that, while he appears, from her most recent observation in July 2015, to have become less shy, he seldom makes eye contact. [290] She also suggested D.K. would, at times appear nervous in the company of the petitioner, but allowed he had similar reaction to her own father, for no apparent reason. By contrast, she described D.K.’s relationship with the respondent as close, and recalled he would be noticeably excited when she was home. Ms. Rooks did concede however that, while she considers the respondent to be good friend, she has had little contact with the petitioner and does not know him well. [291] Counsel for the respondent submits that further evidence of their son’s wishes, personality, character and emotional, social and psychological needs may be found in the testimony of Delmer Harrison, the marriage and family counsellor who interviewed D.K. at the request of the respondent. [292] Counsel for the respondent did not seek to qualify Mr. Harrison as an expert, and he was not permitted to offer an opinion on any of the matters before the court. Rather, with the consent of counsel for the petitioner, Mr. Harrison was permitted to testify as to what he had personally heard and observed in the course of his meetings with D.K. [293] Mr. Harrison testified he met with D.K. numerous times. He recalled D.K. would occasionally express anger and frustration with the petitioner and the respondent, and accused them both of yelling. He also claimed that D.K. once described his father as “lying, conniving psychopath and fraud”. [294] While found Mr. Harrison to be generally forthright and credible witness, the circumstances of his interview sessions with D.K. seriously undermine the reliability of his evidence. [295] Credibility must not be confused with reliability. As Watt J.A. explained in H.C., 2009 ONCA 56 (CanLII) at para 41, 241 CCC (3d) 45: 41 Credibility and reliability are different. Credibility has to do with witness’s veracity, reliability with the accuracy of the witness’s testimony. Accuracy engages consideration of the witness’s ability to accurately i. observe; ii. recall; and iii. recount events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not proxy for reliability: credible witness may give unreliable evidence: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514, at 526 (C.A.). [296] In giving his testimony at trial, Mr. Harrison was obliged to rely heavily upon correspondence he had authored sometime after his interviews with D.K., at the behest of the respondent and in circumstances where he acknowledged he suspected the letters would be subsequently used in court. [297] This, coupled with the suspiciously age-inappropriate nature of D.K.’s description of his father, the fact the witness had been misled by the respondent about the parties’ custodial status, his own admission that he permitted the respondent to be present in the same room for some of the sessions and, on one occasion asked D.K. series of questions prepared for him by the respondent, leave me with absolutely no confidence whatsoever in the reliability of his evidence. [298] Ms. Ramdeo described D.K. as little gentleman and good friend to her own children. She had little to offer on the matter of D.K.’s wishes, save to suggest that he and the respondent appear to have good, affectionate relationship. She admitted she has not had the same opportunity to observe D.K.’s interaction with the petitioner. [299] D.K.’s former teacher, Ms. Pominville, recalled he was sweet child, but eager to please, and at times, timid and anxious, especially on those occasions when it became necessary for her to raise her voice with him or other members of the class. She also confirmed that he had been bullied at school on at least two occasions during the time she taught him in the 2012/2013 academic year. [300] The evidence confirms that D.K. is a smart, sometimes sensitive but generally happy child. While accept that he is, at times, unhappy and anxious, given the dysfunctional way in which the parties have chosen to interact with one another, often in the presence of their son, this is hardly surprising. [301] The assertion that he is suicidal or depressed is serious one, and the court must take care not to causally disregard such claims where child’s mental health is legitimately at risk. That however, is not the case here, as there is no credible evidence to suggest that D.K. is, as the respondent repeatedly alleged, suicidal. Indeed, she was the only witness to make such claim and in the course of cross-examination, she retreated from that assertion, and maintained that he is just sensitive child. [302] Both the Divorce Act and The Children’s Law Act explicitly prohibit consideration of past conduct, save and except to the extent that it is relevant to party’s ability to parent. To the extent that such acts are perpetrated upon or committed in the presence of child, incidents of assault and domestic abuse are clearly relevant. The respondent herein testified that the petitioner was verbally and emotionally abusive, and that he physically assaulted her by twisting her finger in 2007 and, on separate occasion in 2012, by slapping her in the face. She also maintained that the respondent assaulted D.K. on two separate occasions, but allowed she had only personally observed one incident, in 2013, when the petitioner allegedly struck D.K. in the head. [303] The petitioner denied these allegations, and swore that it was the respondent who had been abusive during their marriage. [304] In assessing the veracity of her claims, I note the respondent acknowledged, under cross-examination, that she had also previously accused the petitioner of threatening her and of sexually assaulting D.K., although she never made a formal complaint. Despite these allegations and in particular, her claim that the petitioner had physically and sexually assaulted their son inthe past, she nonetheless left D.K. in the petitioner’s exclusive care for extended periods of time when she travelled to Pakistan and then to Dubai. The evidence in this case simply does not support the respondent’s allegations. [305] In furtherance of his claim for shared parenting, the petitioner places considerable emphasis on the maximum contact principle which, he argues, militates in favour of parenting arrangement which would see D.K. cared for by each of his parents on weekly rotation. [306] The respondent, by contrast, asserts she is D.K.’s primary caregiver and psychological parent, and that he should continue to reside primarily with her and spend alternating weekends with the petitioner. [307] While the Divorce Act and The Children’s Law Act both explicitly direct that child should enjoy as much contact with each parent as is consistent with his or her best interests, the maximum contact principle, as it has come to be known, though mandatory, is not absolute (Gordon Goertz, 1996 CanLII 191 (SCC), [1996] SCR 27). As the Saskatchewan Court of Appeal took pains to emphasise in Ackerman Ackerman, 2014 SKCA 86 (CanLII), 442 Sask 113 [Ackerman] the principle does not create presumption in favour of shared parenting. Nor, for that matter, is there presumption in favour of the primary parent or the status quo. Writing for unanimous court in Gilles Gilles, 2008 SKCA 97 (CanLII), [2008] 10 WWR 610, Wilkinson J.A. (as she then was), at para. [16] It must be clearly stated that no legal presumptions are available in the adjudication of these difficult issues by the court. The so-called “primary care-giver presumption” that would favour of the custodial parent’s wishes regarding residence, and was strongly advocated by the minority in Gordon, simply did not prevail…. [308] More recently, in Potzus Potzus, 2017 SKCA 15 (CanLII), [2017] WWR 296, the Court of Appeal had occasion, albeit in the context of an appeal from an interim order, to reiterate as follows, commencing at para. [35] The husband adverts to comments in Dukart Quantrill (Jones), 2015 SKCA 138 (CanLII) 74 RFL (7th) 328 [Dukart], about the importance of the maximum contact principle. There, judge had determined that shared parenting arrangement was not feasible going forward, despite the fact the parents had successfully co-parented the child for four years. In overturning the decision, this Court commented adversely on the judge’s failure to give appropriate weight in the analysis to long-standing co-parenting arrangements and the omission to make any reference to the maximum contact principle. However, unlike the situation presently before us, Dukart was an appeal from trial decision rather than an appeal of an interim order. The comments were made in the context of an unchallenged record of significant, co-extensive parental involvement over four-year period following separation. Moreover, the parenting protocol had initially been sanctioned by agreement between the parties. [36] While court is required to consider the maximum contact principle when making any parenting order, interim or otherwise, s. 16(10) of the Divorce Act does not create presumption of shared parenting. “Maximum contact” is the amount that is congruent with the best interests of the children in the given circumstances of each particular case: Ackerman at para 40. Here, the Chambers judge commented pointedly on the fact the father had never once involved himself in parent-teacher interviews, medical appointments, dental appointments and the like. Where parent is completely uninvolved in the tasks that might be considered the drudgery of parenting, it can be telling sign. The Chambers judge additionally noted that the children would be in the “before and after school program” every day when in the husband’s care and only minimally when in the wife’s care. The husband’s brusque retort is that the children would be better off in third-party care than “sitting at home with the Respondent” [appellant’s factum, AF6]. While the Chambers judge was diplomatic in his assessment of matters, it would seem that the husband’s claim to have been fully involved in “almost all aspects of parenting” was quite immodestly overstated. [37] While the status quo during the relationship is only one factor, it can nonetheless be compelling factor, particularly where one parent remains far more readily available to the children than the other and better positioned to ensure adherence to day-to-day schedules, health needs and educational requirements. Parental availability can be of particular significance during the messy, post-separation period where pressing concern exists to minimize disruption in the children’s everyday routines. In an interim application, which simply results in temporary solution pending the trial, the maximum contact principle does not compel motions judge to take “fresh slate” approach in complete disregard of the roles the parents acquiesced to during marriage. [38] It should be added that there is another important aspect to s. 16(10) of the Divorce Act and that is the willingness of parent to facilitate access. Section 16(10) states: (10) In making an order under this section, the court shall give effect to the principle that child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact. [39] This is very meaningful consideration in any trial judge’s eventual determination of parenting arrangements…. [309] While I accept that the respondent has been D.K.’s primary and psychological parent throughout his life, I am equally satisfied on the evidence that she is generally contemptuous of the petitioner’s role as a parent and she has, except when it has suited her needs, restricted or in some instances, completely denied D.K.’s right to enjoy reasonable access with the petitioner. [310] In the circumstances, I am satisfied that D.K.’s interests will be best served by a parenting regime that preserves the stability the respondent has traditionally provided as his primary caregiver, while expanding the periods of uninterrupted time he enjoys with the petitioner. To the extent possible, this arrangement should also seek to minimize the need for the parties to interact with one another. [311] While this matter was under reserve Goebel J., presiding in chambers, had occasion to order that the parties and D.K. participate in family reunification and conflict counselling. Having heard the evidence in this matter, have no hesitation in concluding that it would be in D.K.’s best interest that such counselling continue. [312] The petitioner and respondent have each professed their love for their son, and both insist they only want what is in his best interest. If they are indeed genuine in their avowed desire, they would both do well to recognize and accept the deleterious effect their behaviour is having on D.K., and to begin making sincere efforts to treat one another with modicum of respect and to learn to communicate civilly and effectively, for the benefit of their son. Child Support [313] In July 2014, Brown J. of this Court found, for the purposes of interim child support, that petitioner had Guidelines income of just over $245,000.00 per annum. On that basis, he directed that the petitioner pay the respondent interim support for D.K. in the amount of $1,949.00 per month. [314] The petitioner proposes that his ongoing child support obligations be determined on the basis of his 2014 line 150 income, as adjusted to reflect the actual dividend income received by him in that year, pursuant to Schedule III, s. of the Guidelines, which section provides that the court should, when calculating income: 5. Replace the taxable amount of dividends from taxable Canadian corporations received by the spouse by the actual amount of those dividends received by the spouse. [315] On that basis, the petitioner submits that his Guidelines income is $293,500.00 while the respondent has Guidelines income of $118,000.00, comprised of dividends actually received in 2014 in the amount of $83,000.00, and imputed employment income of $35,000.00. [316] The respondent invites the court to find the petitioner’s total Guidelines income to be $317,018.00 per annum. The petitioner, she argues, has the ability and discretion to draw considerably more in dividends each year, and submits that going forward, his salary of $203,500.00 as reflected in his 2014 tax return ought to be augmented by dividend income equal to his professional corporations’ net earnings, in the amount of $113,518.00. [317] The relevant portions of the Guidelines provide as follows: 2(3) Where, for the purposes of these Guidelines, any amount is determined on the basis of specified information, the most current information must be used. 3(1) Unless otherwise provided under these Guidelines, the amount of child support order for children under the age of majority is (a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and (b) the amount, if any, determined under section 7. nan Where the income of the spouse against whom child support order is sought is over $150,000, the amount of child support order is (a) the amount determined under section 3; or (b) if the court considers that amount to be inappropriate, (i) in respect of the first $150,000 of the spouse’s income, the amount set out in the applicable table for the number of children under the age of majority to whom the order relates; (ii) in respect of the balance of the spouse’s income, the amount that the court considers appropriate, having regard to the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of the children; and (iii) the amount, if any, determined under section 7. 15(1) Subject to subsection (2), spouse’s annual income is determined by the court in accordance with sections 16 to 20. nan 16 Subject to sections 17 to 20, spouse’s annual income is determined using the sources of income set out under the heading “Total income” in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with Schedule III. 17(1) If the court is of the opinion that the determination of spouse’s annual income under section 16 would not be the fairest determination of that income, the court may have regard to the spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of non-recurring amount during those years. (2) Where spouse has incurred non-recurring capital or business investment loss, the court may, if it is of the opinion that the determination of the spouse’s annual income under section 16 would not provide the fairest determination of the annual income, choose not to apply sections and of Schedule III, and adjust the amount of the loss, including related expenses and carrying charges and interest expenses, to arrive at such amount as the court considers appropriate. 18(1) Where spouse is shareholder, director or officer of corporation and the court is of the opinion that the amount of the spouse’s annual income as determined under section 16 does not fairly reflect all the money available to the spouse for the payment of child support, the court may consider the situations described in section 17 and determine the spouse’s annual income to include (a) all or part of the pre-tax income of the corporation, and of any corporation that is related to that corporation, for the most recent taxation year; or (b) an amount commensurate with the services that the spouse provides to the corporation, provided that the amount does not exceed the corporation’s pre-tax income. (2) In determining the pre-tax income of corporation for the purposes of subsection (1), all amounts paid by the corporation as salaries, wages or management fees, or other payments or benefits, to or on behalf of persons with whom the corporation does not deal at arm’s length must be added to the pre-tax income, unless the spouse establishes that the payments were reasonable in the circumstances. [318] In Thompson Bear, 2014 SKCA 111 (CanLII), 446 Sask 160 [Thompson], the Saskatchewan Court of Appeal explained as follows, at para. [63] The uncontested purpose of the Guidelines is to assist courts in calculating, inter alia, child support in consistent manner based on the income of the payor, who usually is parent or guardian. To that end, the Guidelines provide courts with some discretion when determining what would be fair and equitable amount of child support for the payor to pay based on the payor’s sources of income that fall within the term “Total Income,” as defined in the T1 Tax Return published by the Canada Revenue Agency. In this respect, the Guidelines focus on fairness and equity based on specified sources of income and not on the assets of the payor. It also is not intended to override provisions of other statutes or ignore the interests of third parties, except where specifically provided for regarding matter falling within the jurisdiction of the Parliament of Canada under the Divorce Act, or in the case of Saskatchewan, the provisions of The Children’s Law Act or The Family Maintenance Act, 1997. [319] Dealing specifically with the provisions of s. 18 of the Guidelines, Klebuc J.A., on behalf of unanimous court, went on to conclude: [68] Section 18(1) was implemented for the purpose of making some of the current pre-tax income of corporation available for child support, without putting corporation at risk or interfering with the legal and commercial rights of third parties who interact with the corporation. To accomplish these objectives, it provides that court may consider the payor’s income sources determined pursuant to s. 17 as part of the process of assessing whether “all or part of the pre-tax income of the corporation for the most recent taxation year …” (s. 18(1)(a) of the Guidelines) should be attributed to the payor. It does not expressly or implicitly contemplate corporation’s pre-tax income being averaged pursuant to s. 17(1). Nor does the general fairness principle override the specific provisions of s. 18(1)(a). [69] The limitation prescribed in s. 18(1)(a) has two clear objectives. It recognizes that corporation is distinct person at law with financial obligations to third parties, including its employees, creditors and customers who are dependent on it having sufficient capital and operating income to meet its obligations to them and to efficiently carry on its business activities in circumstances where the payor has no legal obligation to assume the corporation’s debts or fund its capital requirements. It also recognizes that in some circumstances payor’s income may not fairly reflect all of the sums available for child support and in those circumstances allows for the attribution to the payor of corporation’s pre-tax income for the most recent tax year, which often will be readily available. [70] The limitation facilitates both objectives. It makes current pre-tax income, surplus to the corporation’s needs, available for child support without exposing the corporation to an encroachment on its capital, which undermines its viability should the corporation encounter adverse market conditions. It also avoids courts having to forecast future market conditions and the capital requirements of corporation, usually without the benefit of adequate evidence. [71] In my view, the restricted interpretation of s. 18(1), i.e., the Limited Rule, complies with the legislative text, promotes the legislative intent, complies with acceptable legal norms and provides reasonable result. [320] Sandomirsky J. of this Court undertook thorough review of the authorities to that point in Kosior Kosior, 2013 SKQB 42 (CanLII), 413 Sask 18, and provided the following observations, commencing at para. [22] In the decision Nykiforuk v. Richmond, 2007 SKQB 433 (CanLII), 305 Sask. R. 184 at para.23 (interim child support and spousal support) Ryan-Froslie J. defined the concept of retained earnings and set out factors to consider whether to impute or not impute income: [22] In determining whether to exercise its discretion pursuant to s. 18, the Court must be satisfied additional money is actually available and that it can be paid to the shareholder without endangering the financial viability of the company. When making such determination, merely looking at the “retained earnings” of the corporation is of limited assistance. Retained earnings are shareholder’s “equity” in the corporation (its assets less its liabilities). They do not represent “cash” available for distribution, nor do they reflect the pre-tax income of the corporation. [23] In making determination pursuant to s. 18 of the Guidelines, wide range of factors must be considered, including: (i) The pre-tax income of the corporation; (ii) the nature of the business involved (Is it capital intensive or service-oriented? Is it subject to seasonal fluctuations or economic cycles?); (iii) the corporate share structure, including any obligation imposed by shareholders’ agreements; (iv) the financial position and general operations of the company (What are the company’s operating requirements, its inventory, accounts receivable and accounts payable? Are there bank covenants which may affect payment out of funds? Is there necessity to upgrade equipment, etc.?); and (v) is the company well-established one or merely in its startup phase? These are only few of the factors which may be relevant to determination of whether income exists which may be available for child support purposes. Simply because company makes profit does not mean that cash is available for child support purposes. [23] In the Kowalewich decision, supra, at para. 28 the British Columbia Court of Appeal identified number of factors to be considered in determining whether corporation needs to retain pre-tax income at paras. 58-60: (a) the nature of the company’s business; (b) evidence of legitimate calls on corporate income for the purposes of that business; (c) monies needed to maintain the value of the business as viable going concern; (d) need for reserve for depreciation; (e) business expansion plans; and (f) need for working capital. [24] In learned paper Dinyar Marzban and Jamie R. Wood, “Lifting the Corporate Veil: Income Determinations for Shareholders, Directors and Officers Under Section 18 of the Federal Child Support Guidelines” (2012) 31 Can. Fam. L.Q.1 discuss the mixed views of different provincial appellate courts in assessing claim under s. 18 of the Guidelines. The authors state at pps. 4-5: To assess claim pursuant to s. 18, one must review the payor parent’s personal tax returns, as well as the company’s financial statements to determine what portion, if any, of the company’s pre-tax corporate income is available to the payor parent. Some appellate courts have drawn distinction between pre-tax corporate income and retained earnings for the purposes of s. 18, while others have not. These differing approaches appear to have originated with Nesbitt, one of the earliest appellate decisions which considered s. 18. In Nesbitt, the Manitoba Court of Appeal referred to the retained earnings of the husband’s corporation in its analysis, but the Court’s ultimate decision to attribute corporate income to the husband for child support purposes pursuant to s. 18 appears to have been based on his corporation’s pre-tax income. [See Nesbitt, supra note at paras. 19-21 27] In subsequent decision, Dyck v. Dyck, 2008 MBCA 135 (CanLII), [2008 MBCA 135, 231 Man. R. (2d) 246 (CanLII], the Manitoba Court of Appeal relied on Nesbitt and specifically referred to retained earnings, instead of pre-tax corporate income, in deciding whether to impute additional income to payor husband for spousal support purposes. [Ibid. at paras. 36-42] In contrast, the Alberta Court of Appeal, the British Columbia Court of Appeal and the Newfoundland Court of Appeal have more recently considered and expressly rejected the use of retained earnings as means of determining pre-tax corporate income. [See Miller, supra note at paras. 28-30; Hausmann, supra note at paras. 65-66; and Gosse, supra note 14 at para. 102.] In Miller, the Alberta Court of Appeal considered this issue and determined that, based on the wording of s. 18, it was an error in principle to use corporation’s retained earnings rather than its pre-tax income as starting point for calculating available income. [Miller, supra note at para. 30.] The Alberta Court of Appeal said at paras. [28] As the Mother points out, section 18(1)(a) refers to pre-tax earnings. Likewise, Schedule of the Guidelines uses pre-tax (Total Income from Line 150 of the T1 General form) income: s. 16. This suggests that Parliament intended pre-tax earnings to provide the starting point for determining income under the Guidelines, subject to any allowable deductions pursuant to Schedule of the Guidelines. [29] While there are cases where retained earnings have been used as the starting point for determining the amount to attribute to the payor’s income (see e.g., Broumas, Rattenbury v. Rattenbury, 2000 BCSC 722 (CanLII), 2000 BCSC 722 and Cook v. McManus, 2006 NBQB 138, 301 N.B.R. (2d) 372), there has generally been no explanation given for the use of retained earnings. [30] The Father’s submission that the use of retained earnings by the judge was tantamount to ascribing only part of the pre-tax income to the Father (as permitted by section 18(1)(a) cannot be accepted. If that was the judge’s intention, he should have said so. Absent such an explanation, the judge erred in principle in using the corporation’s retained earnings rather than its pre-tax income as starting point for his calculations. In Hausmann, the British Columbia Court of Appeal agreed with the Alberta Court of Appeal’s comments in Miller on this point and observed that “‘retained earnings’ in company’s financial statement represent equity in the company, not ‘cash’.” [Hausmann, supra note at para. 66.] The Newfoundland Court of Appeal, in Gosse adopted the approach from Miller and Hausmann and characterized retained earnings as “an irrelevant factor” in s. 18 analysis. [See Gosse, supra note 14 at para. [25] prefer how my sister, Ryan-Froslie J. discussed the proper discretion to be exercised under s. 18 in the Nikiforuk decision. [26] The authors Marzban and Wood conclude their paper by providing the following summary of case law which attempts to assist the reader with the use of s. 18 of the Guidelines at pps. 11-12: Section 18 of the Guidelines is an important tool for courts in ensuring that children of shareholders, directors and officers are supported commensurate with their parents’ means, and that parents and children in similar situations receive equal treatment under the Guidelines, regardless of how parents choose to structure their incomes. Early considerations of s. 18 produced conflicting results about the purpose and application of this section. In recent years, several appellate courts have had an opportunity to consider central issues with respect to the application of s. 18. The following non-exhaustive list of principles has emerged from the s. 18 authorities: 1. Retained earnings are not equivalent to pre-tax corporate income and are not relevant to s. 18 analysis. 2. Blameworthy conduct on the part of the payor parent is not prerequisite to triggering the application of s. 18. 3. shareholder, director or officer bears heavy onus to lead clear evidence of the corporation’s legitimate business needs. It is not open to court to speculate about corporation’s needs. 4. Evidence of the corporation’s economic volatility may be factor in determining how much pre-tax corporate income is available to shareholder, director or officer. 5. What shareholder, director or officer does with the available pre-tax income of the corporation is irrelevant to s. 18 analysis, even where it is paid to the support recipient for other reasons. 6. In the absence of clear evidence demonstrating corporation’s legitimate business needs, all pre-tax corporate income should be attributed to the shareholder, director or officer for child support purposes. 7. Incorporated professionals are less likely than others to establish legitimate business calls on pre-tax corporate income. 8. Minority shareholders are not immune to attributions of pre-tax corporate income, but the appropriateness of making these attributions must be determined on case-by-case basis. 9. Averaging pre-tax corporate income over three-year period is common practice, but attributing the three-year average to payor parent may be inconsistent with the wording of s. 18(1)(a) where corporation’s pre-tax income for the most recent taxation year is lower than the three-year average. There is no consensus on this issue. [321] In light of the Court of Appeal’s subsequent decision in Thompson, any uncertainty as to the last of these principles enumerated by Sandomirsky J. must now be taken to be settled. [322] In this case, the uncontroverted evidence of his accountant, Todd Underwood, which accept, is that the petitioner’s professional corporation had retained earnings of only $11,000.00, and that his ability to declare additional dividends was tenuous. [323] Section 18 of the Guidelines affords the court discretion to consider all, or indeed, only some of corporation’s pre-tax income when determining spouse’s total income for the purposes of child support. The position advanced by the respondent fails to recognize that, as the Court of Appeal took pains to reiterate in Thompson, it is only that current pre-tax income which is found to be truly surplus to the corporation’s needs, without exposing it to an encroachment on its capital or undermining its viability, which the court may properly consider in the context of an award of child support. [324] In the circumstances, find the petitioner’s Guidelines income to be $293,500.00. Commencing December 1, 2015 and on the first of each and every month thereafter, he shall pay child support to the respondent, pursuant to s. of the Guidelines, in the amount of $2,308.00 per month. [325] The petitioner argues the court ought to impute employment income to the respondent in the amount of $35,000.00, in addition to the $83,000.00 in dividends she received in 2014. On that basis, he invites the court to find her total income to be $118,000.00. [326] As the parties do not share parenting responsibilities as contemplated by s. of the Guidelines, the relevance of the respondent’s income for the purposes of child support is limited to the apportionment of extracurricular and other expenses enumerated in s. 7. With regard to the proper apportionment of D.K.’s extracurricular and extraordinary expenses, s. of the Guidelines provides as follows: (1) In child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation: (a) child care expenses incurred as result of the custodial parent’s employment, illness, disability or education or training for employment; (b) that portion of the medical and dental insurance premiums attributable to the child; (c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses; (d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs; (e) expenses for post-secondary education; and (f) extraordinary expenses for extracurricular activities. (1.1) For the purposes of paragraphs (1)(d) and (f), the term “extraordinary expenses” means (a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or (b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account (i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, (ii) the nature and number of the educational programs and extracurricular activities, (iii) any special needs and talents of the child or children, (iv) the overall cost of the programs and activities, and (v) any other similar factor that the court considers relevant. (2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child. (3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim subsidy, benefit or income tax deduction or credit relating to the expense. [327] The uncontroverted evidence, including the testimony of the petitioner’s accountant, Todd Underwood, confirms that the petitioner ceased to declare and pay dividends to the respondent sometime after the pronouncement of Brown J.’s interim order of July 2014, electing instead to pay her spousal support in accordance with the said order, from after-tax income. [328] As for the petitioner’s request that the court impute employment income to the respondent, s. 19 of the Guidelines provides as follows: (1) The court may impute such amount of income to spouse as it considers appropriate in the circumstances, which circumstances include the following: (a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse; [329] The circumstances under which the court might properly consider imputing income to spouse who is ostensibly intentionally underemployed were recently considered by this Court in D.A. S.A., 2017 SKQB 108 (CanLII) [D.A.]. Commencing at para. 88, the court observed as follows: [88] The various considerations and principles which bear upon an application to impute income were canvassed at length in Algner Algner, 2008 SKQB 132 (CanLII), [2008] 10 WWR 509 wherein, commencing at para. 18 of her decision, Ryan-Froslie J. (as she then was) provides the following summary: (i) Section 19 sets out non-exhaustive list of circumstances where court may consider imputing income (See: Donovan v. Donovan, supra, at para. 13). (ii) The decision to impute income pursuant to s. 19 is discretionary one (See: Donovan v. Donovan, supra). (iii) In determining an application pursuant to s. 19(1)(a), three-step analysis should be employed: Firstly, the court must determine if the spouse is intentionally under-employed or unemployed. If the "spouse" is intentionally under-employed or unemployed, the court must determine whether any of the exceptions set out in s. 19(1)(a) apply, i.e. whether the under-employment or unemployment is required by reason of: (i) the needs of child of the marriage; (ii) the needs of any child under the age of majority; (iii) the reasonable educational needs of the spouse; or (iv) the reasonable health needs of spouse. Finally, if court determines "spouse" is intentionally under-employed or unemployed, and that none of the exceptions apply, the court must decide whether to exercise its discretion and impute income (See: Prokopie v. Kuzniar, supra, at para. 25). (iv) The word "intentionally" in s. 19(1)(a) means "voluntarily". There is no need to find specific intent to evade child support (See: Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (Ont. C.A.) at para. 16). (v) parent has an obligation to seek employment commensurate with their ability to earn income (See: Van Gool v. Van Gool (1998), 1998 CanLII 5650 (BC CA), 44 R.F.L. (4th) 314 (B.C. C.A.) at para. 34 and Egan v. Egan, 2003 BCSC (CanLII), [2003] B.C.J. No. (B.C.S.C.) (QL)). (vi) As general rule, parent cannot avoid his or her child support obligations by self-induced reduction of income. Thus, once it has been established that spouse is intentionally under-employed or unemployed, the burden shifts to that spouse to establish his employment or lack thereof is reasonable in the circumstances (See: Drygala v. Pauli, supra, at para. 38; Egan v. Egan, supra)). (vii) Parents are entitled to make employment or career changes that may impact their ability to pay child support so long as the decision is reasonable in the circumstances. (viii) In determining what income should be imputed pursuant to s. 19, the Court should also have regard to what is reasonable in the circumstances. (ix) The factors to be considered in determining whether employment is reasonable, and in setting the amount of income to be imputed include, but are not limited to, the payor's age, education, training, work experience, skills, historical earning capacity, health, the motivation for the change in employment, the availability of job opportunities, the payor's ability to relocate, the number of hours the payor is reasonably available to work and their support obligations (See: Drygala v. Pauli, supra, at para. 38; Van Gool v. Van Gool, supra, at para. 30; Donovan v. Donovan, supra; Hanson v. Hanson, 1999 CanLII 6307 (BC SC), [1999] B.C.J. No. 2532 (B.C. S.C.) (QL) at para. 17; Martel v. Martel, 2000 SKQB 227 (CanLII), (2000), 193 Sask. R. 225 (Q.B.); Cholodniuk v. Sears, 2001 SKQB 97 (CanLII), (2001), 204 Sask. R. 268 (Q.B.); Bodanarchuk v. Berden (October 31, 2006), Prince Albert, F.L.D. No. 204/2006, (Wilkinson J.), unreported)). [89] The term “intentionally under-employed” was judicially considered by this Court, in V.G.B. E.H., 2004 SKQB 280 (CanLII), 250 Sask 272. Commencing at para.14, Ryan-Froslie J. (as she then was) observed [14] There are two lines of judicial authority dealing with the meaning of “intentionally under-employed or unemployed” One line of authority holds that “intentionally” means “voluntarily”. It applies where parent chooses to be under-employed or unemployed. No specific intent to evade child support is necessary. This was the approach adopted by the Manitoba Court of Appeal in Donovan v. Donovan, 2000 MBCA 80 (CanLII), (2000), R.F.L. (5th) 306 (Man. C.A.), the Ontario Court of Appeal in Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 29 R.F.L. (5th) 293 (Ont. C.A.) and by Justice Dawson of this Court in Mullen v. Mullen, 2004 SKQB 65 (CanLII), [2004] S.J. No. 85 (Q.B.) (QL). The second line of authority holds that “intentionally” in s. 19(1)(a) requires specific intent by the parent paying child support to evade that obligation. This line of reasoning was adopted by the Alberta Court of Appeal in Hunt v. Smolis-Hunt, 2001 ABCA 229 (CanLII), (2001), 20 R.F.L. (5th) 409 (Alta. C.A.). [15] Obviously, an individual who chooses to be under-employed or unemployed to avoid paying child support is “intentionally under-employed or unemployed”. cannot, however, conclude that is the only circumstance envisioned by s. 19(1)(a). adopt the reasoning of the Manitoba Court of Appeal in Donovan and the Ontario Court of Appeal in Drygala, supra and find “intentional” extends to situations where parent required to pay child support chooses, for whatever reason, to earn less than they are capable of earning. The fact the parent “chooses” to be under-employed or unemployed, brings their situation within the meaning of “intentional” and creates the circumstance envisioned by s. 19(1)(a). The reason for such choice does not change the fact it is “intentional” but it may impact the court’s decision whether to exercise its discretion and impute income. [330] Having concluded that the petitioner in that case was in fact voluntarily under-employed by virtue of her decision to forego full time employment in favour of pursuing master’s degree, the court in D.A. went on to hold, commencing at para. [91] Whatever the merits of her decision, the petitioner chose to pursue her education and not to return to the workforce full-time. Her decision was voluntary and on the evidence before me, am satisfied that she is intentionally under-employed. [92] Having concluded the same, it then falls to determine whether the petitioner’s intentional under-employment is nonetheless justified by the needs of their children or her own reasonable educational needs, as contemplated by s. 19(1)(a) of the Guidelines. [93] By the time the matter had come on for trial, the parties’ children, B.A. and F.A. were 14 and 11 years old respectively, and attending school full-time. The petitioner provided no evidence to suggest that the needs of either child were in any way responsible for her decision to not to return to work eventually. [94] As for her own reasonable educational needs, the evidence discloses that her position with Crown Life was eliminated in the spring of 2001. Their eldest son, B.A. was born in October of that year, and the petitioner remained at home thereafter, presumably with the concurrence of the respondent. [95] Respondent’s counsel submits that the petitioner should have sought full-time employment once she completed her Bachelor of Arts degree in 2013 and that she is now, by her own admission, overqualified for many of the opportunities otherwise available to her. [96] Notably, the petitioner acknowledged she had not attended any summer courses since obtaining her undergraduate degree in 2013, and conceded under cross-examination that she had only applied for at most, ten job opportunities. Moreover, as respondent’s counsel observed, the petitioner conceded she had not applied for any of the government job opportunities posted in the recent “Careers in the Saskatchewan Public Service” document exhibited in the proceedings. [97] In these circumstances, respondent’s counsel invites the court to impute income to the petitioner in the sum of $50,000.00 per annum. In support of his position, counsel referred the court to the decision of the Ontario Court of Appeal in Drygala Pauli (2002), 2002 CanLII 41868 (ON CA), 61 OR (3d) 711 (Ont CA) [Drygala]. Beginning at para. 38, Gillese J.A., for unanimous court, observes as follows: [38] There is duty to seek employment in case where parent is healthy. As general rule, parent cannot avoid child support obligations by self-induced reduction of income. Thus, once it has been established that spouse is intentionally unemployed or under-employed, the burden shifts to that spouse to establish what is required by virtue of his or her reasonable educational needs. [39] There are two aspects to this stage of inquiry. The trial judge must first determine whether the educational needs are reasonable. This involves consideration of the course of study. spouse is not to be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations. [40] But, s. 19(1)(a) speaks not only to the reasonableness of the spouse's educational needs. It also dictates that the trial judge determine what is required by virtue of those educational needs. The spouse has the burden of demonstrating that unemployment or under-employment is required by virtue of his or her reasonable educational needs. How many courses must be taken and when? How much time must be devoted in and out of the classroom to ensure continuation in the program? Are the academic demands such that the spouse is excused from pursuing part-time work? Could the program be completed over longer period with the spouse taking fewer courses so that the spouse could obtain part-time employment? If the rigours of the program preclude part-time employment during the regular academic school year, is summer employment reasonably expected? Can the spouse take co-operative courses as part of the program and earn some income in that way? These are the types of considerations that go into determining what level of under- employment is required by the reasonable educational needs of spouse. [41] The burden of proof is upon the spouse pursuing education as he or she is the person with access to the requisite information. The spouse is in the best position to know the particular requirements and demands of his or her educational program. He or she will have information about the hours of study necessary to fulfill such requirements, including the appropriate preparation time. He or she is in the best position to show whether part-time employment can be reasonably obtained in light of these educational requirements. [98] In the present case, note that by the time the parties had separated and subsequently resolved their matters by way of Minutes in March 2007, the petitioner had been completely out of the work force for six years. The petitioner testified, and in the circumstances accept, that after their divorce, she decided she needed to make herself more marketable, and enrolled in university in 2009. In 2013, she obtained her Bachelor of Arts degree with major in English. That fall, she enrolled in the master’s program. When the matter came on for trial, the petitioner had completed all of her classwork, and expected to defend her thesis in the near future. [99] She testified further, that she was concurrently working on campus, part-time, and exploring full-time employment opportunities once she obtained her master’s degree. After returning to the workforce full-time, it was her expectation that she would be earning between $40,000.00 and $60,000.00 annually. [100] On the evidence before me, am satisfied that the petitioner is intentionally under-employed but, accept that the reason underlying her choice falls within the justifications explicitly enumerated in s. 19(1)(a) of the Guidelines. Moreover, in all of the circumstances, am persuaded that her decision to forego full-time employment, after being out of the workforce for some years, and to instead enroll in university, and thereby upgrade her skill and academic credentials was reasonable one. [101] That said, it was the petitioner’s evidence that, upon successfully defending her thesis, she will have earned her master’s degree. She testified that she had begun to apply for permanent positions, and at no time did she suggest that it would be her intention to pursue her education further. She is only 45 years of age, and there was no evidence of any physical or mental health issues which might potentially impact upon her ability to earn an income. [331] See also, more recently, D.B.B. D.M.B., 2017 SKCA 59 (CanLII) [D.B.B.]. [332] In this case, the uncontroverted evidence is that, while living in Pakistan, the respondent was fully-employed as medical professional. In September 2005 she chose, understandably, to immigrate to Canada with the petitioner and their son, in search of better life. Although the respondent is highly educated and possessed of an advanced skill-set, the uncontroverted evidence is that she has not worked in that profession, or indeed at all save for brief period of temporary, part-time employment on an election campaign in 2008 and period spent recertifying in Pakistan since the parties took up residence in Canada over decade ago. [333] note that when the parties first immigrated in the fall of 2005, D.K., who was born the preceding November, was not yet year old. The respondent testified, and on the evidence as whole accept, that the parties agreed that she would put her career on hold, and raise D.K., at least until the petitioner became qualified and began to practice medicine in this country. also accept on the evidence as whole that the parties had mutually agreed that, once the petitioner had begun to practice medicine, the respondent would then also commence the process of qualifying to do so. [334] The petitioner successfully completed his examinations in 2007 and was successful in securing medical residency at that point. D.K. however, was not yet school age by this point, and aside from some temporary and ad hoc child-care assistance, the evidence confirms that the respondent was primarily responsible for their son’s day to day needs. [335] Moreover, while the petitioner and respondent each blame the other for the decision to return to Saskatchewan in October 2012, there is no dispute that following the family’s arrival in Canada, they relocated from Vancouver, to Saskatoon and then to Ottawa in furtherance of the petitioner’s career. [336] D.K. now attends school on full-time basis during the day, and the parties both testified that the respondent has made some progress toward obtaining her qualifications to practice medicine in this country. According to the respondent’s evidence, which accept, she plans to pursue the study to practice program, and to avoid the long hours associated with residency so she can continue, for the most part, to be available to their son outside of school hours. It was her evidence that the study to practice program can take as much as three years to complete. also accept her evidence that her career options are limited to some extent by the fact that she is practically restricted to opportunities within the province. [337] In all of the circumstances, find that the respondent is indeed intentionally under-employed but accept that her decision was justified, initially, by the needs of their son and more recently, by her own reasonable educational needs and the obligation to become qualified to practice medicine in this country. Having so found, am not persuaded that it is an appropriate instance in which to exercise my discretion to impute employment income to her at this time. [338] The respondent also claims for retroactive child support. The leading authority in this respect remains the Supreme Court of Canada’s decision in D.B.S S.R.G; L.J.W. T.A.R.; Henry Henry; Hiemstra Hiemstra, 2006 SCC 37 (CanLII), [2006] SCR 231 [D.B.S.], wherein Bastarache J., for the majority identified the following four factors for consideration, namely: 1. Any reasonable excuse for why support was not sought earlier; 2. The conduct of the payor parent; 3. The circumstances of the child; and 4. Any hardship occasioned by retroactive award. [339] The uncontroverted evidence in this case is that after the parties separated in April 2014, the petitioner began voluntarily providing sporadic support to the respondent by way of dividends from his professional medical corporation in the amount of $6,000.00 per month. He testified, and accept, that when asked, he also provided the respondent with additional lump sum payments, including payment of $35,000.00 and transfer to her of almost $13,775.00. While the respondent maintains that the $35,000.00 was used to repay loan to her brother, the petitioner insists that the balance outstanding on that loan was, by that point, closer to $20,000.00. The respondent did not dispute that she had received the additional payment of almost $13,775.00, which sum represented the entirety of the net proceeds realized from the sale of the parties’ condominium in Saskatoon. [340] Indeed, it was not until after he had petitioned the court in April 2014 seeking, inter alia, specified access and shared parenting that the respondent sought an order obliging the petitioner to pay support. [341] In July 2014, the court ordered the petitioner to pay interim child support in the amount of $1,949.00 per month, as well as spousal support in the amount of $5,250.00. With one notable exception, the petitioner has continued to pay support, both child and spousal pursuant to the terms of that order. The petitioner readily acknowledged that, although he continued to pay her spousal support, he elected to make no child support payments to the respondent during the two months she was in Dubai and he was caring for D.K. [342] There was, in this case, absolutely no evidence of what effect, if any, the payment of reduced child support in accordance with the interim order may have had on D.K. [343] Finally, there is considerable evidence upon which to conclude that a retroactive award would work an undue hardship upon the petitioner. Pursuant to the terms of this judgment, he will be obliged to assume significant family debt, to provide the respondent with a considerable equalization payment in respect of her interest in the family home, and to pay increased child and spousal support. In light of all of the evidence, and in particular, his testimony and that of his accountant, coupled with his sworn financial statement exhibited in these proceedings, accept that his capacity to pay himself higher salary or to declare additional dividends from his corporation is at best, inadequate to meet his obligations. [344] Applying the D.B.S. factors holistically to the circumstances of this case, I am not satisfied that it is an appropriate instance in which to make a retroactive order, save and except for the two months period in which the petitioner admittedly refused or neglected to pay child support in accordance with the interim order of this Court. As such, the petitioner shall pay to the respondent, on account of retroactive child support, the sum of $3,898.00. Division and Distribution of Family Property [345] The petitioner submits he has been or will ultimately be obliged to assume responsibility for virtually all of the debts accumulated during their marriage and, on that basis, seeks an unequal division of the parties’ family home and property. [346] The respondent counters that the majority of the parties’ debt was incurred in furtherance of the petitioner’s medical career, and invites the court to make an unequal division and distribution of their family property in her favour, and an equal division of their family home. [347] The relevant provisions of The Family Property Act, SS 1997, F-6.3 direct as follows: 2(1) In this Act: “value” means: (a) the fair market value at the time an application is made pursuant to this Act, or at the time of adjudication, whichever the court thinks fit; or (b) if fair market value cannot be determined, any value at the time an application is made pursuant to this Act, or at the time of adjudication, that the court considers reasonable. 20 The purpose of this Act, and in particular of this Part, is to recognize that child care, household management and financial provision are the joint and mutual responsibilities of spouses, and that inherent in the spousal relationship there is joint contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities that entitles each spouse to an equal distribution of the family property, subject to the exceptions, exemptions and equitable considerations mentioned in this Act. 21(1) On application by spouse for the distribution of family property, the court shall, subject to any exceptions, exemptions and equitable considerations mentioned in this Act, order that the family property or its value be distributed equally between the spouses. (2) Subject to section 22, where, having regard to the matters mentioned in subsection (3), the court is satisfied that it would be unfair and inequitable to make an equal distribution of family property or its value, the court may: (a) refuse to order any distribution; (b) order that all the family property or its value be vested in one spouse; or (c) make any other order that it considers fair and equitable (3) For the purposes of subsection (2), the court shall have regard to the following: (a) any written agreement between the spouses or between one or both spouses and third party; (b) the length of time that the spouses have cohabited; (c) the duration of the period during which the spouses have lived separate and apart; (d) the date when the family property was acquired; (e) the contribution, whether financial or in some other form, made directly or indirectly by third party on behalf of spouse to the acquisition, disposition, operation, management or use of the family property; (f) any direct or indirect contribution made by one spouse to the career or career potential of the other spouse; (g) the extent to which the financial means and earning capacity of each spouse have been affected by the responsibilities and other circumstances of the spousal relationship; (h) the fact that spouse has made: (i) substantial gift of property to third party; or (ii) transfer of property to third party other than bona fide purchaser for value; (i) previous distribution of family property between the spouses by gift or agreement or pursuant to an order of any court of competent jurisdiction made before or after the coming into force of this Act or The Miscellaneous Statutes (Domestic Relations) Amendment Act, 2001 (No. 2); (j) tax liability that may be incurred by spouse as result of the transfer or sale of family property or any order made by the court; (k) the fact that spouse has dissipated family property; (l) subject to subsection 30(3), any benefit received or receivable by the surviving spouse as result of the death of his or her spouse; (m) any maintenance payments payable for the support of child; (n) interests of third parties in the family property; (o) any debts or liabilities of spouse, including debts paid during the course of the spousal relationship; (p) the value of family property situated outside Saskatchewan; (q) any other relevant fact or circumstance. 22(1) Where family home is the subject of an application for an order pursuant to subsection 21(1), the court, having regard to any tax liability, encumbrance or other debt or liability pertaining to the family home, shall distribute the family home or its value equally between the spouses, except where the court is satisfied that it would be: (a) unfair and inequitable to do so, having regard only to any extraordinary circumstance; or (b) unfair and inequitable to the spouse who has custody of the children. (2) Where clause (1)(a) or (b) applies, the court may: (a) refuse to order any distribution; (b) order that the entire family home or its value be vested in one spouse; or (c) order any distribution that the court considers fair and equitable. (3) Where there is more than one family home, the court may designate to which family home this section applies, and any remaining family home is to be distributed in accordance with section 21. [348] The preferred approach to the division and distribution of family property was established early on by Cameron J.A. for the Court of Appeal in Benson Benson (1994), 1994 CanLII 4554 (SK CA), 120 Sask 17 (Sask CA). At paras. 18 and 19 he writes: 18 Section 21(1) of the Act requires that the "matrimonial property or its value", both as defined in s. 2, be distributed and distributed equally, subject only to the exceptions, exemptions, and equitable considerations mentioned elsewhere in the statute. "Matrimonial property" is defined by s. 2(h) to mean all manner of property that, "at the time an application is made under this Act", is owned by one or other of the spouses or in which either has an interest. "Value" on the other hand is defined by s. 2(1) to mean the fair market value "at the time an application is made under this Act, or at the time of adjudication, whichever the court thinks fit". 19 In the light of these and other provisions of the Act, the practice is to resolve these cases along the lines suggested by Carter, J., in Rathie v. Rathie (1980), 1980 CanLII 2016 (SK QB), 17 R.F.L. (2d) 265 (Q.B.), determining, first, the property and its value subject to distribution. This ordinarily entails compiling an inventory of the property owned by the spouses as of the time of application and establishing the net value of that property as of that time or the time of adjudication. Exceptions aside, this is the property and its value which is subject to distribution. It is the practice to go on from there to next determine whether any of that property or its value is exempt from distribution; then to determine whether any of it ought not to be distributed equally having regard for the equitable considerations mentioned in the statute; and finally to decide how the distribution should be effected. [349] More recently, in Ackerman, Jackson J.A. summarized the various principles and considerations applicable to valuing family property as follows, commencing at paragraph 37: [37] Value is defined in s. of The Family Property Act to mean: (a) the fair market value at the time an application is made pursuant to this Act, or at the time of adjudication, whichever the court thinks fit; or (b) if fair market value cannot be determined, any value at the time an application is made pursuant to this Act, or at the time of adjudication, that the court considers reasonable. This definition gives trial judges considerable discretion in determining whether to use the application date or the adjudication date to value family property. The ambit of that discretion has been considered by this Court and review of that jurisprudence reveals the following principles: (i) The application date is the date traditionally used by courts for valuation purposes (see: Benson Benson (1994), 1994 CanLII 4554 (SK CA), 120 Sask 17 (CA) at para 34 [Benson]). (ii) Generally, property should be valued consistently at either the application date or the date of adjudication. If property is valued at different dates, the court should provide an explanation for doing so (see: Tataryn Tataryn (1984), 1984 CanLII 2663 (SK CA), DLR (4th) 77 (Sask CA) at 80 and Russell at para. 25). (iii) In determining the appropriate valuation date, judge must act rationally based on the evidence before him or her; keeping in mind the purpose of the Act and the justice of the case (see: Benson at para. 33, Russell at para. 28, and Williams Williams, 2011 SKCA 84 (CanLII) at para 29, 343 DLR (4th) 720). (iv) The choice of valuation date will be informed in part by the sufficiency of the evidence of value pertaining to each date (see: Russell at para. 28); (v) If property has increased or decreased in value between the application date and the date of adjudication, the reason for that increase or decrease is an important factor to be considered in choosing the appropriate valuation date. If the increase or decrease is due solely to market forces the property should generally be valued as of the date of adjudication (see: Benson at para. 34, Russell at para. 45, Mehling Mehling (1989), 1989 CanLII 4775 (SK CA), 75 Sask 195 (CA)). On the other hand, when the rise or fall in value is attributable solely to the actions of one spouse, it is appropriate to value the property as of the date of application (see: Gresham Gresham (1988), 1988 CanLII 5230 (SK CA), 72 Sask (CA) and Benson at para. 34). would add that any contribution by third party to the increase or decrease in value of family property, would militate in favour of valuing that property as of the application date. (vi) The type of distribution contemplated by the Court, eg. sale or transfer to one or both spouses, may also be relevant to the choice of the valuation date. Other considerations may also apply. [350] The foregoing summary was subsequently affirmed in Thomas Thomas, 2016 SKCA 53 (CanLII), 476 Sask 288. Commencing at para. 32 of that decision, the court observed: [32] As an initial point, Ackerman does not stand for the proposition that where there is change in value between the application date and the adjudication date due to factors not restricted to market forces, the application date for valuation is invariably the appropriate date. Section 2(1) of the Act, and the definition of value stated therein, makes clear that where necessary the court can determine reasonable value based on either the date of application or adjudication: 2(1) In this Act: “value” means: (a) the fair market value at the time an application is made pursuant to this Act, or at the time of adjudication, whichever the court thinks fit; or (b) if fair market value cannot be determined, any value at the time an application is made pursuant to this Act, or at the time of adjudication, that the court considers reasonable. [33] Based on the jurisprudence from this Court, judge dividing the value of matrimonial property has the power to make choices with regard to value and is not restricted to the de facto value at either the application date or the adjudication date if the evidence is such that fair market value cannot be established using either of those dates. This much was made clear by Jackson J.A. in Russell Russell (1999), 1999 CanLII 12313 (SK CA), [2000] WWR 619 (Sask CA): [28] Selection of the valuation date is not decision made in isolation from other decisions made in the course of dividing matrimonial property. The choice of the valuation date is rational one based on the evidence. As the case law indicates, the valuation date is influenced by such factors as the sufficiency of the evidence of value pertaining to one date or the other, the cause of an increase or decrease in value, the fairness of one date over the other and the effect of inconsistent dates on the overall fairness of the distribution. All of this is dependent upon thorough understanding of the evidence. Thus, although judgments begin with decision as to the appropriate valuation date, the court hears all evidence pertaining to value before selecting the valuation date. See also Benson Benson (1994), 1994 CanLII 4554 (SK CA), 120 Sask 17 at paras 33-34, and Ackerman at para 37. [351] In this case, the appraisal filed as Exhibit P-1 establishes that, as of September 2, 2015, the family home, located at **** James Hill Road, Regina, had fair market value of $434,000.00, and this is the same value which the respondent has utilized in her written argument, dated November 13, 2015. The only evidence of the mortgage indebtedness secured against title to the family home was in the form of an email from the mortgagee, which was also filed as part of Exhibit P-1, and which suggested that as of April 30, 2014, the balance outstanding was $360,299.00. [352] While the parties filed statements to establish the value of some of the debts accumulated by them during the marriage, the dates utilized for those statements were generally inconsistent and, save for some of their account balances and the valuation of the petitioner’s medical corporation, there was little or no evidence as to the value of the remainder of the parties’ family property, beyond the estimates of value set forth in their respective property statements. [353] In the circumstances, counsel for the petitioner proposes that, in the absence of independent evidence, the value of these other assets and debts be determined by averaging the estimates provided by the parties in their property statements, as adopted at trial. To that end, she has prepared table of values, set forth at pages 63-65 inclusive of her written brief of law, which table is reproduced below. COMMENT Family Home **** James Hill Road, Regina 434,000.00 Value in the September 2, 2015 Appraisal by Crown Appraisals Exhibit P-1 Tab Household Goods 3,500.00** *Average value of parties’ respective values in Property Statements. Respondent (20,000) Exhibit R-2; Petitioner (3,000 4,000) Exhibit P-2; **Average values of parties’ respective values in Property Statements. Respondent (3,000) Exhibit R-2; Petitioner (4,000) Exhibit P-2; Computer and X-box 1,000.00 Petitioner’s Property Statement sworn August 18, 2014 Exhibit P-2 Total Real Property 4,500.00 Vehicles and Various Misc Personal Property 2009 Jeep Patriot 12,500.00* *Average value in parties’ respective Property Statements; Petitioner (15,000) Exhibit P-2; Respondent (10,000) Exhibit R-2; Total Value of Vehicles 12,500.00 Bank Accounts Accounts Receivable RBC Personal Account 2,755.74 RBC personal account *****-******* statement as of April 22, 2014 Exhibit P-1 Tab RBC Person Account 613.73 RBC statement Account ********for April 23, 2014 Exhibit P-1 Tab Personal Savings account TD Canada Trust Account #******* Account closed January 14, 2014 Exhibit P-1 Tab Joint account TD Canada Account #******* 153.71 Statement dated April 2, 2014 Exhibit P-1 Tab Net sale proceeds from Saskatoon Condo 13,774.17 Paid to Respondent in late 2013; Exhibit P-1 Tab Total Value of Bank Accounts 14,541.61 Life Insurance SMA Sunlife Life Insurance No cash value Petitioner’s Property Statement sworn August 18, 2014, Exhibit P-2 SMA Manulife Disability Insurance No cash value Petitioner’s Property Statement sworn August 18, 2014, Exhibit P-2 Total Value of Life Insurance nan Business Interest Regina Pediatric P.C. Inc. 12,100.00 Business Valuation of Virtus Group dated October 23, 2015, Exhibit P-1 Tab Total Value of Business Interests nan TOTAL VALUE OF ASSETS $460,605.74 $31,541.61 LIABILITIES Mortgage Equitable Bank (360,299.16) Email from Equitable Bank dated October 10, 2014 providing outstanding balance as of April 30, 2014 Exhibit P-1 Tab 10 RQHR Loan (30,000.00) October 20, 2014 letter from RQHR providing outstanding balance as of October 14, 2014 Exhibit P-1 Tab 11 National Bank of Canada Line of Credit (99,990.81) National Bank account 74-682-97 statement as of May 7, 2014 Exhibit P-1 Tab 12 RBC Line of Credit (89,497.05) Royal Credit Line account ********-*** statement as of May 7, 2014 Exhibit P-1 Tab 14 TD credit card (4,337.37) April 11, 2014 statement Exhibit P-1 Tab 15 RBC company credit card (1,447.39) WestJet RBC MasterCard statement as of May 12, 2014 Exhibit P-1 Tab 15 National bank of Canada Loan (86,156.30) National Bank account ******* statement as of May 2, 2014 exhibit P-1 Tab 13 46.88 Statement dated March 18, 2014 Exhibit P-1 Tab 17 Walmart MasterCard Referred to in Respondent’s Property Statement sworn July 7, 20140 No statement provided, Exhibit R-2 Canadian Tire MasterCard 0.00 Statement dated April 3, 2014 Exhibit P-1 Tab 18 Outstanding taxes for 2012 and 2013 (70,314.77) Portion of taxes payable for 2012 and 2013. $48,543.75 for 2012 taxes due and owing at time of Petition. $70,834.13 total taxes owing for 2013 (personal); $36,000.00 for 2013 (corporate). See corporate financial statement for 2013 Exhibit P-1 Tab and Petitioner’s personal Tax returns attached to Exhibit P-3 Outstanding Taxes for 2013 (4,567.96) Exhibit P-1 Tab 19 HealthForce Ontario Returns of Service Loan (23,222.80) Petitioner’s Testimony, and Petitioner’s Property Statement, Exhibit P2 Total Debts (765,265.65) (4,521.08) Total Non-Registered Assets $31,541.61 TOTAL VALUE of Liabilities (765,265.65) NET ASSETS (304,659.91) Difference No net assets to divide [354] Notwithstanding that the dates employed for establishing many of the values set forth above are inconsistent, while other values are simply estimates based upon averaging, in the circumstances, those values represent the best or, in some cases, the only evidence available to the court and, with one exception, accept the same for the purposes of establishing an appropriate division and distribution of the family home and property. That exception is in respect of the approximately $13,775.00 paid by the petitioner to the respondent in 2013, from the net proceeds realized upon the sale of their Saskatoon condominium. As there was no evidence that these proceeds, or any portion thereof continued to exist or are otherwise traceable as of the date of application, they do not meet the definition of family property. [355] The petitioner submits that the parties’ debts significantly exceed the value of their family property and the equity in the family home. He submits further that, with the exception of computer, which he argues should be returned to him, the parties should, in the circumstances, each retain the property in their respective possession and similarly assume responsibility for the debts in his or her name. [356] Specifically, the petitioner proposes that he retain the family home, without division or distribution, and that he assume sole responsibility for the mortgage, as well as the indebtedness to RQHR, the National Bank and RBC lines of credit, National Bank loan, and the TD credit card balance. The respondent, he proposes, would assume sole responsibility for the TD Visa, Canadian Tire Mastercard and her personal income tax outstanding for 2013. [357] The respondent disagrees, and submits that she should receive an equal division of the family home and an unequal division and distribution of the parties’ family property. She argues, inter alia, that the role and responsibilities which she assumed during their marriage directly or indirectly contributed to the petitioner’s career, and negatively impacted upon her own financial means and earning capacity, as contemplated by ss. 21(3)(f) and (g) of The Family Property Act. [358] She adds that much of the debt accumulated during their relationship was incurred to advance the petitioner’s career, and notes that she too will be obliged to incur similar expenditures to become licensed to practice medicine. In the circumstances, she submits, it would be inequitable and inappropriate to equally apportion the parties’ debt or to divide and distribute the equity in the family home on anything other than an equal basis. must agree. [359] In support of his client’s position, counsel for the respondent adverts to the decisions of this Court in Guderyan Meyers, 2006 SKQB 535 (CanLII), 290 Sask 280 and Reid Kurysh, 2011 SKQB 150 (CanLII) [Kurysh]. Both decisions draw heavily upon the earlier decision of the Saskatchewan Court of Appeal in Russell Russell (1999), 1999 CanLII 12313 (SK CA), 180 Sask 196 (Sask CA) [Russell]. Both Russell and Kurysh were considered recently in Swystun Janzen, 2016 SKCA 117 (CanLII), 485 Sask 140 [Swystun]. Commencing at para. 13 of that decision, Herauf J.A., writes, on behalf of unanimous panel: [13] In considering whether an equal distribution of family property would be “unfair and inequitable”, s. 21(3)(o) of The Family Property Act requires the court to consider “any debts or liabilities of spouse, including debts paid during the course of the spousal relationship”. [14] The appellant submits the trial judge erred by dividing the debts equally. Rather, he submits the trial judge should have considered “whether fairness requires an unequal distribution of property to reflect debt obligations” (see Reid Kurysh, 2011 SKQB 150 (CanLII) at para 31). [15] As stated in Russell Russell (1999), 1999 CanLII 12313 (SK CA), 180 Sask 196 (C.A.) [Russell], “strict construction” of both The Family Property Act and of Benson Benson (1994), 1994 CanLII 4554 (SK CA), 120 Sask 17 (CA) [Benson], would require the trial judge to calculate the value of the family property and then make determination as to whether an “equitable adjustment” is required because of the debts. Justice Jackson then went on to say: “As general rule, however, once debts are accepted as debts incurred by the parties prior to the date of application, Saskatchewan courts deduct debts from the total value of matrimonial property without maintaining that they are doing so as result of an application of equitable principles” (at para 111). [16] Whether or not to order an unequal distribution of family property having regard to the debts of the parties is within the discretion of the trial judge (Russell at para 111, Riben Riben, 2013 SKCA 114 (CanLII) 423 Sask 305). The trial judge, at para 188, stated that the debts were “occasioned by the [respondent] during the course of the relationship for their mutual benefit” and “accordingly” accepted those debts should be taken into account in the property division. This is not surprising since the appellant provided no evidence that it would be improper to consider the debt incurred between separation and petition, or to rebut the evidence provided by the respondent that the debts were incurred for the parties’ mutual benefit. Accordingly, would not give effect to this ground of appeal. [360] With regard to the division and distribution of the family home in particular, the court in Swystun goes on, commencing at para. 36, to hold as follows: [36] This brings us to the main issue in this appeal. The appellant argues that the trial judge erred in his distribution of the family home, as debts and liabilities not pertaining to the family home were used to calculate its value for division purposes. This is so because all the assets and debts including the family home and its mortgage were considered together. The respondent asserts that the trial judge did not err and was not required to divide the equity in the home separate and distinct from the balance of the family property. The respondent submits that the proper approach, as evidenced by numerous decisions at both the trial and appellate level, is to calculate the equity in the family home and then include that equity figure in the overall calculation of the distribution of family property, which is exactly what the trial judge did in this case; however, none of these “numerous decisions” were cited. [37] Section 22 of The Family Property Act reads: 22(1) Where family home is the subject of an application for an order pursuant to subsection 21(1), the court, having regard to any tax liability, encumbrance or other debt or liability pertaining to the family home, shall distribute the family home or its value equally between the spouses, except where the court is satisfied that it would be: (a) unfair and inequitable to do so, having regard only to any extraordinary circumstance; or (b) unfair and inequitable to the spouse who has custody of the children. (2) Where clause (1)(a) or (b) applies, the court may: (a) refuse to order any distribution; (b) order that the entire family home or its value be vested in one spouse; or (c) order any distribution that the court considers fair and equitable. (3) Where there is more than one family home, the court may designate to which family home this section applies, and any remaining family home is to be distributed in accordance with section 21. [38] The appellant cites Gardiner Gardiner (1987), 1987 CanLII 4757 (SK QB), 54 Sask 246 (QB) at para 24 [Gardiner], for the proposition that: When the matrimonial home is subject of an application for distribution the court shall have regard to “any tax liability, encumbrance or other debt or liability pertaining to the matrimonial home” (emphasis added) and then distribute the home or its value equally. Debts and liabilities not pertaining to the matrimonial home may not cut into the value of this one asset to be distributed, or be used to vary the amount to be received by each spouse. [39] In my view, Gardiner is correct articulation of the law regarding distribution of the family home under s. 22 of The Family Property Act. See also Russell at paras 109-110 and M.M.L. P.M.F., 2005 SKQB 348 (CanLII), 268 Sask 159 at para 90. Section 22 makes it clear that the family home is to be dealt with in different fashion from the rest of the family property and is subject to special statutory consideration. This is reinforced by the fact that the family home is specifically defined in s. 2(1) of the Act. As well, the family home is expressly excluded from the definition of exempt property in s. 23 of the Act. Section 22 directs that the entire equity in the family home is to be equally divided by the parties. Equity is determined by reduction in the value of the home only for any tax liability, encumbrance or other debt “pertaining to the family home.” [361] The petitioner testified, and indeed accept that much of the debt incurred during their relationship, including the lines of credit and RQHR loan were expended for the mutual benefit of the family. However, The Family Property Act does not mandate the apportionment of debt, equal or otherwise, save to the extent that fairness requires an unequal division or distribution of family property to reflect the parties’ respective obligations (Kurysh). While it is clear that the court enjoys the discretion to equalize the parties’ debt, where appropriate, by effecting an uneven division and distribution of their family property in general, it is equally clear from the authorities that this discretion does not extend to the family home. [362] As result, the petitioner shall retain the family home and shall be solely responsible for the mortgage indebtedness associated therewith. The respondent is entitled to an equalization payment from the petitioner in the amount of $36,850.00, representing one half of the parties’ total equity therein of $73,700.00. [363] The parties shall retain all other items of family property presently in their respective possession, and shall be solely responsible for any indebtedness in their respective names. Spousal Support [364] On July 4, 2014, Brown J. found the petitioner’s income to be slightly in excess of $245,000.00, and on that basis, ordered the petitioner to pay interim spousal support to the respondent in the amount of $5,250.00 per month. [365] The petitioner argues that the respondent is intentionally under-employed, that the court ought to impute income to her and that the amount of the interim spousal award should, accordingly, be reduced or, alternatively, terminated entirely. [366] The respondent, by contrast, seeks an increase in the interim order, and invites the court to award her support in the amount of $9,000.00 per month which, she submits, is the midrange suggested by the Carol Rogerson Rollie Thompson, Spousal Support Advisory Guidelines, ([Ottawa]: Department of Justice, 2008) [SSAG]. [367] The statutory authority to award spousal support is derived from the provisions of The Family Maintenance Act, 1997, SS 1997, F-6.2 and the Divorce Act and. The former provides that: 5(1) On application, the court may order person to provide maintenance for his or her spouse, in accordance with need, to the extent that the person is capable of doing so. (2) An order for the maintenance of spouse should: (a) recognize any economic advantages or disadvantages to the spouses arising from the spousal relationship or its breakdown; (b) relieve any economic hardship of the spouses arising from the breakdown of the spousal relationship; and (c) in so far as practicable, promote the economic self-sufficiency of each spouse within reasonable period of time. 7(1) In determining the amount, if any, of maintenance to be paid for dependent spouse, the court shall take into account the needs, means and economic circumstances of the parties, including: (a) the age and the physical and mental health of the spouses; (b) the length of time the spouses cohabited; (c) the measures available for the dependent spouse to become financially independent and the length of time and cost involved to enable the dependent spouse to take those measures; and (d) the legal obligation of the respondent to provide maintenance for any other person. (2) In determining the amount, if any, of maintenance to be paid for dependant, the court shall not take into account any benefit that the Department of Community Resources and Employment provides to or for the maintenance of the dependant. [368] Similarly, s. 15.2 of the Divorce Act directs as follows: 15.2 (1) court of competent jurisdiction may, on application by either or both spouses, make an order requiring spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse. (2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1). (3) The court may make an order under subsection (1) or an interim order under subsection(2) for definite or indefinite period or until specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just. (4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including (a) the length of time the spouses cohabited; (b) the functions performed by each spouse during cohabitation; and (c) any order, agreement or arrangement relating to support of either spouse (5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of spouse in relation to the marriage. (6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of spouse should (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (d) in so far as practicable, promote the economic self-sufficiency of each spouse within reasonable period of time. [369] In Bracklow Bracklow, 1999 CanLII 715 (SCC), [1999] SCR 420, the Supreme Court of Canada identified the following three conceptual basis for entitlement to spousal support: 1) compensatory; 2) contractual; and, 3) non-compensatory. As Cameron J.A. observed in Bradley Bradley, 2005 SKCA 53 (CanLII) at para 36, 262 Sask 215, the purpose of spousal support is to relieve economic hardship that results from the marriage or its breakdown. To that end, the Divorce Act requires fair and equitable distribution of resources between spouses so as to alleviate the economic consequences of the marriage or its breakdown. Neither the parties’ respective means and needs, nor the objective of achieving economic self-sufficiency, are to dominate the inquiry. Rather, all four objectives referenced in the Divorce Act must be taken into consideration. [370] As there is not, in this case, any evidence of an express or implied contract, the first question to determine is whether the respondent is entitled to an award of ongoing support, on either compensatory or non-compensatory basis. [371] useful summary of these two models of support may be found in the recent decision of the Saskatchewan Court of Appeal in D.B.B. Commencing at para. 75, Herauf J.A., on behalf of unanimous panel observed as follows with respect to the compensatory support: [78] The first two objectives in s. 15.2(6) of the Divorce Act primarily relate to the compensatory purpose of spousal support (see Moge and Bracklow). When looking at compensation, the question facing court is what is the spouse’s loss that the marriage or marriage breakup caused that would not have been suffered but for the marriage (Bracklow at para 41). This inquiry must be made while recognizing that compensatory spousal support may also address any economic advantages enjoyed by the other spouse as result of the recipient spouse’s efforts. The British Columbia Court of Appeal in Chutter Chutter, 2008 BCCA 507 (CanLII), 301 DLR (4th) 297 [Chutter], leave to appeal to SCC dismissed with costs, [2009] SCR vi, stated the purpose of compensatory support as follows: [50] Compensatory support is intended to provide redress to the recipient spouse for economic disadvantage arising from the marriage or the conferral of an economic advantage upon the other spouse. The compensatory support principles are rooted in the “independent” model of marriage, in which each spouse is seen to retain economic autonomy in the union, and is entitled to receive compensation for losses caused by the marriage or breakup of the marriage which would not have been suffered otherwise (Bracklow, at paras. 24, 41). The compensatory basis for relief recognizes that sacrifices made by recipient spouse in assuming primary childcare and household responsibilities often result in lower earning potential and fewer future prospects of financial success (Moge, at 861-863; Bracklow, at para. 39). In Moge, the Supreme Court of Canada observed, at 867-868: The most significant economic consequence of marriage or marriage breakdown, however, usually arises from the birth of children. This generally requires that the wife cut back on her paid labour force participation in order to care for the children, an arrangement which jeopardizes her ability to ensure her own income security and independent economic well-being. In such situations, spousal support may be way to compensate such economic disadvantage. [51] In addition to acknowledging economic disadvantages suffered by spouse as consequence of the marriage or its breakdown, compensatory spousal support may also address economic advantages enjoyed by the other partner as result of the recipient spouse’s efforts. As noted in Moge at 864, the doctrine of equitable sharing of the economic consequences of marriage and marriage breakdown underlying compensatory support “seeks to recognize and account for both the economic disadvantages incurred by the spouse who makes such sacrifices and the economic advantages conferred upon the other spouse” (emphasis added). [372] With respect to entitlement on non-compensatory basis, the court in D.B.B. goes on, commencing at para. 82 of the judgment as follows: [82] Non-compensatory support primarily relates to the objectives found in ss. 15.2(6)(c) and (d) of the Divorce Act and is considered an obligation owed arising from the marriage relationship itself (Bracklow). In Chutter, the British Columbia Court of Appeal discussed the non-compensatory basis for entitlement recognized by the Supreme Court of Canada in Bracklow: [54] Where compensatory principles do not apply, need alone may be sufficient to ground claim for spousal support (Bracklow, at para. 43). Non-compensatory support is grounded in the “social obligation model” of marriage, in which marriage is seen as an interdependent union. It embraces the idea that upon dissolution of marriage, the primary burden of meeting the needs of the disadvantaged spouse falls on his or her former partner, rather than the state (Bracklow, at para. 23). Non-compensatory support aims to narrow the gap between the needs and means of the spouses upon marital breakdown, and as such, it is often referred to as the “means and needs” approach to spousal support. [83] When relationship breaks down, ss. 15.2(6)(c) and (d) dictate that the economic effects on the parties must be evaluated. To determine if spousal support is warranted under non-compensatory basis, “a court must consider all factors including the standard of living of the spouses before and after divorce, their means to satisfy living expenses and their ability to become self-sufficient after the breakup of the marriage” (Russell Russell (1999), 1999 CanLII 12313 (SK CA), 179 DLR (4th) 723 (Sask CA) at para 126). Additionally, case law shows that the standard of living pre- and post-separation is relevant to non-compensatory support entitlement. For example, the Supreme Court’s decision in Moge indicates that “great disparities in the standard of living that would be experienced by spouses in the absence of support are often revealing indication of the economic disadvantages inherent in the role assumed by one party” (at 870). [84] Changes in the parties’ lifestyle are an important factor in the “means and needs” assessment. The promotion of self-sufficiency is an objective that must always be kept in mind. The concept of “needs” in this context goes beyond the basic necessities of life and varies according to the circumstances of the parties (Chutter at para 55). As stated in Fisher Fisher, 2008 ONCA 11 (CanLII), 288 DLR (4th) 513 [Fisher]: [53] Self-sufficiency, with its connotation of economic independence, is relative concept. It is not achieved simply because former spouse can meet basic expenses on particular amount of income; rather, self-sufficiency relates to the ability to support reasonable standard of living. It is to be assessed in relation to the economic partnership the parties enjoyed and could sustain during cohabitation, and that they can reasonably anticipate after separation. See Linton v. Linton (1990), 1990 CanLII 2597 (ON CA), O.R. (3d) at 27-28, 75 D.L.R. (4th) 637 (C.A.). Thus, determination of self-sufficiency requires consideration of the parties’ present and potential incomes, their standard of living during marriage, the efficacy of any suggested steps to increase party’s means, the parties’ likely post-separation circumstances (including the impact of equalization of their property), the duration of their cohabitation and any other relevant factors. [373] On the evidence before me, I have no hesitation in concluding that the respondent has established she is entitled to support on both a compensatory and non-compensatory basis. [374] Prior to immigrating to Canada, both parties practiced medicine. While accept that they had contemplated that the respondent would one day practice again, the uncontroverted evidence is that they agreed, following the birth of their son, that she would put her career on hold and tend to D.K.’s needs while the petitioner sought to become qualified to practice medicine in this country. Over the years, the family relocated numerous times in furtherance of the petitioner’s career. The current disparity in their respective financial resources, earning capacity and professional status are directly attributable to the respondent’s role in the marriage and to the parties’ mutual efforts to advance the petitioner’s prospects. [375] The circumstances of this case also merit an award of support on non-compensatory basis. While the petitioner’s income is considerable, the respondent no longer receives dividends from his professional medical corporation and her income, such that it is, consists almost entirely of spousal support provided by the petitioner. [376] As with the quantification of child support, the petitioner invites the court to impute employment income to the respondent for the purposes of calculating the appropriate award of spousal support. For the reasons set forth earlier in this judgment in the context of child support, am not persuaded that it is appropriate to do so at this time. [377] Again, writing recently for the Court of Appeal in D.B.B., Herauf J.A. notes as follows, commencing at para. [69] This issue was recently addressed by this Court in Kosolofski Kosolofski, 2016 SKCA 106 (CanLII), 402 DLR (4th) 423. Justice Ryan-Froslie discussed the principles that guide courts when they are called upon to determine whether income should be imputed to spouse: [55] This Court considered the principles at play when determining whether income should be imputed for spousal support purposes in Linn Frank, 2014 SKCA 87 (CanLII), 442 Sask 126 [Linn]. Justice Jackson, writing for the Court, stated: [96] Four principles emerge from the appellate authorities cited by Ms. Frank and from this expanded list. First, person is expected to take reasonable steps to obtain employment commensurate with such factors as age, health, education, skills and work history. Second, supportable finding that person is intentionally under-employed carries considerable weight. Third, trial judge’s decision to impute or not to impute income is still decision about support and must be accorded deference on appeal. Fourth, appellate intervention may be required if the evidentiary base does not support the trial judge’s decision to impute income. In that regard, some factors like physical and mental health, current useable skills and age play significant role. Therefore, the question in this appeal is whether the evidence supports the trial judge’s decision to impute employment income of $250,000.00 per annum to the appellant. [71] This Court examined the terms “under-employed” and “intentionally” in Pontius Murray, 2011 SKCA 121 (CanLII) at para 9, 377 Sask 16: [9] The term “under-employed” concerns situations where parent, for whatever reason, chooses to earn less than they are capable of earning. “Intentionally” does not necessarily mean that the parent in question is attempting to avoid paying child support or does not care for the child. subjective intent to evade or reduce child support obligation is therefore not necessary. See: Beisel v. Henderson, 2004 SKQB 280 (CanLII), [2006] W.W.R. 502. Although these comments are related to imputing income for the purposes of child support, it appears that they apply equally to spousal support considerations: see Ann C. Wilton Noel Semple, Spousal Support in Canada, 3d ed (Toronto: Carswell, 2015) at 299. [378] Again, while readily accept that the respondent is, by definition, intentionally unemployed or under-employed, also conclude, in all of the circumstances, that her decision to forego full-time employment was nonetheless justified, initially by the needs of the parties’ son, and subsequently by her own need to retrain and to qualify to practice medicine in this country. [379] Having said that, also accept the respondent’s own uncontroverted evidence to the effect that it is her intention to pursue re-qualification through the study to practice path, and that electing this option will require up to three years to complete. Amongst the various objectives of spousal support is the promotion, within reasonable time, of the economic self-sufficiency of each spouse. [380] As for the parties’ respective condition, means and needs, again, the evidence clearly establishes that the respondent has demonstrated need for support. However, she and the petitioner are both relatively young and, like the petitioner, she is an obviously intelligent, highly capable and highly trained individual who, by her own testimony, intends to return to the practice of medicine as soon as she can become requalified. Given his age and full-time attendance at school, it is reasonable to expect that D.K.’s needs will continue to demand less of the respondent’s time and attention than had previously been the case. [381] The petitioner’s income is considerable. However, given my findings as set forth previously in this judgment, including the priority of child support, the fact he will be obliged to assume significant family debt, and to pay the respondent in excess of $36,800.00 to equalize her interest in the family home, conclude his capacity to pay spousal support to be limited. [382] Respondent’s counsel has appended to his written brief of law and argument, four separate calculations undertaken in accordance with the SSAG. These calculations variously presume income on the part of the petitioner of $309,700.00, $317,018.00, $333,000.00 and $376,500.00. He invites the court, on that basis, to fix the petitioner’s ongoing spousal support obligations somewhere between $7,719.00, being the low range recommended by the SSAG for income of $309,700.00, and $11,357.00, being the high range recommended for income of $376,500.00. [383] In the now oft cited decision in Linn Frank, 2014 SKCA 87 (CanLII) at para 78, 442 Sask 126 [Frank] Jackson J.A., on behalf of the Court of Appeal reiterated that, while they lack legislative or regulatory status, the SSAG represent useful tool which the court may employ when calculating spousal support. [384] The decision in Frank was cited and applied in D.B.B., where, at para. 89, Herauf J.A. summarized as follows: [89] In Frank, this Court discussed the application of the SSAG when court is determining the appropriate quantum of spousal support award. The following principles were outlined by Jackson J.A. (at paras 81–88): (a) the standard of review is that described in Hickey; (b) the starting point in the analysis is the legislative obligations prescribed by the applicable legislation; (c) the parties’ needs and means must be analysed; (d) if counsel makes submission with respect to the SSAG, the trial judge should give reasons explaining why the SSAG were or were not followed; (e) the SSAG are “litmus test” for what constitutes equitable sharing of the economic consequences of the marriage or its breakdown; and (f) the SSAG assist in informing an appellate standard of review. [385] In this case, the petitioner has provided no SSAG calculation, while the value of the various calculations filed on behalf of the respondent as “litmus test” are undermined by the fact that they do not utilize the petitioner’s actual income. Of those provided, the only one which is even remotely relevant is the calculation which employs an income of $309,700.00. This projection provides suggested monthly award of between $7,919.00 and $9,510.00, with median payment of $8,715.00. [386] What the foregoing range fails to reflect, and what is in fact acknowledged in Chapter 12 of the SSAG, is that there are various recognized exceptions or categories of departure from the formula outcomes. Among them are those instances where, as is the case here, one party or the other assumes family debt in excess of assets. [387] In Goodine Goodine, 2013 NSSC 98 (CanLII) the court explicitly referenced the exception for debt payments enumerated at para. 12.2 of the SSAG, and concluded in the circumstances of that case that the payor should be relieved from paying any amount of support. [388] The petitioner herein testified, and accept, that after paying interim child and spousal support of $7,199.00 from his fixed monthly salary of $13,625.00, he is left with approximately $6,435.00 with which to service monthly debt payments of approximately $3,400.00. His sworn financial statement which was filed in these proceedings confirms that his mortgage and property taxes account for an additional $2,400.00 per month. Pursuant to the terms of this judgment, he will, in addition, be obliged to provide the respondent with lump sum payment on account of her half interest in the equity in the family home. [389] While the petitioner acknowledged he has traditionally declared dividends from his professional medical corporation to meet his monthly shortfall, accept that his capacity to do so is extremely limited. [390] The court heard little in the way of evidence of the respondent’s actual needs, and while her own financial statement, which was filed in these proceedings, suggests an annual deficit in excess of $82,000.00 per year, many of the expenses claimed, including claim for $17,400.00 on account of food and expenses, and $4,500.00 for furnishings and equipment, appear excessive. It is also notable that the respondent has claimed $10,000.00 per year on account of vacation expenses and that she has failed to account for receipt of any spousal support in accordance with the interim order. [391] In this case, the respondent requires support. However, the unusually high amount of debt assumed by the petitioner, coupled with his limited means of satisfying such an award warrant a departure from the range of outcomes suggested by the SSAG. In the circumstances, conclude that an appropriate award of spousal support is $6,000.00 per month. [392] As for the appropriate duration of the petitioner’s obligation, the SSAG proposes term of between and 14 years. In 2014 scholarly paper entitled “Spousal Support and the Advisory Guidelines” by Rollie Thompson, the author observes: After Moge, time-limited orders fell into disrepute in compensatory cases, apart from very short marriages or unusual cases where spouse would clearly acquire self-sufficiency within known time frame. In every jurisdiction, there is an appellate decision favouring indefinite orders as the norm in these cases. Indefinite orders are also common in long-marriage cases. Bracklow encouraged greater use of time-limited orders in marriages and relationships without children. In that decision, the Supreme Court recognised the interrelationship of duration and amount. “Review” became the judicial solution to the problems of duration and self-sufficiency: attached to an order of indefinite support is term requiring review at specified future date, at which time court would assess the recipient spouse’s earnings or efforts to attain self-sufficiency. The process of review is explained in decisions like Schmidt v. Schmidt (1999), 1999 BCCA 701 (CanLII), R.F.L. (5th) 197 (B.C.C.A.) or Bergeron v. Bergeron (1999), 1999 CanLII 14955 (ON SC), R.F.L. (5th) 57 (Ont.S.C.J.) per Aston J. On review hearing, unlike variation, no proof of “change of circumstances” need be shown by either party to bring the issue back before the court. The Supreme Court of Canada approved the use of review orders in its June 2006 decision in Leskun v. Leskun, 2006 SCC 25 (CanLII), [2006] S.C.R. 920. Review orders are justified where there is “genuine and material uncertainty at the time of the original trial” as to the spouses’ finances in the near future. “Common examples are the need to establish new residence, start program of education, train or upgrade skills, or obtain employment”, said the Court. If review term is included in an order, the issue(s) to be reviewed should be precisely identified in the order, to avoid mere relitigation of the whole case. [393] There is at present in this case, a genuine and material uncertainty as to the respondent’s future need and the extent to which she will achieve some degree of self-sufficiency. She has testified, and accept that by remaining in Saskatchewan and pursuing the study to practice path, it will take her as much as three years to become qualified to practice medicine in Canada. In the circumstances, I conclude that it is appropriate to make an indefinite award, which will be reviewable on the earlier of December 1, 2018, or the respondent becoming qualified to practice medicine. [394] For substantially the same reasons set forth earlier herein in the context of child support, accept that the payment of retroactive spousal support would work significant financial hardship on the petitioner. The uncontroverted evidence, moreover, is that he has consistently provided the respondent with support, both before and after the pronouncement of formal interim order to that effect, and accept that the respondent appeared satisfied with these arrangements until the petitioner applied to specify access. In all the circumstances, I decline to make any order with regard to retroactive spousal support. [395] The petitioner has petitioned the court for divorce, pursuant to s. 8(2)(a) of the Divorce Act; the respondent has joined in that request. [396] Section of the Divorce Act empowers the court to grant judgment for divorce where there has been breakdown of the marriage including, pursuant to s. (2)(a), those instances in which “the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding” [397] The uncontroverted evidence in this case is that the parties had been living separate and apart continuously since on or about April 2, 2014, and continued to do so at the time of trial. [398] With the concurrence of the parties, they shall have judgement for divorce, which judgment shall take effect upon the conclusion of the appeal period. CONCLUSION [399] The parties shall continue to enjoy joint custody of their son D.K., born --------------------. [400] D.K.’s primary residence shall remain that of the respondent. [401] Save as may be explicitly provided herein, the petitioner shall parent their son according to the following schedule: 1. Commencing on Friday, December 22, 2017, at the conclusion of the school day, to and including Monday, December 24, 2017 at the commencement of the school day, and in like fashion on alternating weekends thereafter; 2. In addition, commencing January 1, 2018, the petitioner shall parent D.K. from Monday at the conclusion of the school day until the following Friday at the commencement of the school day, and in like fashion every fourth week thereafter; 3. In the event that there is no school scheduled during the petitioner’s regular week-long or weekend parenting, exchanges shall take place at the ordinary time for commencement and conclusion of D.K.’s classes; and 4. In addition, the petitioner shall parent each Wednesday, from the conclusion of the school day until 7:00 p.m. [402] To the extent necessary, the regular parenting schedule shall be suspended as follows: 1. During winter vacation such that, commencing in December 2017 and in odd years thereafter, the respondent shall be entitled to parent D.K. from 12:00 p.m. on December 24th, until 12:00 p.m. on December 29th. The petitioner shall then parent continuously until the recommencement of school, at which point, the parties shall revert to the regular parenting schedule; and 2. Conversely, commencing in December 2018 and in even years thereafter, the petitioner shall be entitled to parent D.K. during winter vacation, from 12:00 p.m. on December 24th, until 12:00 p.m. on December 29th. The respondent shall then parent continuously until the recommencement of school, at which point, the parties shall revert to the regular parenting schedule. [403] Save only for emergencies or for the purpose of attending medical or other such appointments, the parties shall each ensure that D.K. attends school as scheduled and each shall be responsible for ensuring that any homework is completed while their son is in their care. [404] The parent who is then responsible for parenting D.K. shall be also responsible for conveying him to all appointments and extracurricular activities, and the other parent shall be entitled to attend such appointments and extracurricular activities. Each of the parties shall arrange to obtain report cards, activity schedules and the like directly from the school, league or coach, as the case may be. [405] To the extent that it is possible, all exchanges shall occur at D.K.’s school. In the event this is not possible, the party whose access is concluding will personally, or with the assistance of an appropriate third party, convey him to the residence of the party whose access period is about to commence. The conveying party, or his or her designate, will remain in his or her vehicle during the exchange. [406] The parties will, whenever possible, communicate via text or email message, and will refrain from engaging D.K., or any third party as messenger. [407] Save only for instances of genuine emergency, the parties will consult with one another, in advance respecting all matters pertaining to D.K.’s health, education and extracurricular activities. In the event the parties are unable to arrive at consensus, the respondent shall be at liberty to make such decisions in the first instance, and the petitioner shall have leave, should he wish, to contest the respondent’s decision by way of application to the court. [408] In the event of medical emergency, the parent into whose care D.K. is then entrusted shall immediately advise the other. In the event that parent elects to do so through third party, it shall be his or her responsibility, as the case may be, to ensure that the information has been communicated in timely fashion, and both parents shall have the right to attend at the hospital, notwithstanding that it may not be their access period. [409] The petitioner and respondent shall each enjoy reasonable telephone or electronic access with D.K. when he is not in their respective care, provided always that the same does not interfere with scheduled activities, homework, bedtimes and the like. [410] The parties shall continue to participate, along with D.K. in counselling with therapist registered with the Saskatchewan College of Psychologists who specializes in reunification therapy and addressing family conflict. The petitioner and respondent shall share equally the net costs of such counselling to the extent the same is not covered by an employee assistance program and or insurance. [411] The parties shall at all times refrain from making derogatory comments about the other in the presence of D.K., and neither shall discuss these court proceedings with him other than to advise him of the parenting schedule set forth herein. [412] Neither party shall remove D.K. from the country without the prior written permission of the other, or an order of the court. Neither party shall remove D.K. from the province without having first provided the other party with no less than 14 days’ notice. [413] The petitioner’s Guidelines income is found to be $293,500.00 per annum. Commencing on the 1st day of December 2015, and on the first day of each and every month thereafter until further order of the court, the petitioner shall pay to the respondent, for the support of D.K., the sum of $2,308.00 per month. The petitioner’s obligations in respect of retroactive child support are fixed at $3,898.00. [414] Commencing December 1, 2015 and on the first day of each and every month thereafter, the petitioner shall pay support for the respondent in the amount of $6,000.00, provided however that the said order shall be reviewable at the instance of either party upon the earlier of the respondent becoming qualified to practice medicine in Canada, or the 1st day of December 2018. [415] The parties shall each pay their proportionate share of any and all expenses contemplated by s. of the Guidelines. [416] Within 30 days of the date hereof, the respondent shall provide the petitioner or his counsel with registerable authorization transferring all her estate and interest in the family home to the petitioner, upon appropriate trust conditions. Within 14 days thereafter, the petitioner shall pay to the respondent the sum of $36,850.00, representing her interest in the equity therein. [417] The parties shall each assume sole responsibility for the debts presently registered in their respective names and shall continue to enjoy all items of personal property in their present possession. [418] The Queen’s Bench Rules provide as follows: 11-1(1) Subject to the express provisions of any enactment and notwithstanding any other rule, the Court has discretion respecting the costs of and incidental to proceeding or step in proceeding, and may make any direction or order respecting costs that it considers appropriate. (2) In exercising its discretion as to costs, the Court may determine: (a) by whom costs are to be paid, which may include successful party; (b) to whom costs are to be paid; (c) the amount of costs; (d) the date by which costs are to be paid; and (e) the fund or estate or portion of the fund or estate out of which costs are to be paid. (3) In awarding costs the Court may: (a) fix all or part of the costs with or without reference to the Tariff; (b) award lump sum instead of or in addition to any assessed costs; (c) award or refuse costs with respect to particular issue or step in proceeding; (d) award assessed costs up to or from particular step in proceeding; (e) award all or part of the costs to be assessed as multiple or proportion of any column of the Tariff; (f) award costs to one or more parties on one scale, and to another party or other parties on the same or another scale; (g) direct whether or not any costs are to be set off; and (h) make any other order it considers appropriate. (4) In exercising its discretion as to costs, the Court may consider: (a) the result of the proceeding; (b) the amounts claimed and the amounts recovered; (c) the importance of the issues; (d) the complexity of the proceedings; (e) the apportionment of liability; (f) any written offer to settle or any written offer to contribute; (g) the conduct of any party that tended to shorten or to unnecessarily lengthen the proceeding; (h) party’s denial of or refusal to admit anything that should have been admitted; (i) whether any step in the proceeding was improper, vexatious or unnecessary; (j) whether any step in the proceeding was taken through negligence, mistake or excessive caution; (k) whether party commenced separate proceedings for claims that should have been made in one proceeding or whether party unnecessarily separated his or her defence from that of another party; and (l) any other matter it considers relevant. 11-20 If the Court awards costs as between solicitor and client, the judge awarding those costs shall assess them. 15-25(1) Costs are in the discretion of the Court and, except as modified by this rule, the provisions of Division of Part and the provisions of Part 11 apply to the costs of family law proceeding. (2) Subject to subrule (3), there is presumption that successful party is entitled to the costs of family law proceeding or step in family law proceeding. [419] While successful party is presumptively entitled to the same in family law proceeding, costs remain in the discretion of the court. Success in this case has been mixed. In the circumstances, there will be no order as to costs.

HELD: 1) The court ordered joint custody and continued primary residence with the wife and specified access to the husband. The child’s interests were best served by a parenting regime that preserved the stability the wife provided as his primary caregiver, while expanding the periods of uninterrupted time with his father. It was best that the parties interact minimally with each other. The mother was generally contemptuous of the husband’s role as parent and sometimes restricted or denied the child’s access with him. There was no credible evidence that the child was suicidal as the mother alleged, nor did any evidence support her allegations of physical or sexual abuse. Rather, evidence confirmed that the child was smart, sometimes sensitive, but generally happy. 2) The husband had professional corporation. His income was determined from his line 150 income, as adjusted to reflect the actual dividend income he received. His income should not be augmented by dividend income equal to his corporation’s net earnings. Only current pre-tax earnings are truly surplus to corporation’s needs, without exposing it to encroachment on its capital or undermining its viability. The relevance of the wife’s income was limited to the apportionment of s. expenses. It was not appropriate to impute income to her. She was intentionally underemployed, but her decision was justified initially by the needs of her son and more recently by her own reasonable educational needs and the obligation to become qualified to practice medicine in Canada. Retroactive child support was not appropriate, except in respect of the two-month period when the wife was overseas, the husband was caring for their child and he admittedly neglected to pay child support in accordance with court order. There was considerable evidence upon which to conclude that a retroactive award would place an undue hardship upon the husband as, pursuant to the terms of this judgment, he was obliged to assume significant family debt, provide a considerable equalization payment and pay increased child and spousal support. 3) The husband retained the family home and sole responsibility for the mortgage thereon. The court ordered him to pay one half of the equity in the home to the wife. Otherwise, the parties were to retain all other items of family property in their respective possession and be solely responsible for any indebtedness in their respective names. The Family Property Act does not mandate the apportionment of debt, equal or otherwise, save to the extent that fairness requires an unequal division of family property to reflect the parties’ respective obligations. The court’s discretion to equalize the parties’ debt by an uneven division did not extend to the family home. 4) The wife was entitled to compensatory and non-compensatory spousal support. The disparity in their incomes was directly attributable to her role in the marriage and their mutual efforts to advance his career. The wife’s income consisted almost entirely of spousal support. However, the high amount of debt assumed by the husband coupled with his limited means for satisfying this judgment, warranted a departure from the range of outcomes suggested by the Spousal Support Advisory Guidelines. Given the genuine and material uncertainty as to the wife’s future need and extent to which she will achieve self-sufficiency, an indefinite award reviewable on the earlier of a date approximately one year from the trial date or the wife becoming qualified to practice medicine was appropriate. The court declined to impute income to the wife or to order retroactive spousal support. 5) Judgment for divorce was granted, with judgment to take effect on the conclusion of the appeal period.

e_2017skqb380.txt

nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2010 SKQB 464 Date: 2010 12 17 Docket: Q.B.G. No. 1553 of 2008 Judicial Centre: Regina BETWEEN: GEORGE ROBERT LAWSON and VINCENT THOMAS McKAY Appearing: William J. Herle for the plaintiff Vincent Thomas McKay appearing on his own behalf JUDGMENT WILSON J. December 17, 2010 [1] The defendant, Vincent McKay, contracted with the plaintiff, George Lawson, for the supply and installation of eavestroughing, soffit and facia together with two downspouts, capping of three garage doors and capping of wooden trim, all to be installed on a new garage building located on Mr. McKay’s land. [2] Mr. Lawson completed work on Mr. McKay’s garage and presented written invoice to Mr. McKay in the sum of $2,800.00. Mr. McKay has not paid Mr. Lawson’s account. Mr. McKay was dissatisfied with the work of Mr. Lawson. Mr. McKay hired others to repair the work. He takes the position that Mr. Lawson’s claim should be dismissed. [3] On October 14th, 2008, Mr. Lawson caused to be registered at the Land Titles Registry, Province of Saskatchewan claim of lien under The Builders’ Lien Act, S.S. 1984-85-86, c. B-7.1, as am. Mr. Lawson then issued a statement of claim in this Court seeking judgment against Mr. McKay in the sum of $2,800.00 and an order that Mr. Lawson is entitled to a lien under the provisions of The Builders’ Lien Act. [4] In July of 2009, Mr. Lawson brought motion seeking leave to enter final judgment against Mr. McKay, in the sum of $2,800.00, with interest to date of judgment, and judgment entitling Mr. Lawson to maintain his lien under the provisions of The Builders’ Lien Act. On August 6th, 2009, Zarzeczny J. made an order that this action be set down for summary trial with no examinations for discovery or pre-trial conference. Zarzeczny J. ordered that the procedure at this summary trial would be the procedure for simplified trial as set out in Saskatchewan, Court of Queen’s Bench Rules, rule 494. It was further ordered that the affidavits that were filed in the proceeding would be the evidence-in-chief of the witnesses and that the witnesses were to be made available for cross-examination at trial. [5] The following affidavits are evidence in the matter before me: 1. The affidavit of George Robert Lawson sworn June 22nd, 2009; 2. The supplementary affidavit of George Robert Lawson sworn July 24th, 2009; 3. The affidavit of Vincent T. McKay sworn July 9th, 2009; 4. The supplementary affidavit of Vincent T. McKay sworn July 30th, 2009; 5. The affidavit of William Borbely, filed on behalf of the defendant, Mr. McKay, sworn July 9th, 2009; and 6. The affidavit of Keenan Young, filed on behalf of the defendant, Mr. McKay, sworn July 10th, 2009. [6] At the trial of this matter both Mr. Lawson and Mr. McKay testified. In addition, Mr. Young and Mr. Borbely testified. THE EVIDENCE [7] In August, 2008, Mr. McKay constructed cottage roof garage on his property located at Boggy Creek, Saskatchewan. After completing the concrete, framing, brick work and roofing, Mr. McKay began search for contractors to supply and install eavestroughing, soffit and facia, as well as other items, on his new garage building. Mr. McKay phoned several contractors who were unable to do the job immediately. He then contacted Mr. Lawson who advertised in the phone book as Midwest Eavestroughing operating out of Lumsden, Saskatchewan. [8] Mr. Lawson and Mr. McKay met at Mr. McKay’s home on September 3rd, 2008. After reviewing the garage, Mr. Lawson provided Mr. McKay with quotation for the supply and installation of eavestroughing, soffit, and facia materials on the garage. More specifically, Mr. Lawson agreed to supply and install approximately 140 linear feet of eavestroughing, soffit and facia together with two downspouts, capping of three garage doors and capping of wooden trim, for the total price of $2,800.00 including goods and services tax. Mr. McKay acknowledges that he agreed to contract price of $2,800.00. However, he says he wanted written contract confirming particulars and price which he never received from Mr. Lawson. Mr. Lawson says that Mr. McKay never requested written contract after accepting the verbal quotation in the sum of $2,800.00. He said it was not his practice to prepare written contracts on jobs of the size in issue and that he would simply present an invoice after the work was completed. [9] Mr. Lawson worked on Mr. McKay’s garage for three days in early September, 2008. On September 6th, 2008, Mr. Lawson provided Mr. McKay with his invoice in the sum of $2,800.00. [10] Mr. McKay had significant concerns with respect to the work done by Mr. Lawson. Mr. McKay alleged the soffitting was not installed correctly on the west wall causing installation of the siding to be bowed on the last row. In addition, he says the corner areas were not cut into 45° angle. As regards the facia, Mr. McKay says that the facia installed on the west and east walls was rippled and overlapped in the wrong direction. As regards the capping on the three garage doors, Mr. McKay says that the capping was not placed flush before screws were used. In addition he complained that silver screws were used on the capping which showed up badly against the white capping. [11] Capping was also required on four small pieces of wood. Mr. McKay says the capping ordered and supplied by Mr. Lawson did not fit as it was not wide enough. It is not disputed that Mr. Lawson installed two of the four caps his first day on the job, but that on the second day of the job Mr. McKay had his electrician, Mr. Borbely, remove the caps that did not fit and arranged for four new caps to be made. Mr. Borbely installed the four new cappings after removing the two installed by Mr. Lawson. [12] With respect to the vertical siding installation above the garage doors, Mr. McKay says that no drip cap was installed, no caulking was done, pieces of building paper were missing and the siding was stapled across in visible lines with dark staples. Finally, as regards the eavestroughing and two downspouts, the eavestroughing, according to Mr. McKay, had roller marks throughout and no downspouts were ever installed. [13] By letter dated September 18th, 2008, Mr. McKay detailed his concerns regarding Mr. Lawson’s work. After receiving the letter Mr. Lawson attended at Mr. McKay’s property, on September 23rd, 2008. Mr. Lawson says he observed some very minor correction work and offered to do repairs. In addition, Mr. Lawson said he was prepared to install the two downspouts which he had not completed. It is not disputed that Mr. McKay did not agree to Mr. Lawson making any repairs. [14] Mr. McKay contacted Mr. Young and Mr. Borbely to review the work done by Mr. Lawson. The decision was made to remove the soffit, facia and eavestroughing installed by Mr. Lawson. Mr. Keenan replaced all the work in mid October, 2008 and provided bill to Mr. McKay in the sum of $1,785.00 taxes included. Mr. McKay prepared full cost list which includes additional costs for work done by Mr. Borbely in the sum of $426.60 and supplies from Home Depot and Wayne Building Products in the sum of $158.82. Finally, the cost list includes $350.00 which Mr. McKay says would cover work Mr. McKay performed and his cost to pick up supplies. In total, Mr. McKay says the amount required to fix the installation work of Mr. Lawson, was the sum of $2,720.42. ANALYSIS [15] The issue before me is whether Mr. McKay is liable to pay Mr. Lawson’s outstanding account. Mr. McKay’s concerns are with respect to the installation of the soffit, facia and eavestroughing and no evidence was led to indicate the products used in the installation were defective. Mr. McKay has not specifically argued breach of contract regarding the installation. However, his position that he is not liable to pay Mr. Lawson’s account must be based on breach of contract. [16] find as fact that Mr. Lawson and Mr. McKay entered into an oral contract for the supply and installation of soffit, facia and eavestroughing. There is clear evidence in the affidavit filed by Mr. McKay that after Mr. Lawson provided quote for his services in the sum of $2,800.00, taxes included, Mr. McKay agreed to the contract price. Mr. McKay’s evidence regarding his desire to have the terms of the oral contract set out in writing is, even if true, irrelevant. [17] There is an implied term in the contract for the performance of services that the work will be carried out in “proper and workmanlike manner”. This legal principle is summarized by Dawson J. in Maisonneuve v. Burley 2001 SKQB 407 (CanLII), [2002] W.W.R. 111 (Sask. Q.B.), where she states as follows in paras. 26 The contract between the plaintiffs and the defendant was contract to do work and supply materials. The governing law is set forth in Mack v. Stuike (1963), 1963 CanLII 332 (SK QB), 43 D.L.R. (2d) 763 (Sask. Q.B.). At p. 771 of Mack, supra, Balfour J. quotes from Halsbury’s Law of England, vol. 3, 3d ed. (London: Butterworths, 1953) at 435, para. 818 as follows: ... contract to perform any work, in the absence of any stipulation as to the manner in which it is to be carried out, implies condition that the work shall be done in good and workmanlike manner, and the workmen employed on the work must be possessed of the ordinary amount of skill possessed by those exercising the particular trade. ... 27 As stated in Goldsmith on Canadian Building Contracts (looseleaf; (Rel. 2) 1998) (Toronto: Carswell, 1988) at pp. 5-11 through 5-12: Work which does not meet the requirements of the specifications contained in the contract, or which, in the absence of such specifications, is not of reasonable workmanlike quality, is not proper compliance with the contract and constitutes breach. Furthermore, compliance by the contractor with the specifications will not be sufficient performance if the specifications were prepared by him and are deficient, even if they were approved by the owner. Whether work, or material supplied, is defective or not is, in each case, question of fact, depending on the construction of the particular specifications where there are any, and on expert evidence as to what is reasonable where there are none. Where contract, either expressly or by implication, contains particular standard for the work to be done, an owner is not entitled to insist on work of higher quality. For example, an owner who contracts for the construction of bush road is not entitled to insist on standard of construction applicable to provincial highway. [18] In the matter before me there is no evidence that Mr. McKay instructed Mr. Lawson to perform the installation services in particular manner. Thus, in the absence of any specifications, must determine whether the services rendered by Mr. Lawson were done in good and workmanlike manner. The test for compliance with the workmanlike standard is fitness for purpose (see: Vogel (Al) Construction Ltd. v. Forbes, (1998), 1998 CanLII 13367 (SK QB), 174 Sask. R. 236, [1998] S.J. No. 696). The purpose for the contract in the matter before me was to install eavestroughing to provide adequate drainage of water off the roof of the garage and keep water from entering the walls of the garage. [19] Mr. Lawson testified at trial that the work he did for Mr. McKay was done to industry standards. Mr. Lawson takes the position that many of Mr. McKay’s complaints were regarding minor aesthetic issues, as opposed to any significant problem with Mr. Lawson’s work. For example, the use of silver screws as opposed to white and the facia overlapping so as to be unsightly to pedestrians approaching the garage. Mr. Lawson says he would have done minor repairs, finished the job by installing the downspouts, and replaced section of trough that had rippling, but that he was not allowed by Mr. McKay to remedy the problems. [20] Mr. McKay takes the position that the work was so “shoddy” that the entire job had to be redone. Mr. McKay called two witnesses to support his position. [21] Mr. Borbely is an electrician who Mr. McKay hired to install perimeter lights on the garage. In his affidavit filed in this matter Mr. Borbely said that he noticed the capping over the pseudo-like pilasters installed by Mr. Lawson did not fit well. Mr. Borbely said he wanted the surface to be flat in order to prevent water from getting into perimeter lights that would be mounted on the pilasters. Under cross-examination at trial he acknowledged that it was not “his call” to say whether or not the capping had to be redone. Mr. McKay asked him to replace the capping. In addition to the capping, Mr. Borbely says that he noticed the eavestroughing had ripples and that mitred corners had not been installed. Mr. Borbely was of the view that because some of the soffitting material had been installed askew it would be very difficult to retrofit mitred corners. [22] Mr. Young also testified for Mr. McKay. Mr. Young is involved in the exterior construction business, both as worker and an owner. Mr. Young was known to Mr. McKay as Mr. Young had in the past worked for Everflow Eaves and Exteriors Inc. Mr. Young was called by Mr. McKay to attend at the site and review the work done by Mr. Lawson. [23] Mr. Young says he noticed unsightly roller marks. He further noticed that the facia on the east and west sides were not overlapped south to north creating unsightly overlaps. He saw that the soffitting on the west side was bowed and would have to be removed and lowered in order to level the siding and soffit. Upon inspecting the corners, Mr. Young says the corners were leaking and rust appeared on the northwest and southwest corners. He observed silicone like caulking floating in the eavestroughs. Finally, he noticed that the soffitting on the corners was not coming in square. It appeared that the soffitting was not locked in and ran at an angle in several places. According to Mr. Young this would cause the corner soffitting to be off square and the soffitting would eventually fall down. During his testimony at trial Mr. Young testified about the installation of the facia. He indicated it was industry standard to overlap the facia in such way that pedestrian traffic would not notice the overlap. It was Mr. Young’s view that the work could not be repaired, particularly the roller marks/dents. [24] Having reviewed all of the evidence, find that number of complaints made by Mr. McKay relating to the work performed by Mr. Lawson relate to aesthetics. However, there is enough evidence of significant problems for me to conclude that the central purpose of the contract for installation was not achieved and that, therefore, there has been a breach of the implied condition of the contract that it would be performed in a workmanlike standard. Specifically, Mr. Lawson’s failure to install drip capping, mitred corners, properly caulk, and lock in the soffitting, appear to be critical for proper drainage of water away from the garage. For that reason conclude that Mr. Lawson did breach the oral contract as the quality of installation was of such standard as to amount to poor workmanship. [25] Having found breach of contract, Mr. McKay is entitled to damages. In Maisonneuve, supra, Dawson J. states at para. 41 Whether one considers damages for breach of contract or damages in tort, the damages will usually be the reasonable costs of remedying the defects. However, an owner is entitled only to have such defects remedied to such extent as to conform to the requirement of the contract, but not to require additional work or work of higher quality. [26] In this matter the cost of repair, as set out on the cost list prepared by Mr. McKay, is slightly less than the cost quoted by Mr. Lawson for the job. Mr. McKay cannot be said to have decided to proceed with additional work or to have work done of higher quality than the work expected to be performed by Mr. Lawson. am, therefore, setting off the damages as against Mr. Lawson’s claim. CONCLUSION [27] As set out above, I have concluded that Mr. Lawson’s workmanship constitutes a breach of contract, and Mr. McKay’s damages are set off against the claim. Mr. Lawson’s claim is therefore dismissed. [28] There shall be no costs in this matter. J. D. L. Wilson

The defendant contracted with the plaintiff for supply and installation of materials. The defendant was not satisfied with the plaintiff's work, hired a third party to fix the plaintiff's work and refused to pay the plaintiff. The plaintiff sued for payment of the outstanding account HELD: The plaintiff's claim is dismissed. The Court found enough evidence to conclude that the central purpose of the contract for installation was not achieved and that there was a breach of the implied condition that it would be performed in a workmanlike standard. As the plaintiff's workmanship constitutes a breach of contract, the defendant's damages are set off against the claim.

e_2010skqb464.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2008 SKQB 33 Date: 2008 01 22 Docket: Q.B.G. 120/2007 Judicial Centre: Regina BETWEEN: JIM WINDREM PLAINTIFF (DEFENDANT BY COUNTER-CLAIM) and MAURICE COUTURE and SANDRA COUTURE and WINDMILL GREENHOUSES DEFENDANTS (PLAINTIFFS BY COUNTER-CLAIM) Counsel: Kelly Onyskevitch for the plaintiff David Barth for the defendant, Maurice Couture for the defendants (plaintiffs by counter-claim) Sandra Couture and Windmill Greenhouses JUDGMENT GUNN J. January 22, 2008 [1] Maurice Couture, Sandra Couture and Windmill Greenhouses (“the applicants”) apply for an order pursuant to Rule 173 of The Queen’s Bench Rules of Court striking paragraphs 10, 10(a), 11, 12, 13 and 14 from Jim Windrem’s amended statement of claim on the basis that permitting these allegations in the statement of claim to remain would be an abuse of process. [2] Rule 173 of the Rules provides as follows: 173. The Court may at any stage of an action order any pleading or any part thereof to be struck out, with or without leave to amend, on the ground that: ... (e) it is otherwise an abuse of process of the Court; and may order the action to be stayed or dismissed or judgment to be entered accordingly or may grant such order as may be just. Unless otherwise directed, the offending party shall pay double the costs to which the other party would otherwise be entitled. [3] The relevant paragraphs of the amended statement of claim are the following: 10. On or about May 29, 2003, the Plaintiff states that he was operating motorized lawnmower on his property when he was physically assaulted by the Defendant, Maurice Couture. During the assault, the Plaintiff was struck in the head with an unidentified object, believed to be pipe or board. The Plaintiff states that no words were exchanged between he and the Defendant and the assault was unprovoked. 10A. At the time of the assault, the Defendant, Maurice Couture, was acting in the course of his duties as partner in the operation of WindMill Greenhouses and the said partnership, and the Defendant, Sandra Couture, are vicariously liable for the actions of the Defendant, Maurice Couture and the assault occasioned upon the Plaintiff. With respect to vicarious liability the Plaintiff pleads and relies on sections 12 and 14 of The Partnership Act R.S.S. 1978 c. P-13. 11. The Plaintiff states that as result of the assault by the Defendant, Maurice Couture, he has suffered significant injury and endured considerable physical pain. Particulars of the injuries sustained by the Plaintiff, caused by the Defendant’s assault, include, inter alia, the following: a. traumatic ruptures of the cornea; b. extensive anterior segment disruption; c. disruption of posterior segment/retina The Plaintiff states that he has had to undergo surgery for left corneal transplant and retinal detachment repair. The Plaintiff claims general damages for pain and suffering, in an amount to be proven at trial. 12. The Plaintiff states that as result of the assault by the Defendant, Maurice Couture, the Plaintiff has endured, inter alia, physical pain and emotional distress. The Plaintiff suffers and will continue to suffer from emotional and nervous upset occasioned by his injuries and loss of enjoyment of life. The Plaintiff claims general damages for past and future loss of enjoyment of life, in an amount to be proven at trial. 13. As further result of the assault of the Defendant, Maurice Couture, the Plaintiff has incurred special damages, the particulars of which have not yet been ascertained but when ascertained will constitute special damages, in an amount to be proven at trial. 14. On or about March 9, 2004, following trial, the Defendant, Maurice Couture, was convicted of the criminal offence of assault causing bodily harm to the Plaintiff contrary to s. 267 of the Criminal Code of Canada. [4] Maurice Couture deposes that the above paragraphs of the amended statement of claim deal with the fact that Jim Windrem attacked him and the fact that he struck Mr. Windrem in self defence. Mr. Couture deposes that after this incident he was charged with committing an assault on Jim Windren that caused bodily harm to him. Mr. Couture was convicted in Provincial Court and on appeal in judgment dated December 29, 2004 the conviction was quashed by Dawson J. and new trial was ordered. [5] When the matter was returned to the Provincial Court for new trial, Mr. Couture was convicted again by Kovatch J. on April 6, 2006. This conviction was overturned on appeal by MacDonald J. on July 26, 2007 and she ordered that an acquittal be entered against Mr. Couture. [6] Mr. Couture relies on the decision of MacDonald J. in this application. Mr. Couture deposes that the evidence at any future trial will be the same as the evidence heard by Kovatch J. 1. The Doctrine of Abuse of Process; 2. What is the effect of the acquittal in the criminal proceeding on the subsequent civil proceeding? Re: 1. The Doctrine of Abuse of Process [7] Rule 173 is codification of the court’s inherent jurisdiction over its own process. The courts have at various times described the object of Rule 173. Among such descriptions are the prevention of delay and the expense of trial founded upon an unreal claim or defence. In Smail Communications Slide Art Productions Ltd. v. Air Sask. Aviation Ltd. (1990), 1990 CanLII 7495 (SK QB), 89 Sask R. 16 (Q.B.) Grotsky J. wrote at p. 24: [43] For case to be considered frivolous, vexatious, or an abuse of process, the alleged cause of action...must be such that no reasonable person could treat it as bona fide and contend that he was entitled to approach the court with such complaint... [emphasis in original] [8] In Sagon v. Royal Bank of Canada et al. (1992), 1992 CanLII 8287 (SK CA), 105 Sask. R. 133 (Sask. C.A.); 32 W.A.C. 133 Justice Sherstobitoff reviewed the procedure to be followed on an application under Rule 173. He said the following in relation to an application to strike on the basis of an abuse of process at para. [18] Striking out an entire claim on the ground that it is frivolous, vexatious or an abuse of process of the court is based on an entirely different footing. Instead of considering merely the adequacy of the pleadings to support reasonable cause of action, it may involve an assessment of the merits of the claim, and the motives of the plaintiff in bringing it. Evidence other than the pleadings is admissible. Success on such an application will normally result in dismissal of the action, with the result that the rule of res judicata will likely apply to any subsequent efforts to bring new actions based on the same facts. Odgers on Pleadings and Practice, 20th Ed. says at pp. 153-154: “If, in all the circumstances of the case, it is obvious that the claim or defence is devoid of all merit or cannot possibly succeed, an order may be made. But it is jurisdiction which ought to be very sparingly exercised, and only in very exceptional cases. Its exercise would not be justified merely because the story told in the pleadings is highly improbable, and one which it is difficult to believe could be proved....” [9] The doctrine of abuse of process was dealt with recently by the Supreme Court of Canada in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 (CanLII), [2003] S.C.R. 77. Arbour J. speaking for majority of the court said the following at para 37: 37 In the context that interests us here, the doctrine of abuse of process engages “the inherent power of the court to prevent the misuse of its procedure, in way that would...bring the administration of justice into disrepute” (Canam Enterprises Inc. v. Coles (2000), 2000 CanLII 8514 (ON CA), 51 O.R. (3d) 481 (C.A.), at para. 55 per Goudge J.A., dissenting (approved [2002] S.C.R. 307, 2002 SCC 63 (CanLII))). Goudge J.A. expanded on that concept in the following terms at paras. 55-56: The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in way that would be manifestly unfair to party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel. See House of Spring Gardens Ltd. v. Waite, [1990] W.L.R. 347 at p. 358, [1990] All R. 990 (C.A.). One circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence an attempt to relitigate claim which the court has already determined. [Emphasis added] [Emphasis in original] Justice Arbour went on to say the following at para 52: 52... It is therefore apparent that from the system’s point of view, relitigation carries serious detrimental effects and should be avoided unless the circumstances dictate that relitigation is in fact necessary to enhance the credibility and the effectiveness of the adjudicative process as whole. There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system, for example: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context. This was stated unequivocally by this Court in Danyluk [v. Ainsworth Technologies Inc., 2001 SCC 44 (CanLII), [2001] S.C.R. 460] at para. 80. Re: 2. What is the effect of the acquittal in the criminal proceeding on the subsequent civil proceeding? [10] A verdict of acquittal in a criminal trial is inadmissible in a subsequent civil trial as proof that the party did not commit the offence. (See Rizzo et al v. Hanover Insurance Co., (1993), 1993 CanLII 8561 (ON CA), 14 O.R. (3d) 98; 103 D.L.R. (4th) 577 (Ont. C.A.) (application for leave to appeal to the Supreme Court of Canada dismissed). Similarly verdict of acquittal in criminal trial cannot prevent the case proceeding in civil court. [11] In Montgomery v. Black, [1989] B.C.J. No. 1800 QL Melvin J. faced similar circumstance. He said at page of his decision: In my view there are good policy reasons in support of the conclusion that victim who is witness for the Crown in unsuccessful criminal proceedings should be entitled to proceed independently in subsequent civil proceedings against the same defendant. The conduct of an accused in the criminal context is that his conduct may be considered an offence against the State or the Queen’s peace. In civil proceedings it is wrong against the individual alone which is alleged and the law should not preclude plaintiff from proceeding civilly by the mere fact that criminal charge against an accused with reference to the same conduct has been dismissed. Otherwise, the victim may not wish to report criminal activity as it may preclude his subsequent opportunity to proceed civilly. There are different parties in civil proceedings from criminal and of course, different burden of proof. [12] Mr. Justice Melvin also quoted from Canadian Tort Law, Allen M. Linden, page 42: Conduct which amounts to the tort of battery or assault would also usually constitute criminal assault. defendant who punches someone in the nose is liable both for the tort of battery and the crime of assault. He may be sued by his victim for damages, and he may in addition be prosecuted by the Crown in the criminal courts. The outcome in each proceeding is irrelevant to the other since the parties, issues, and burdens of proof are somewhat different. One who is convicted of criminal assault is not immune from later civil action for the damages resulting from that assault, but he will be excused from paying punitive damages to his victim. [13] Mr. Couture relies on the decision of MacDonald J. where she says at para. 13 of her judgment that the actions of the appellant [Mr. Couture] were justified in the circumstances. He takes comfort in the fact that she did not say that the crown had failed to prove its case beyond reasonable doubt, or that the crown had failed to prove beyond reasonable doubt that Mr. Couture did not act in self defence. However it is clear from her decision that the main focus of the appeal was whether the Provincial Court judge had erred in his application of the law with respect to the defence of self-defence (para. of the MacDonald decision). [14] In the criminal proceedings brought by the crown against Mr. Couture, Mr. Windrem did not have control of the proceedings. As in all criminal cases, he was simply witness and was required to answer the questions of crown counsel in direct examination and to respond to the questions posed to him in cross-examination. He did not have control over the evidence to be presented or the questions to be asked. The crown bore the onus throughout to prove its case beyond reasonable doubt and to prove beyond reasonable doubt that the defence of self defence did not apply. (See R. v. Cinous, 2002 SCC 29 (CanLII), [2002] S.C.R. 3) [15] Whereas in the civil proceeding which is now before the court, Mr. Windrem as the plaintiff is in a position to control the presentation of his case and must prove his case on a balance of probabilities. The onus of proving self defence is on the defendant. He bears the onus of proving the assault was justified and was made with reasonable force. [16] In my view the paragraphs of the statement of claim which are at issue in this application do not amount to an abuse of process and the application is dismissed. The plaintiff will have his taxable costs in any event of the cause.

The applicants apply for an order pursuant to Rule 173 of The Queen's Bench Rules striking paragraphs of the amended statement of claim on the basis that permitting these allegations in the statement of claim to remain would be an abuse of process. The paragraphs of the amended statement of claim at issue deal with the fact that the plaintiff alleges he was assaulted by the defendant and sustained bodily harm. The defendant was charged with assault, but his conviction was overturned on appeal. The issue is the effect of the acquittal in the criminal proceedings on the subsequent civil proceedings. HELD: The paragraphs of the statement of claim at issue do not amount to an abuse of process and the application is dismissed. 1) A verdict of acquittal in a criminal trial is inadmissible in a subsequent civil trial as proof that the party did not commit the offence. 2) In the criminal proceedings brought by the Crown against the defendant, the Crown bore the onus throughout to prove its case beyond a reasonable doubt and prove beyond a reasonable doubt that the defence of self-defence did not apply and the plaintiff did not have control of the proceedings. In the civil proceeding, the plaintiff is in a position to control the presentation of his case and must prove his case on a balance of probabilities. The onus of proving self-defence is on the defendant. He bears the onus of proving the assault was justified and was made with reasonable force.

2008skqb33.txt

J. 1993 S.H. No. 93‑4487 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: J. Colleen Killorn, Plaintiff and HealthVision Corporation, body corporate formerly known as H.C.S. Health Care Systems Inc., body corporate, DECISION HEARD: at Halifax, Nova Scotia before The Honourable Justice Walter R. E. Goodfellow on February 1, 1996 DECISION: February 1, 1996 (Orally) WRITTEN RELEASE OF ORAL: February 2, 1996 COUNSEL: Raymond S. Riddell, Solicitor for the Plaintiff William L. Ryan, Q.C. Solicitor for the Defendant and Nancy G. Rubin GOODFELLOW, J.: BACKGROUND J. Colleen Killorn, in her statement of claim, filed September 9, 1993 seeks a declaration of wrongful dismissal and damages including commissions and remuneration in lieu of reasonable notice, mental distress and punitive damages. Additionally she claims commissions due under her remuneration terms of her employment. The defence filed October 18, 1993 only admits the basics of the party's status and acknowledges the hiring of Ms. Killorn as an account manager in November, 1989, at which time they entered sales compensation package and her employment was terminated on July 12, 1993. Paragraphs and of the defence specifically state: "8. On termination of her employment, the Plaintiff was offered $14,000, less statutory deductions, in lieu of notice. She was also advised that she would be paid commissions on any payments received from her accounts within 90 days in accordance with the terms of the Sales Compensation Plan. 9. The Defendant states that on the expiry of the 90 days from the date of the Plaintiff's termination, the Defendant calculated commissions payable to the Plaintiff based on payments received from her accounts and the Plaintiff has now been paid all commissions earned in accordance with the Sales Compensation Plan." Notice of trial with jury was filed March 10, 1995. date assignment conference was held June 1, 1995 and trial dates were set for February 5, 6, 7, 8, 9, 12 and 13, 1996. They were assigned June 8, 1995. On January 26, 1996 the issue of striking the jury notice was raised by the filing of this application. 2. LEGISLATION Judicature Act s. 34: "Trials and procedure 34 Subject to rules of Court, the trials and procedure in all cases, whether of legal or equitable nature, shall be as nearly as possible the same, and the following provisions shall apply: (a) in civil proceedings, unless the parties in person or by their counsel or solicitors consent to trial of the issues of fact or the assessment or inquiry of damages without jury, the issues of fact shall be tried with jury in the following cases: 1) where the proceeding is an action for libel, slander, criminal conversation, seduction, malicious arrest, malicious prosecution or false imprisonment; 2) where either of the parties in proceeding requires the issues of fact to be tried, or the damages to be assessed or inquired of with jury and files with the prothonotary and leaves with the other party or his solicitor notice to that effect at least sixty days before the first day of the sittings at which the issues are to be tried or the damages assessed or inquired of, except that, upon an application to the Supreme Court or to judge made before the trial or by the direction of the judge at the trial, such issues may be tried or such damages assessed or inquired of by Judge without jury, notwithstanding such notice, 3) where the judge at the trial in his discretion directs that the issues of fact shall be tried or the damages assessed or inquired of with jury; (b) in all other cases the issues of fact or the assessment or inquiry of damages in civil proceedings shall be tried, heard and determined and judgment given by judge without jury." Civil Procedure Rules: "1.05 In these Rules, unless the context otherwise requires, (a) 'Act' means The Judicature Act;" "Mode of trial 28.03 1) proceeding, or any question or issue arising therein, shall be tried with jury where required by the Act. 2) When the court deems it expedient to do so, it may, in such manner and upon such terms as it thinks just, try any proceeding, or any question or issue therein, with the assistance of one or more qualified assessors. 3) The court may refer proceeding, or any question or issue therein to referee, with or without the assistance of assessors, as provided in Rule 35. 4) In all other cases, proceeding, or any question or issue therein, shall be tried by the court without jury." "Setting down of trial with or without jury at Halifax (2) The provisions of Rule 28.05 apply to the filing of Notice of Trial with or without Jury and Certificate of Readiness pursuant to subsection (1) of this Rule with necessary modifications to include Notice of Trial with Jury." "Setting down for trial without jury (4) Upon receiving notice of trial without jury and certificate of readiness, party shall be deemed to have consented to the filing of the notice unless, within ten days from the filing of the notice, the party makes an application to the court, in chambers, to show cause why trial date should not be assigned. (6) Unless the Court otherwise orders, notice of trial without jury and certificate of readiness shall not be withdrawn." 1) What follows from the delay in filing this notice to strike? 2) Is an action for wrongful dismissal, by its nature, one that should be tried without jury? 3) Has the defendant shown cogent reasons why the plaintiff should be deprived of her right to trial by jury? Issue (1) What follows from the delay in filing this notice to strike? Health Vision waited until January 26, 1996 to make the application, by which time the notice of trial with jury had been outstanding for 10.5 months and trial date set over months ago with no mention of intention to strike at the date assignment conference. The jury trial is set to commence in days. The failure to move to strike in timely fashion does not impact on the question of whether or not the jury notice should be struck. Indeed Trial Judge may, in rare cases, take all or part of the trial from the jury after its commencement. Nevertheless, timely motions should be made and not left until the eve of trial where such could easily have been advanced for some considerable time. C.P.R. 28.05 does not preclude the motion to strike. The delay in filing the notice to strike goes only to consideration of costs. If the motion is granted, it may be basis for denying or limiting costs. Issue (2) Is an action for wrongful dismissal, by its nature, one that should be tried without jury? It is clear that this question has and must be answered in the negative. Berneshawi v. Whitsed Publishing Ltd. et al. (1984), C.C.E.L. 57, Ont. S.C. headnote: The appeal Judge examined the case law concerning the prima facie right to jury and concluded that there was no general rule that an action for wrongful dismissal should be tried without jury. In case such as this where there were several issues that ought to be tried by jury, the jury notice should stand and it should be left to the discretion of the trial Judge. Here, the trial Judge would likely allow those issues which ought to be tried by jury to be tried by jury, and those that should not be so decided would be withdrawn from the jury by the trial Judge and decided by himself." Slone v. Toronto Stock Exchange (1991), 1991 CanLII 7315 (ON CA), C.P.C. (3d) 278, Ont. C.A.: As this court has frequently stated, the right to trial by jury is an important substantive right:... That right should not be denied prematurely. In our view, it was inappropriate to strike the jury notice in this case. All of the evidence going to the question of whether or not there was just cause for the appellant's dismissal was eminently suited to assessment by jury. Had the unfolding of the evidence made it appropriate to do so, specific issues, such as those relating to the assessment of damages, could have been withdrawn from the jury. We consider this an appropriate case in which to order new trial before jury." Issue (3) Has the defendant shown cogent reasons why the plaintiff should be deprived of her right to trial by jury? confess to some difficulty in determining when matter is pure question of law as contrasted to question of fact. When you are clearly faced with the interpretation of document or statute, ie. do the words "married spouse" mean they include other than two people not of the same sex? It is, in my view, question of law. What is required to be married in accordance with specific statute would also be question of law. Whether or not the parties went through marriage ceremony is question of fact. All too often the issues raised are mixed questions of law and fact. Here there is substantial agreement particularly that Ms. Killorn is entitled to damages in lieu of notice for the termination of her employment. What is in issue is the "reasonableness of such notice". It seems to me entitlement is legal question, and once this is conceded, the "reasonableness" is factual determination to be determined on the factors established by evidence such as listed in Swinamer v. Unitel Communications Inc., S.H. No. 11535, January 11, 1996, not yet reported, at p. 12: For example, in Annand v. Cox Enterprises Ltd. (1992), 1992 CanLII 4666 (NS SC), 111 N.S.R. (2d) 196, the factors were: 1. Previous employment; 2. Character of employment: 3. Standard of employment achieved; 4. Length of service; 6. Availability of similar employment; 7. Self‑imposed limitations on employment." The weight to be attached to factors that are established in evidence is for the trier of facts. Whether or not there was variation of the employment contract or whether or not Ms. Killorn, by conduct or otherwise, agreed to variation is, in my view, question of fact. The issue of claim for mental distress is more difficult to address. There is series of Ontario Superior Court decisions indicating such an issue was not "appropriate" for jury. The Slone v. Toronto Stock Exchange, above, decision of the Ontario Court of Appeal did not meet head on these trial decisions but did indicate that if it were appropriate, specific issues such as those relating to damages could be withdrawn by the Trial Judge and to deny the right of trial by jury by striking jury notice would be premature. On balance, I conclude the defendant has not met the onus of establishing the plaintiff should have her prima facie entitlement to a jury trial denied. Any preliminary findings made by me in this application do not diminish or encroach on the jurisdiction of the Trial Judge to determine at any point of time whether the case or parts of it should be withdrawn or not put to the jury. I conclude the application should be dismissed. 4. GENERAL PRINCIPLES MacNeil v. Hill The Mover (1961) 1961 CanLII 416 (NS CA), 27 D.L.R. (2d) 734 (N.S.C.A.) where Ilsley, C.J. stated, at page 737: "King v. Colonial Homes Ltd. 1956 CanLII 13 (SCC), D.L.R. (2d) 561 at p. 566, [1956] S.C.R. 528 at p. 533 per Cartwright, J.: 'This Court has more than once affirmed that the right to trial by jury is substantive right of great importance of which party ought not to be deprived except for cogent reasons.' MacDonald, J. at p. 748: “The issue before Parker, J. was not whether there should be trial with or without jury, however; it was the vastly different issue as to whether the plaintiff's right to trial by jury should be taken away. By the giving of the jury notice the plaintiff had acquired what has often been described as substantive right, and one which (though subject to deprivation in proper case) is not to be taken away without 'sufficient' or 'cogent' reasons: Starrett v. Com. Atlantic Railway R. Co., supra; Neelands v. Haig, supra; King v. Colonial Homes Ltd., 1956 CanLII 13 (SCC), D.L.R. (2d) 561 at p. 556, [1956] S.C.R. 528 at p. 533. It appears to me that Parker, J., failed to give any or sufficient weight to this vital factor; and that in thus depriving the plaintiff of that right without sufficient or cogent reason he committed an error of principle, and one which worked manifest injustice." jury notice will be set aside where issues are primarily ones of law and the issues of fact are inseparable from issues of law. In Lintaman v. Goodman (1983), 61 N.S.R. (2d) 444 T.D., Burchell J. at p. 322 stated: "What is disputed is the legal effect of the documents and transactions to be reviewed and, with one possible exception (the question of what may have been reasonable notice period under debenture), the questions that arise are questions of law rather than questions of fact. Even the one possible exception have mentioned seems at most to be mixed question of law and fact .I agree that, where possible questions of fact should be separated from purely legal issues and such questions of fact should be left for the jury. in the present case, do not see how such separation can be made in any useful or practical way. An attempt to do so only brings into sharper focus an awareness that the issues of fact in this case are negligible." jury notice may be struck out if the legal issues to be dealt with are sufficiently complex that the jury will have difficulty in deciding the factual matters. Barrow v. Keating (No. 2) (1985), 68 N.S.R. (2d) 289, T.D., Nunn J. jury notice may be struck out where the factual issues are of such technical or scientific nature that jury cannot adequately deal with the matter. Leadbetter v. Brand (1980), 37 N.S.R. (2d) 660 T.D., Hallett J. Electrical Distributors v. W.C.I., 11 C.P.C. (3d) 271, MacAdam, J. at p. 279 The jury is therefore being left to determine, after hearing all the evidence, whether the parties are governed by written agreement or by an oral agreement, which may include, in part, some written documentation. If the jury determines that the agreement is oral, then it is for them to determine the contents and, after receipt of proper instruction, to determine whether there has been breach and the quantum of damages." and also at p. 280: As noted earlier, merely because it is difficult to explain to the jury the law to be applied to the facts is not grounds for disentitling party to its substantive right to have jury, as its trier of facts. The application is therefore denied." COSTS The plaintiff shall have her costs of this application taxed in the amount of $500 inclusive of disbursements payable forthwith.

This was an application by the defendant to strike the plaintiffs Notice of Trial With a Jury in a wrongful dismissal action. The notice had been outstanding for more than 10 months at the time the application was made, and a trial date had been set seven months prior to the application. Dismissing the application with costs, that, after a review of the law and the facts in this case, the defendant had not met the onus of establishing that the plaintiff should have her prima facie entitlement to a jury trial denied.

d_1996canlii5462.txt

IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: v. Kidson, 2007 NSPC 68 Date:20071128 Docket: 1686187 1686188 Registry: Bridgewater Between: Her Majesty the Queen Kidson Judge: The Honourable Judge Anne E. Crawford Heard: September 25, 2007, in Bridgewater, Nova Scotia Charge: s. 253(a) of the Criminal Code of Canada s. 253(b) of the Criminal Code of Canada Counsel: Paul Scovil, for the Crown Alan Ferrier, for the defence By the Court: [1] Matthew Stephen Kidson is charged that on August 12, 2006 in Lunenburg, Nova Scotia he:did while his ability to operate a motor vehicle was impaired by alcohol have care and control of a motor vehicle contrary to section 253(a) of the Criminal Code;And furthermore did having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams in one hundred milliliters of blood have the care and control of a motor vehicle contrary to section 253(b) of the Criminal Code. [2] The relevant facts are as set out in the Crown brief: The accused himself testified that on the date in question he was parked near the Knot Pub in Lunenburg, Nova Scotia. Prior to that he had left home at about 8:30 in the evening to meet some friends. On the way he stopped and picked up eight cans of beer, then drove to the Car Bright car wash, where he parked. He then walked to afriend’s home where he began to consume alcohol. He and his friends then went to the Knot Pub where he continued to drink. As the Pub was about to close he and his friend went to his vehicle. He turned on the accessories to the vehicle. He and his friends were listening to the car stereo. He testified that he went to the vehicle to decide if he was “going to party or walk to his girlfriend’s home”. His vehicle was in first gear with the emergency parking brake on. He testified that he was quite intoxicated and was too impaired to be driving. He was found by the investigating officer behind the wheel of the vehicle in the driver’s seat. He also testified that he did not intend to drive the vehicle. [3] The arresting police officer testified that his attention was drawn to the defendant when he got out of his vehicle and staggered slightly, then got back in. When he was read the breath demand, his reply was, “I’m drunk.” He also told the officer he didn’t understand anything that had been read to him. When the police officer then re-read the demand and caution second time, he told the officer, “I’m too drunk to drive.” However, he did agree to give breath samples, which showed blood alcohol level of 190 at 2:59 a.m. and 170 at 3:19 a.m. [4] The defence took no issue with the readings or the proceedings leading to them, and stated that the only issue was whether or not the Crown had established beyond reasonable doubt that the defendant was in care or control of his motor vehicle at the relevant time. Care or control Section 258(1)(a) Presumption [5] Section 258(1)(a) of the Criminal Code gives the Crown the benefit of presumption of care and control where the accused is found occupying the driver’s seat of vehicle “unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle. in motion”. [6] The burden on the defendant to rebut the presumption on balance of probabilities has been held to be reasonable limit on the guarantee to the presumption of innocence under s. 11(d) of the Charter (R. v. Whyte, 1988 CanLII 47 (SCC), [1988] [7] In the present case the defendant testified that he did not enter the driver’s seat to put the vehicle in motion, but simply to listen to music while he and his friends discussed plans for the rest of the evening. Both of the options he was considering: another party, or spending the night at his girlfriend’s house, were within walking distance of his car, and he said he planned to walk to either location. His testimony is corroborated in part by the testimony of Cst. Rioux that he noticed the defendant in his vehicle when he arrived at that location and by the testimony of Cst. Lewis who said that the defendant told him, “I’m too drunk to drive” when he first spoke to him. [8] From the whole course of conduct of the defendant on that evening, including the fact that he drove the vehicle to the location where it was found before consuming any alcohol and walked to his friend’s house and from his friend’s house back to the pub, as well as his stated intention to leave the vehicle where it was and walk either to the next party or to his girlfriend’s home, I am satisfied that the defendant has rebutted the presumption under s. 258(1)(a). Risk of Danger to Public [9] The defendant having rebutted the presumption, the burden shifts back to the Crown to establish beyond reasonable doubt that he had care and control without benefit of the presumption. As an intent to drive is not part of the care and control offence, the defendant may be convicted if he performs some act or series of acts involving the use of car, its fittings or equipment, whereby the vehicle may intentionally or unintentionally be set in motion, thereby creating danger (R. v. Ford, 1982 CanLII 16 (SCC), [1982] S.C.R. 231; R. v. Toews, 1985 CanLII 46 (SCC), [1985] S.C.R. 119). [10] In this case, the defendant’s acts involved the use of the car’s equipment to turn the key in the ignition to the accessories position and to play music on the stereo. The defendant’s car was parked on a level parking lot with its nose two feet or less from a building; the parking brake was engaged; the vehicle was in first gear and the engine was not running. In order for it to go anywhere but into the wall of the adjacent building, the engine would have to be started, the parking brake released and the transmission put into reverse gear. From these facts I conclude that there was little, if any, danger of the vehicle being set in motion unintentionally, or of its thereby becoming a danger to the public. [11] The only remaining issue and the one on which requested briefs from Crown and Defence is whether or not can or should consider the risk of the defendant changing his mind and deciding to drive while still impaired. [12] This is an issue on which Courts of Appeal across Canada appear to differ. Not surprisingly, the Crown relied on cases such as R. v. Lockerby, 1999 NSCA 122 (CanLII), [1999] N.S.J. No. 349 (C.A.) and R. v. Legrow, [2007] N.S.J. No. 11 (S.C.) in which it was held that risk of change of mind was relevant consideration in deciding whether or not an accused who had rebutted the presumption was nevertheless in care or control of his motor vehicle for purposes of s. 253. Equally unsurprisingly, the Defence relied on cases such as R. v. Martindale, 1995 CarswellBC 1100 (S.C.) and R. v. Decker, 2002 NFCA (CanLII), 2002 CarswellNfld 40 (C.A.) which held that, to quote Decker at paragraph 31: To speculate risk of danger on the basis that an impaired driver might change his mind and for no other reason is to find liability for being intoxicated in vehicle, conclusion which has been rejected by the Supreme Court of Canada. [13] In R. v. Smith, 2005 NSSC 191 (CanLII), [2005] N.S.J. No. 307 (S.C.) Warner, J. conducted thorough review of the case law relating to this issue and concluded: 26 The dictionary defines conjecture and speculation as "guesswork" or "an opinion or theory based on insufficient evidence". Risk assessment should not involve conjecture (Shuparski) or speculation (Decker). It may be speculation or conjecture to conclude that every driver whose BAC exceeds 80, might change his or her mind; however, it would be wrong to preclude trial court from assessing the risk of change of intention, on the facts of the individual case, especially where it is accepted that one effect of the consumption of alcohol is the impairment of judgment. In both Shuparski and Decker, the courts did make an assessment of whether there existed risk that the accused might change his mind, 27 To the extent that the courts in Shuparski and Decker imply that it is not permissible for trial judges to consider, based on the facts in their cases, whether the accused may change his or her mind when assessing the risk of the vehicle being put in motion, the views of most other Courts of Appeal appear to differ. Decisions, in which courts have recognized that the assessment of risk is properly an assessment, based on past and present acts, of future (as yet "unacted") acts, include: Sleeping, or intending to sleep, drivers: R. v. Diotte, supra, (NBCA); R. v. Rousseau, supra, (Que. C.A.); R. v. Pilon, supra, (Ont. C.A.); and R. v. Pelletier [2000] O.J. No. 848 (Ont. C.A.). In the vehicle without present intent to drive: R. v. Lockerby, [1999] N.S.J. No. 349, 1999 NSCA 122 (CanLII); R. v. Hein, [1999] N.S.J. No. 421, 1999 CarswellNS 391 (NSSC); R. v. Rioux (2002) 2000 CanLII 11347 (QC CA), 148 C.C.C. (3d) 160 (Que. C.A.). Disabled and/or awaiting tow: R. v. MacMillan [2005] 2005 CanLII 16073 (ON CA), [2005] O.J. No. 1905 (Ont. C.A.); R. v. Wilford, [2004] O.J. No. 258, 2004 CarswellOnt 311 (Ont. C.A.); R. v. Burbella, [2002] M.J. No. 355, 2002 MBCA 106 (CanLII); R. v. Wren 2000 CanLII 5674 (ON CA), [2000] O.J. No. 756 (Ont. C.A.). Outside vehicle: R. v. Pike, 2004 CanLII 34227 (ON CA), [2004] O.J. No. 4269, 2004 CarswellOnt 4222 (Ont. C.A.); R. v. Cadieux, [2004] O.J. No. 197, 2004 CarswellOnt 315 (Ont. C.A.). [14] From the cases cited, conclude that the risk assessment, as an element of care and control, should include an assessment of the risk of the accused changing his mind; in other words, it is relevant, although not necessarily sufficient, consideration. [15] In reaching this conclusion note that in Lockerby, the defendant was in the passenger seat and crossed to the driver’s seat of an idling vehicle to engage the emergency brake and turn off the engine. In Hein, the defendant’s engine was running and she was “waiting for taxi to come by,” but had not called one or made other arrangements for transportation home; so that, in each case, there were other considerations that added to the public risk or increased the likelihood of the defendant changing his/her mind. [16] In the present case find that there are no elements of risk to the public other than the possibility of the defendant changing his mind about driving; and find that on the facts here that possibility was sufficiently remote to lead me to conclude that the Crown has not established beyond reasonable doubt that the defendant was in care or control of his motor vehicle for the purposes of s. 253 of the Criminal Code. Conclusion [17] The Crown having failed to establish beyond reasonable doubt that the defendant was in care or control of his motor vehicle at the time in question, I find that the defendant is not guilty of either offence charged.

The defendant was charged with impaired driving and operating a motor vehicle with a blood alcohol content over the legal limit. The police first noticed the accused when he got out of his vehicle (which was parked near a pub), staggered slightly and then got back in. The defendant's evidence was that he had only entered his vehicle to listen to music while he decided whether to walk to a nearby party or his girlfriend's house. Defendant found not guilty of either offence charged. From the defendant's whole course of conduct, which included driving the vehicle to the pub before consuming any alcohol, walking to his friend's house and back again to the pub, as well as his stated intention to leave the vehicle where it was, the court concluded that he had rebutted the presumption under s. 258(1(a). Given that the defendant's vehicle was parked on a level parking lot with its nose two feet or less from a building, the parking brake was engaged, the vehicle was in first gear and the engine was not running, the court concluded that there was little, if any, danger of the vehicle being set in motion unintentionally or of it becoming a danger to the public.

d_2007nspc68.txt

J. Q.B.M. A.D. 1994 No. 001581 J.C.M. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF MELFORT BETWEEN: TRACY LANDELL RESPONDENT (PETITIONER) and LORNE LANDELL APPLICANT (RESPONDENT) Irwin Carson for the respondent(petitioner) E. F. Anthony Merchant, Q.C. for the applicant (respondent) JUDGMENT KLEBUC J. August 6, 1996 Sophie Landell has two parents who both love her but who demean the capability and intentions of each other. Each parent seeks the custody of Sophie on the grounds that he or she is best able to meet Sophie's needs. Thus, the central issue is what custody arrangement would be in Sophie's best FACTS During the trial each parent presented volumes of evidence respecting the shortcomings of the other, all with the view of discrediting the other's ability to act as the custodial parent for Sophie. To review all of such evidence presented during the five-day trial would be unproductive and lead to prolix judgment. Therefore, briefly propose to set out those facts necessary to provide historical context and to deal with the distant past conduct of party only to the extent the same is relevant to her or his ability to act as the custodial parent. Lorne is 33 years of age and suffers from injuries he sustained in motor vehicle accident on February 12, 1991. As result of his injuries, he is unable to work and is dependent on disability payments received from an insurer. His injuries do not hinder his parenting capacity. Tracy is 28 years of age, works 48 to 50 hours month for modest salary, and is dependent on social assistance. Tracy and Lorne both live in the City of Saskatoon and each has rented house containing those conveniences necessary to provide satisfactory home for Sophie. The parties met in British Columbia in April of 1991 and began living together in August of that year. During their cohabitation, both engaged in the consumption of alcohol and used prohibited substances. Their relationship was not always harmonious one as evidenced by the fact that Lorne assaulted Tracy on approximately four occasions between late 1991 and mid 1993. Of those incidents, only one took place after Sophie's birth. Tracy became pregnant in late 1992. Lorne was pleased with the event, although his relationship with Tracy remained far from harmonious due to their respective unreasonable conduct. The parties moved to Nipawin, Saskatchewan in early 1993 and married there on June of that year. Sophie was born on July 10, 1993 and both parents immediately participated in her care and nurture. As consequence of being unemployable, Lorne was always available to attend to Sophie's needs. The parties continued to disagree and ultimately separated in February of 1994 without resolving the custody of Sophie. In August of 1994, they arrived at an agreement whereunder each would have Sophie for four-day intervals. Tracy breached the arrangement whereupon the matter of interim custody and access came before this Court. On November 14, 1994, an order issued giving Tracy interim custody of Sophie with Lorne to have Sophie in his care from Monday at 7:00 a.m. to Thursday at 4:00 p.m. In September of 1995, Tracy left Nipawin (where Lorne also resided) and moved to Saskatoon with the expressed intention of enrolling in massage therapy course. In fact her reason in leaving Nipawin was to frustrate Lorne's access to Sophie. The move failed its intended purpose for Lorne consistently travelled to Saskatoon in order to have Sophie's companionship for his allotted time. Tracy petitioned for divorce, custody of Sophie and child support for Sophie. Lorne counter-petitioned for divorce and custody of Sophie. Both petitions were heard in1995 and resulted in a decree nisi of divorce and an ordergranting Tracy custody of Sophie. The custody order wasappealed and the Court of Appeal directed a new trial. Changes in circumstances for Sophie and her parents since thefirst trial have created a materially different factualcontext than the one presented to the trier of fact in thefirst trial. Sophie was not developing according to established norms. Consequently, Sophie\'s doctor in early 1996 referredSophie to the Alvin Buckwold Child Development Centre at theRoyal University Hospital in Saskatoon where she was diagnosedas experiencing global development delay. In recognition ofSophie\'s needs, Lorne has moved to the City of Saskatoonbecause the Buckwold Centre is the only facility inSaskatchewan that offers the specialized attention Sophierequires. He further wished to play an active role in her training. Many persons testified as to the fitness of Tracy or Lorne to act as the custodial parent for Sophie. Their evidence essentially confirmed their respective credibility as child caregivers. Dr. Snyder, Wilma Clark and Dr. Schubert testified as expert witnesses. Lorne filed report by Dr. Cleland, clinical psychologist, which did not consider. THE LAW The issues before me arise in the context of divorce action. Consequently, the provisions of ss. 1(1), (8), (9) and (10) of the Divorce Act, R.S.C. 1985, c. (2nd Supp.) apply. Of particular significance are the provisions of ss. 1(8), (9) and (10) which provide: (8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child. (9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as parent of child. (10) In making an order under this section, the court shall give effect to the principle that child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact. In determining what is in the best interest of the child, as directed by ss. 1(8), this Court has consistently applied the principles outlined by Lord Simonds in McKee v. McKee, 1951 CanLII 305 (UK JCPC), [1951] D.L.R. 657 (P.C.) at p. 666 where he states: [T]he welfare and happiness of the infant is the paramount consideration in questions of custody To this paramount consideration all others yield. What is meant by the term "paramount consideration" is discussed in J. and another v. C. and others, [1969] All E.R. 788 and in K.K. v. G.L. and B.J.L. (1985), 44 R.F.L. (2d) 113 (S.C.C.). In J. v. C., Lord MacDermott at pp. 820-821 states: The second question of construction is as to the scope and meaning of the words ". shall regard the welfare of the infant as the first and paramount consideration." Reading these words in their ordinary significance, and relating them to the various classes of proceedings which the section has already mentioned, it seems to me that they must mean more than that the child's welfare is to be treated as the top item in list of items relevant to the matter in question. think they connote process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child's welfare as that term has now to be understood. That is the first consideration because it is of first importance and the paramount consideration because it rules on or determines the course to be followed. Subsection 1(10) of the Act expands upon McKee v. McKee by directing the Court to give effect to the principle that child should have as much contact with her or his parents as is consistent with the child's best interest. While parental conduct is of importance, ss.1(9) of the Act provides that the Court is only to take into consideration such conduct to the extent that it is relevant to the ability of the person to act as parent of the child. Mr. Justice Halvorson of this Court in Keyuk v. Keyuk (1993), 1993 CanLII 9108 (SK QB), 114 Sask. R. 222 states the principle clearly at p. 224: There is no convincing evidence however, to suggest this trait constitutes conduct which is ". relevant to the ability of that person to act as parent of child" as envisaged by s. 1(9). He [the father] has treated the mother roughly in the past. Perhaps, she must accept some criticism too. That was yesterday; this is today. DISCUSSION Parenting Resources and Plans Tracy spends qualitative time playing with and caring for Sophie while maintaining an active social life and working. Her current employment is inadequate; therefore, she proposes to study massage therapy starting in the fall of 1996. This course will take two years to complete and will involve intensive study on her part. During much of this period, Sophie must be placed in the care of sitter or day care facility for Tracy has few family members in Saskatoon to call on for meaningful child care. Her brother is university student and thus involved in his own activities. She has step-aunt who has three children of her own. question her availability to help despite her willingness, as do Tracy's great aunt who is 70 years of age. Lorne provides qualitative care for Sophie, including play and teaching. With respect to the latter, he undertook steps to help Sophie well in advance of the Buckwold Centre assessment of his daughter's need. He had purchased educational toys and equipment with the view of encouraging Sophie's development. More important, he patiently assists her in the use thereof. The very favourable comments by those who testified on his behalf confirmed my assessment of his child care skills and dedication to his daughter. Because ofhis employment disability, he remains available to providefull-time care for Sophie and exhibits a very strong desire todo so. When needed, his mother is also available to help in Sophie's care. Observation of the Experts Dr. Schubert interviewed Sophie and Lorne on several occasions, including one occasion where he attended at Lorne's home and observed their interaction. Based on his observations and tests, including the Minnesota Multiphasic Personality Inventory test he administered for Lorne, he had no reservation in opining that Lorne had good parenting skills and nothing in his character diminished his suitability to act as custodial parent. In his view, Lorne's previous conduct did not impair his ability to care for developmentally delayed child. Dr. Richard Snyder, pediatrician with the Buckwold Centre, testified that he had examined Sophie and found her delayed in language development and motor skill development. In his opinion, early intervention is required consisting of Sophie attending special preschool sponsored in part by the Buckwold Centre and receiving speech therapy and hand-eye coordination therapy available at the Buckwold Centre. In his view, Sophie needs the best stimulation available together with consistency and stability in her home life in order to overcome her developmental problems. To such end Sophie should live at one home, sleep in the same bed every night and receive consistent instruction from her parents and other caregivers. Inconsistency in parenting approaches in his view will further delay Sophie's development. Although he spoke favourably of Tracy, in my view, he had insufficient contact with Sophie's parents on which to base credible assessment of their comparative parenting skills. Wilma Clark, also opined that Sophie is developmentally delayed and recommended the program outlined by Dr. Snyder. In her report, Ms. Clark at p. notes the following: The other concern is the need for some consistency and stability in her [Sophie's] care. It is particularly important for children who are showing developmental and learning problems that they be in stable and secure environment where there can be consistent approach to management and one that is able to provide additional teaching and intervention. Dr. Schubert concurred with the approaches by Clark and Snyder concerning Sophie. Sophie will start the Buckwold Centre program in the fall of 1996 with the full support of her parents. Assaults and Misconduct While the past physical abuse of Tracy by Lorne is not acceptable, it is only relevant in the instant case if it affects his ability to parent Sophie. See Keyuk v. Keyuk. conclude that it does not. In arriving at my conclusion relied on the learned opinion of Dr. Schubert that nothing in Lorne's character or past conduct detracts from his ability to care for Sophie or to deal with Tracy concerning their daughter's welfare. Dr. Schubert further observed that Sophie and Lorne enjoy good parent-child relationship. The fact that Lorne has avoided other acts of abuse over the last three years has led me to be less concerned with his past conduct. Though baited by Tracy's stepfather to react violently on one occasion, and subjected to tense and emotionally trying situations concerning Sophie's custody on several occasions, he has avoided physical aggression. observed that both parents over the last year have taken more cooperative approach in their dealings with each other. Each parent is a capable caregiver. But for Sophie's special needs, would have no hesitation in awarding joint custody with Sophie living with each parent during alternative weeks. Unfortunately, Sophie's special needs currently require that she be under the direction and in the care of one parent. have no hesitation in finding Lorne to be better able to meet Sophie's current needs because he is available on 24-hour basis, has demonstrated caring nature, is focused on Sophie's needs, and his mother is available to assist when required. Presently, Tracy is unable to provide the degree of care and direction Sophie requires without significantly prejudicing her own development. Accordingly, I award Lorne custody of Sophie. Tracy will have weekly access to Sophie on two non-consecutivedays between 10:00 in the forenoon and 6:00 in the afternoon,excepting those hours on such days when Sophie is in school orreceiving therapy, plus an additional period of two hoursbefore six o\'clock in the afternoon on a third day. The third day shall not be on Saturday, Sunday, or statutory holiday falling on Monday. It is my intention that Sophie sleeps inthe same bed every night and receives one standard ofconsistent directions until the degree of consistency outlinedby Clark and Snyder is relaxed by the Buckwold Centre. In the first instance, leave it to Tracy and Lorne to fix the prescribed access dates and times having regard to Tracy's hours of work and Sophie's needs. If difficulties arise in arranging appropriate access, either party may apply to this Court for further directions. No costs are awarded to either party.

A decree nisi and an order granting custody to the mother was made in 1995. Upon appeal the Court of Appeal directed a new trial. Changes in circumstances included the fact that the child was developmentally delayed and required a special program. A pediatrician testified that inconsistency in parenting approaches would further delay the child's development. HELD: Custody was awarded to the father. 1)Each parent was a capable caregiver. However, the father was available to provide full-time care due to an employment disability and exhibited a strong desire to do so. The past physical abuse of his former spouse was not considered relevant as it did not affect his ability to parent the child. 2)The mother was to have weekly access on two non-consecutive days for eight hours and two hours on a third day. The child was to sleep in the same bed every night.

1996canlii6900.txt

IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Stone, 2009 NSPC 10 Date: March 18, 2009 Docket: Case Number(s) 1882438 Registry: Halifax v. Justin David Stone DECISION ON VOIR DIRE Judge: The Honourable Judge Marc C. Chisholm Heard: March 18, 2009, in Halifax, Nova Scotia Charge: (1) s.5(2) CDSA, possession of cannabis (marihuana) for the purpose of trafficking (2) s.5(2) CDSA, possession of cocaine for the purpose of trafficking (3) s.88(1) CC, possession of weapon for purpose dangerous to the public peace (4) s.90 CC, carrying concealed weapon (5) 733.1(1)(a) CC, breach of Probation Counsel: Shaun O’Leary, Federal Crown Darrell Martin, Provincial Crown Nicole Campbell, for the defense [1] Mr. Stone is charged with possession of cocaine for the purpose of trafficking, possession of cannabis marihuana for the purpose of trafficking, possession of weapon for purpose dangerous to the public peace, carrying concealed weapon, and breach of probation. [2] The defense have alleged a violation of the accused’s section 8 and section 9 Charter rights. The defense have also contested the voluntariness of a statement given by the accused to the police. The defense seek an order excluding admission of the accused’s statement to the police and exclusion of the results of the search of the accused’s person. The motion was heard on voir dire. Evidence and findings of fact [3] There were three witnesses who gave evidence on the voir dire. The facts are not in dispute. [4] On February 6, 2008, Constable Lynch and Constable Cromwell were on foot patrol on Spring Garden Road in Halifax, Nova Scotia. As they were walking west just beyond the Spring Garden Road courthouse, they passed the accused who was walking east on the sidewalk toward the courthouse. The officers noted strong smell of freshly burned cannabis marihuana coming from the accused. They turned and, when the accused stopped outside the courthouse, the officers approached him. There was no one else around. Constable Lynch noted he was smoking cigarette. Constable Lynch asked his name and he promptly gave it. Constable Lynch explained that the reason they approached him was because they detected strong smell of marihuana coming from him. She asked him if his cigarette was marihuana cigarette. The accused responded that it was regular cigarette but he had just smoked marihuana cigarette. Constable Lynch asked him where. The accused answered: “In front of the Park Lane.” The Park Lane is mall on Spring Garden Road within five minute walk of the courthouse. Constable Lynch asked him where the roach was and he told her he dropped it at the mall. He said he did not have any other drugs on his person. Mr. Stone was described as very cooperative. The officer noted that the accused appeared tired, spoke slowly and was very quiet. Neither officer had prior contact with Mr. Stone and, thus, no knowledge of his usual demeanor and speech. Constable Lynch told the accused she was going to run check on him by means of her police radio. While she ran the check on the defendant he talked with Constable Cromwell. He told Constable Cromwell that he was addicted to marihuana. Constable Lynch was uncertain if she was told that information before she arrested Mr. Stone. The accused indicated to both officers more than once that he had meeting at the court and was concerned that he was going to be late. Constable Lynch told him not to worry and that he had to deal with this matter first. [5] The radio CPIC check revealed that the accused was on condition to keep the peace and be of good behavior and was pending on possession of an illegal drug charge. Following the CPIC check, Constable Lynch arrested the accused for possession of cannabis marihuana. Constable Lynch stated that, given the accused’s recent use of cannabis marihuana, the time of day of such use of cannabis marihuana, the fact that he smoked the cannabis marihuana at public mall, that he consumed cannabis marihuana before returning to meeting at court, that she had reasonable grounds to believe he was currently in possession of more cannabis marihuana. [6] Relevant to her grounds to arrest Mr. Stone, Constable Lynch testified that she had received training on the smell of marihuana which involved her being present for test burn of marihuana in 2007. She stated that she grew up with brother who was drug addict. She testified that she had experience observing the smell of marihuana and could distinguish strong smell from faint smell. The stronger the smell, the more recently the drug was smoked. [7] The search of Mr. Stone resulted in the discovery of $515 cash, knife, cell phone, ten one-inch baggies containing total of 12.4 grams of cannabis marihuana, and eight tin foil pieces of crack cocaine total of 1.39 grams in Dentyne gum package. The search involved pat down head-to-toe search by Constable Cromwell, including the officer sliding his hand around the accused’s waistband. No clothing was removed. The search was conducted on the sidewalk outside of the courthouse. [8] Constable Lynch wasn’t clear in response to questions concerning what she would have done if Mr. Stone had been uncooperative. She testified that when she approached Mr. Stone she didn’t want to over-react or under-react to having smelled the cannabis marihuana. At the time of this incident, Constable Lynch had been peace officer for three and half months. [9] accept the evidence as I’ve set it out above. also find that Constable Lynch, as result of her experience with her brother and her police training on the smell of marihuana, was able to identify the smell of burned marihuana and to distinguish strong smell from faint smell of burned marihuana. find that the stronger the smell of burned marihuana, the more recently it was smoked. [10] accept the evidence of Constable Lynch and find that there was strong smell of recently burned marihuana coming from the person of Mr. Stone. [11] accept the evidence and find that Mr. Stone appeared tired, spoke slowly and was very quiet. accept that Constable Lynch believed these observations to indicate that Mr. Stone was under the influence of marihuana. [12] accept the evidence of Constable Lynch and find that her grounds to arrest were: (a) strong smell of freshly burned marihuana coming from the accused; (b) observations of the accused’s physical condition which Constable Lynch considered to be evidence of Mr. Stone being under the influence of marihuana; (c) that the CPIC check indicated that the accused was pending on charge contrary to the CDSA; (d) that it was 10:00 in the morning and the accused was outside the courthouse on public sidewalk and planning to go into the courthouse for meeting; (e) that the accused admitted to recently smoking marihuana cigarette in public place. [13] This rather simple fact situation gives rise to number of legal issues. [14] The defense submits that Mr. Stone was detained from the outset of his contact with the police as he was suspect in relation to the offence of possession of cannabis marihuana and, therefore, should have been advised of his rights. The Crown submits that, prior to his arrest, Mr. Stone was not detained and, therefore, no police duty under the Charter was triggered prior to arrest. The leading case on the issue of detention is Therens, 1985 CanLII 29 (SCC), [1985] S.C.R. 613. In Therens, the Supreme Court indicated that detention may involve the deprivation of liberty by physical restraint or where police officer or other agent of the state assumes control over the movement of person by demand or direction which may have significant legal consequences and which prevents or impedes access to counsel. There must be some form of compulsion or coercion to constitute an interference with liberty or freedom of action to constitute detention. [15] In my view, detention from the point of first contact has not been proven. The smell of cannabis marihuana from Mr. Stone caused Constable Lynch to commence an investigation of possible offense. She approached Mr. Stone. The evidence doesn’t establish that she had concluded that any offence had been or was being committed. She asked him his name. She told Mr. Stone why she approached him. He gave an explanation for the smell. She made observations of his condition and then decided to arrest Mr. Stone. [16] During this initial time, Mr. Stone was not under arrest. He was not physically restrained. He hadn’t been given any order or direction not to leave. Mr. Stone elected not to testify on the voir dire, so there is no evidence of what he was thinking at the time other than that disclosed by his comments to the police. There is nothing in the evidence to cause me to conclude that Mr. Stone felt he was not free to leave during this time. I’m not satisfied that Mr. Stone was detained during this time. [17] However, when Mr. Stone expressed desire to leave for his meeting at court and was told that he had to deal with this matter first, that statement by Constable Lynch, in my view, constituted direction to Mr. Stone restricting his liberty and, therefore, constituted detention of him. [18] Before dealing with the application of the law to the facts after Mr. Stone was detained, let me address the issue of voluntariness of his statement to the police. On the evidence, there was no threat, promise or inducement of any nature made to Mr. Stone to cause him to give his statement to the police. think it likely that Mr. Stone believed that his statement to the police was entirely or largely exculpatory. Although there was no police caution, I find that his statement has been proven to be free and voluntary. [19] The statement of Mr. Stone to the police occurred before Mr. Stone was detained, and, therefore, before the triggering of a police duty to advise him of his rights. I find no section 10(b) violation prior to Mr. Stone’s statement to the police. [20] have found that the direction to Mr. Stone that he had to deal with this matter before he could leave amounted to detention of him. Was this detention lawful or arbitrary? In my view, Constable Lynch had good and valid reasons to detain Mr. Stone in order to continue her investigation. find the investigative detention of Mr. Stone was lawful. [21] Although the detention of Mr. Stone was not arbitrary, upon his detention he was entitled to be informed of the reason therefor and to be informed of his right to retain and instruct counsel without delay, per section 10 of the Charter. This did not occur for period of couple of minutes. During this time, Constable Lynch was running CPIC check and conferring with colleagues. No evidence was elicited from Mr. Stone during that time. After this couple of minutes Mr. Stone was arrested, searched and advised of his rights. [22] The defense submits that the arrest was unlawful. The defense argument is that authority to arrest for summary offense is limited to circumstances when the officer has found the accused committing the offense. In this case, the officer’s stated reason for arrest was based upon reasonable grounds to believe an offense was being committed rather than her having found the accused committing the offense. [23] Section 495(1) states: (1) peace officer may arrest without warrant (a) person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence; (b) person whom he finds committing criminal offence; or (c) person in respect of whom he has reasonable grounds to believe that warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found. [24] Constable Lynch’s evidence was that, for several reasons which she noted, she felt she had reasonable grounds to believe Mr. Stone had cannabis marihuana on his person. [25] In the Crown brief, at paragraphs 38 and 39, the Crown submitted that Constable Lynch had reasonable and probable grounds to arrest the defendant. [26] In Stevens (1976), 1976 CanLII 1411 (NS CA), 18 N.S.R. (2d) 96, the Appeal Division of the Nova Scotia Supreme Court held: The requirement of reasonable and probable grounds relates only to arrest without warrant in indictable offences (s.450(1)(a)) not to summary conviction offences such as creating disturbance. In order to arrest person without warrant for summary conviction offence it is not sufficient for the arresting officer to show that he had reasonable and probable grounds to believe such offence had been, or was about to be, committed; rather, he must go further and show that he found situation in which person was apparently committing an offence. [27] What does “find committing” mean? [28] In Biron, 1975 CanLII 13 (SCC), [1976] S.C.R. 56 the Supreme Court of Canada, in dealing with s.495 (1) held: Paragraph (b) applies in relation to any criminal offence and it deals with the situation in which the peace officer himself finds an offence being committed. His power to arrest is based upon his own power of observation. Because it is based on his own discovery of an offence actually being committed there is no reason to refer to belief based upon reasonable and probable grounds. .. [T]he validity of an arrest under this paragraph must be determined in relation to the circumstances which were apparent to the peace officer at the time the arrest was made. .. [T]he power to arrest without warrant is given where the peace officer himself finds situation in which person is apparently committing an offence. [29] Both counsel referred the court to the decision of the Saskatchewan Court of Appeal in Janvier, 2007 SKCA 147 (CanLII), [2007] 227 C.C.C. (3d) 294. In Janvier, the peace officer stopped truck operated by Mr. Janvier because it had broken headlight. When the officer got close to the truck he detected an odor of burned marihuana. This observation led him to conclude that someone had been smoking marihuana in the truck and to suspect that more marihuana would be found in the truck. The officer arrested Mr. Janvier and searched him and the vehicle. Eight grams of marihuana were found on Mr. Janvier, and cash, and list of contacts consistent with trafficking. He was charged with possession of cannabis marihuana for the purpose of trafficking. The arrest was found to be unlawful and the cannabis marihuana excluded. The decision was upheld on appeal. [30] At paragraph 48, after reviewing numerous court decisions, the Court of Appeal summarized its position, thus: In summary, as matter of statutory construction, s.495(1)(b) does not permit an arrest based on the smell of burned marihuana alone. An officer smelling burned marihuana does not find the person committing the offence of possession of marihuana. If, contrary to my primary conclusion, s.495(1)(b) permits reliance upon an inference based on observation (i.e., smell) the smell of burned marihuana alone is not sufficient to support reasonable inference that more, un-smoked marihuana will be present. [31] In the Janvier case, the Court of Appeal concluded that the arresting officer did not find Mr. Janvier committing the offense (see paragraph 29) and viewed the officer’s basis for arrest as nothing more than “suspicion.” [32] The Crown argues that the Janvier decision can be distinguished on four bases: (a) It relates to situation where the smell of burned marihuana alone was relied upon and where the officer had no special knowledge or training; (b) In Janvier, there were other possible explanations for the smell of cannabis marihuana in the truck, other than Mr. Janvier having been smoking cannabis marihuana whereas, in the present case, Mr. Stone was the only source of the odor of cannabis; (c) In the present case, the officer’s evidence regarding the smell of cannabis marihuana is bolstered by Mr. Stone’s admission of recent possession and consumption of cannabis, supported by the officer’s observation of Mr. Stone’s symptoms consistent with recent consumption; and (d) In the present case, the time and place of the accused’s prior smoking of cannabis marihuana and the fact that he was pending on drug possession charge provide additional grounds for believing that the accused was in possession of un-smoked cannabis marihuana. [33] Does the Nova Scotia Court of Appeal decision in Stevens, in defining the authority of an officer to arrest without warrant for summary offence, permit the officer to rely on an inference? am, of course, bound by the decision of the Nova Scotia Court of Appeal and the Court’s interpretation of the Biron decision. [34] repeat the words of the Nova Scotia Court of Appeal in Stevens: The requirement of reasonable and probable grounds relates only to arrest without warrant in indictable offences (s.495(1)(b)) not to summary conviction offences such as creating disturbance. In order to arrest person without warrant for summary conviction offence it is not sufficient for the arresting officer to show that he had reasonable and probable grounds to believe such offence had been, or was about to be, committed; rather, he must go further and show that he found situation in which person was apparently committing an offence. [35] The Court of Appeal did not provide further clarification on the meaning of “a situation in which person was apparently committing an offence.” In Janvier, the primary finding of the Saskatchewan Court of Appeal was that, to find someone committing an offence, the arresting officer could not rely on an inference. The Court went on to say that, if an inference is permitted, then the issue is whether the officer’s subjective belief was objectively reasonable. [36] number of my fellow Nova Scotia Provincial Court Judges have addressed this issue. [37] In S.T.P., [2008] N.S.J. No. 482, His Honour Campbell, J.P.C., dealt with this issue. S.T.P. was found one evening in the parking lot of the McDonald’s restaurant in Spryfield with twelve bags of white powder and $325 cash in his pockets. The items were located by search incident to arrest. The issue was the lawfulness of the arrest. [38] The circumstances observed by the arresting officer were: S.T.P. was seated in the back seat of moving motor vehicle. S.T.P. appeared to take note of the police and quickly turned in his seat. The vehicle pulled off the street at the first opportunity into the McDonald’s parking lot. The police checked the license plate and determined that, on two occasions, it had been involved in bail violations, one only two days prior. The officer turned and followed the car into the parking lot. On approaching the car, he smelled what he believed to be the odor of burned marihuana coming from inside the vehicle through the open rear window. The occupants were still in the car. When the passenger door was opened, he detected strong smell of marihuana coming from within the vehicle. S.T.P. was arrested for possession of marihuana. He was searched incident to arrest. [39] Judge Campbell stated his conclusion, at paragraphs 53-54: Constable Shannon did smell substance that he reasonably believed to be burned marihuana. While he had no special training and could not lay claim to extraordinary olfactory acuity, he was, like many people, aware of what burned marihuana smells like. That was in the context of situation where the vehicle involved had been involved in bail violations, the back seat passenger was behaving nervously having seen the police, and the driver had apparently tried to put some distance between the car and the police as soon as possible. [40] That context supports the reasonableness of the conclusion of one who, although without special olfactory gifts or training, has normal sense of smell and not the altogether unusual ability to at least recognize the smell of burned marihuana. Had the smell of marihuana been the sole foundation of the grounds for arrest, the officer would have to show something beyond those rather unremarkable abilities. Whereas, here, the smell is part of larger supporting context and, with that context, forms practically coherent and logically consistent basis for reasonable conclusion that marihuana may be present, there is no requirement for special training or ability. [41] At paragraph 35, Judge Campbell said this: Unfounded suspicions or those that cannot be reasonably articulated cannot be raised to the level of reasonable grounds by the unaided sense of smell. In situations where the police have shown objective evidence to support the acuity of the olfactory observations, the sense of smell may be used to establish reasonable grounds. In other situations, the smell of marihuana must be considered in the context, not of any extraordinary sensory abilities, but of surrounding circumstances that logically support the reasonableness of the assertion marihuana is probably present. [42] In my view, Judge Campbell’s decision clearly accepts the argument that, in appropriate circumstances, the Court may accept as reasonable an inference that the accused is presently in possession of marihuana. Having said that, noted that Judge Campbell, setting out test in paragraph 54, used the phrase “marihuana may be present,” and in paragraph 35 that “marihuana is probably present.” Is this the same standard? How does this compare with “apparently finds committing”? [43] In Blois, [1998] N.S.J. No. 238 (Associate Chief Judge J. Gibson), the arresting officer observed car traveling slowly. traffic stop was executed. Blois was the front-seat passenger. When the officer approached the car, he noted smell of burned marihuana coming from the inside of the vehicle. The driver was asked to exit the vehicle. She did so. The officer did not detect the smell of marihuana from her person. The officer then asked Mr. Blois to exit the vehicle. He did so. The officer detected the smell of marihuana on him. The officer had considerable experience investigating drug cases and had been present for prepared marihuana burn to become familiar with the smell of burned marihuana. The officer arrested and searched Mr. Blois. [44] Associate Chief Judge Gibson found that when the officer directed Mr. Blois to step out of the car for the purpose of investigating the offence of possession of marihuana he was detaining him. The search of Mr. Blois without his informed consent was unlawful. Based on that Charter violation, Associate Chief Judge Gibson excluded the one gram of marihuana found on Mr. Blois. The decision was not dependant on the issue of whether the officer had sufficient basis for arrest. [45] In Lee, [2000] N.S.J. No. 40 (Williams, J.P.C.), traffic stop was executed on the car being driven by Mr. Lee because the car did not have license plate. Mr. Lee could not produce license. He was detained on that basis and returned to the police station. At the station, the officer noted smell of fresh marihuana emanating from Mr. Lee. He arrested Mr. Lee and conducted strip search, locating 30 grams of marihuana. The officer stated that during his ten years of police experience he was familiar with the smell of marihuana and had been present for prepared burn of marihuana. [46] Judge Williams found that the Crown had not proven that the officer had any special training in drug smell identification nor any special ability in that regard. He found that the Crown had not established reasonable and probable grounds for the arrest. He found the officer relied on his sense of smell alone and hunch. Given the violation of the accused’s rights and the invasive nature of the search, he excluded the marihuana. [47] In Curren (2003), NSPC 33 (Beach, J.P.C.), traffic stop was conducted. The accused was one of two back-seat passengers. The officer stated that the driver appeared nervous. There was smell of marihuana in the vehicle. The driver and passengers were searched. Judge Beach found that the Crown had not proven that the officer had reasonable grounds for the search of Mr. Curren. [48] In all of these cases, the offence being investigated was simple possession of marihuana and the argument regarding the legality of the arresting officer’s action was in terms of reasonable grounds. There was no discussion of the meaning of “find committing.” These cases do not discuss the Supreme Court of Canada decision in Biron or the Nova Scotia Court of Appeal decision in Stevens. This approach is consistent with that of many other trials. (See review of such cases in Huebschwerien, [1997] Y.J. No 24, Lilles, Terr.Ct.J.) [49] Based upon my review of the jurisprudence, would summarize the law in relation to arrest without warrant for summary offense thus: The Crown must prove that the arresting officer subjectively believed that she had found an offense apparently being committed and that her belief was objectively reasonable. The officer may rely on an inference in forming her belief. The assessment of objective reasonableness of the officer’s belief necessitates consideration of all of the facts or circumstances known to the officer at the time. [50] In these types of cases, the key inference is that marihuana smokers, like tobacco smokers, carry supply with them. Such an inference will not always be objectively reasonable. (See Janvier.) [51] In the present case, there were the following relevant facts or circumstances: (a) Constable Lynch, although very new to the police force, had some special training and personal experience with family member who was drug addict to enhance her ability to identify the smell of burned marihuana; (b) Constable Lynch believed she smelled strong, fresh odor of very recently burned marihuana; (c) the accused, Mr. Stone, was the only source of the odor of marihuana; (d) Mr. Stone, to explain the smell of marihuana on his person, volunteered that he recently smoked marihuana; (e) the officer observed that Mr. Stone showed symptoms of being under the influence of marihuana; (f) Mr. Stone admitted smoking the marihuana in front of public mall before returning to the courthouse for meeting; (g) Mr. Stone was pending on drug possession charge; (h) the CPIC check indicated Mr. Stone was bound by condition to keep the peace and be of good behaviour (a condition he would appear to have admitted violating by smoking marihuana cigarette); and (i) while not articulated as reason by Constable Lynch, the accused was anxious to leave to go into the courthouse. (Constable Lynch did state that she didn’t know whether the accused’s claim that he had meeting was truthful.) [52] On the other hand: (a) Mr. Stone was cooperative; (b) he denied being in possession of drugs; and (c) the public sidewalk in front of the Provincial Court building is not place one would expect persons to be under the influence of, or in possession of, an illicit drug. [53] In my view, the facts or circumstances known to the arresting officer at the time of arrest provide a sufficient basis to conclude, and I do conclude, that the officer’s subjective belief that Mr. Stone was in possession of marihuana was objectively reasonable. Therefore, I find that Constable Lynch had the authority to arrest for present possession of marihuana pursuant to section 495(1)(b) of the Criminal Code. Further, find that Constable Lynch had reasonable grounds to believe that the public interest could not be satisfied without arresting Mr. Stone in order to secure evidence relating to the offence, pursuant to section 495(2)(d)(iii). I accept the evidence of Constable Lynch and find that the search of Mr. Stone was incident to his arrest and for the lawful purpose of securing evidence. In my view, the manner of search, given the nature of the alleged offence was reasonable. [54] I am not satisfied that the accused’s section 8 or section 9 rights under the Charter were violated. [55] The violation of the accused’s section 10(b) right upon detention was brief and no evidence was obtained as result of the breach; therefore, no exclusion of evidence will result. [56] If am in error in concluding that the law permits an arresting officer to rely on an inference to “find person committing an offence,” let me say that, without the inference in this case, the arresting officer had insufficient cause to arrest Mr. Stone. In that case, there would have been violation of Mr. Stone’s section and section Charter right. However, without going into great detail, let me say that, if I had found a breach of the accused’s section 8 and/or section 9 rights, a section 24 analysis would have resulted in a decision not to exclude the evidence given due to:(a) the seriousness of the charges facing the accused;(b) there being no bad faith on the part of the police;(c) the evidence not being conscriptive; and(d) the fact that the accused could have been lawfully arrested for admittedly having violating the condition to keep the peace and be of good behaviour. [57] The motion to exclude the accused’s statement to the police is denied. [58] The motion to exclude the results of the search of the accused’s person is denied. Dated at Halifax, Nova Scotia, this day of 2009. Judge Marc C. Chisholm

The accused was arrested for possession of drugs and a weapon, and for breaching his probation. Police testified they saw him walking down the street at 10am and noticed a strong smell of marijuana. When approached, he was smoking a cigarette in front of the provincial courthouse. He said he had smoked marijuana on the street, but did not have any other drugs on him. After they spoke, he asked to leave, saying he was late for a court appointment. The police asked him to deal with this matter first, ran a CPIC check and discovered the accused was on probation and required to keep the peace and be of good behaviour. He was not cautioned/advised of his right to counsel until he was arrested on the basis of what the Crown claimed was a reasonable belief the accused possessed drugs. Police conducted a 'pat-down' search, and found drugs (marijuana and cocaine) and a weapon. The accused argued his Charter rights were violated (s. 8, 9 and 10(b)) and asked the court to exclude the evidence obtained in the search. He also argued his admission/statement was not voluntary and should be excluded on the basis that it was given in the context of a violation of his Charter rights. Motions to exclude the statement and evidence obtained in the search denied. The accused's s. 8 and 9 rights were not breached. While his s. 10(b) rights were violated when he asked to leave and the officers asked him to deal with this first (which amounted to detention), his admission/statement was made before the detention and was voluntary. Further, no evidence was obtained as a result of the breach since the search only took place after the arrest/cautioning. After reviewing the relevant jurisprudence, the court concluded: the Crown must prove the arresting officer subjectively believed they found an offence apparently being committed; that subjective belief must be objectively reasonable; police may rely on an inference in forming their belief (such as the inference that marijuana smokers typically carry a supply with them); and that inference must be objectively reasonable in light of the circumstances and facts of the case. Here, the officer's subjective belief that the accused was in possession of drugs was objectively reasonable. The court accepted her evidence that she had special training in identifying the smell of marijuana and distinguishing between a strong and faint smell of marijuana. The CPIC check showed he was on probation in relation to a drug charge. Since the officer had the authority to arrest under s. 495(1)(b) of the Criminal Code, the arrest was lawful. The search taking place incidental to the arrest was reasonable. In obiter, the court went on to say that, even if the accused's s. 8 and 9 Charter rights had been breached, an analysis under s. 24 would lead to a decision not to exclude the evidence: it was not conscriptive; the offence was serious; there was no bad faith on the part of police; and the accused could have lawfully been arrested for admitting to what was a breach of his probation.

5_2009nspc10.txt

E. J. Gunn NOVA SCOTIA COURT OF APPEAL Citation: Potter v. Nova Scotia Securities Commission, 45 Date: 20060419 Docket: CA 256947 Registry: Halifax Between: The Nova Scotia Securities Commission v. Daniel Potter Respondent Judges: Bateman, Cromwell and Saunders, JJ.A. Appeal Heard: March 24, 2006, in Halifax, Nova Scotia Held: Leave to appeal is granted and the appeal is allowed; application for fresh evidence is dismissed per reasons for judgment of Cromwell, J.A.; Bateman and Saunders, JJ.A. concurring. Counsel: Agnes MacNeil, for the Appellant Respondent in person Edward Gores, Q.C., for the Attorney General of Nova Scotia Reasons for judgment: I. INTRODUCTION: [1] At the root of this appeal is the question of how much “elbow room” the courts should give the Securities Commission to carry out its regulatory duties. In my view, the short answer in this case is quite lot. [2] The Commission ordered an investigation of the trading in the securities of Knowledge House Inc., a company of which Mr. Potter is President, CEO and Chair of the Board. Mr. Potter applied to the Supreme Court of Nova Scotia for certiorari to quash that investigation. number of procedural issues arose. They became the subject of two interlocutory applications one by Mr. Potter and the other by the Commission before Richard, J. in Supreme Court chambers. His order gave rise to this appeal by the Commission. [3] Mr. Potter’s interlocutory application before the chambers judge asked for orders requiring the Commission to file complete return as required by Civil Procedure Rule 56.08, staying proceedings pending the judicial review application and returning to him the contents of his email documents which had been obtained by the Commission. In effect, Mr. Potter said the return should contain the fruits of the investigation which the Commission had ordered and that he should have access to virtually everything the investigators had obtained. The Commission’s interlocutory application requested orders setting aside notice of examination issued by Mr. Potter to one of the investigators, striking out one of Mr. Potter’s affidavits and striking out amendments to his originating notice. [4] The chambers judge essentially granted Mr. Potter’s application and dismissed the Commission’s. The judge ordered the Commission to file return which would include virtually all of the fruits of the investigation in relation to Mr. Potter and upheld (with some variation) the notice of examination which Mr. Potter had issued to the investigator. [5] The Commission seeks leave to appeal. Its main submission is that the underlying judicial review application is improper and premature and that, as a result, the procedural orders under appeal should not have been made. In short, the Commission says that Mr. Potter ought, in the first instance, to take his complaints about the investigation to it, not to the courts. [6] For the reasons which follow, agree with the Commission’s position. I would therefore grant leave, allow the appeal and direct that the underlying judicial review application be stayed. [7] Although many issues are raised on appeal, it is only necessary, in my view, to deal with two of them: 1. Should we consider the appropriateness of the underlying judicial review application on this interlocutory appeal? 2. If so, should the underlying judicial review application be stayed or dismissed with the result that it is not necessary to address the other issues raised? ANALYSIS: A. Should We Consider the Appropriateness of the Underlying Judicial Review Application on this Interlocutory Appeal? [8] The Commission’s fundamental argument on appeal is that the underlying judicial application is inappropriate and premature. It follows that the chambers judge should not have entertained Mr. Potter’s interlocutory applications. If we were to accept this argument, the foundation of the interlocutory order under appeal would disappear. Accordingly, the question of whether we should address the Commission’s attack on the underlying judicial review application is an important and potentially dispositive threshold issue. [9] In my view, we should address this issue. No one has been taken by surprise. The Commission’s factum on appeal, as Mr. Potter notes, has put the appropriateness of the underlying judicial review application “front and centre” before this Court. The substance of the Commission’s position was argued before Richard, J. and has been fully argued in the facta and oral submissions in this Court. The issue is potentially dispositive and, as shall discuss later, dealing with the appropriateness of the underlying judicial review application avoids the court having to do either preliminary assessment of Mr. Potter’s substantive complaints or the balancing of the interests of disclosure and confidentiality which it is ill-equipped to carry out at this preliminary stage. B. Is the Judicial Review Application Ill-founded or Premature? [10] The Commission submits that: (a) certiorari is not available to review an investigation; and (b) the court should allow the Commission to address the matters raised in the judicial review application. [11] should first set out some of the background. The Commission issued an investigation order (which has been amended on couple of occasions) for the investigation of “the affairs of Knowledge House Inc, reporting issuer, and any company or business owned, controlled or operated, in law or in fact, by Knowledge House Inc.”: see s. 27 of the Securities Act, R.S.N.S. 1989, c. 418. Mr. Potter indicates that he is President, CEO and Chair of the Board of Knowledge House. [12] Mr. Potter sought judicial review and requested orders quashing, staying and prohibiting the Commission from pursuing the investigation. In brief, he claimed that large number of emails, including many in his own email box, had been wrongfully obtained from the server or servers of Knowledge House Inc. by counsel for National Bank Financial, Messrs. Parish and Awad. Some of these emails, Mr. Potter said, are subject to his solicitor-client privilege. Mr. Parish supplied the emails to the Commission and, Mr. Potter claimed, the Commission in turn supplied file of information to the RCMP. Mr. Potter alleged that the Commission acted improperly in taking possession of this material without warrant, in using it in the course of its investigation and in forwarding information to the RCMP. As noted, Mr. Potter also issued notice of examination to one of the investigators, Mr. Peacock. [13] With that brief background, return to the two issues: whether certiorari is available to challenge an investigation and whether Mr. Potter’s application for certiorari is premature. 1. Availability of Certiorari: [14] The Commission’s first submission is that certiorari is simply not available to review investigations. do not accept this broad proposition. Long gone are the days when the availability of certiorari turned on the classification of the administrative process as adjudicative (or judicial) rather than investigative. As Donald J.M. Brown and The Honourable John M. Evans say in Judicial Review of Administrative Action in Canada, looseleaf, (Toronto: Canvasback Publishing, updated to January 2005) at para. 1:2231: “... certiorari ... will lie to review the conduct of an investigation ... on the ground that even if not legally binding, the investigation has exceeded the terms of the statutory mandate or that the procedure followed is in breach of the duty of procedural fairness.” [15] conclude that the underlying judicial review application should not at this stage be dismissed or stayed on the basis that certiorari is never available to attack an investigation by an administrative agency. 2. Prematurity: [16] If certiorari is potentially available, we are left with the court’s exercise of discretion as to whether to intervene in the investigation. Generally speaking, courts exercise that discretion with great caution and restraint while the administrative process is ongoing. This restraint is based on the concern that intervention may result in multiplication of proceedings with the attendant costs and delay and in the failure to accord appropriate deference to the administrative decision-maker: see, e.g., Brown and Evans, para. 3:4100; Psychologist “Y” v. Nova Scotia Board of Examiners in Psychology (2005), 2005 NSCA 116 (CanLII), 236 N.S.R. (2d) 273; N.S.J. No. 350 (Q.L.)(C.A.) at paras. 22-25. Of course, the rights of the challenger are critical part of the analysis and so the courts also consider whether there are other effective means of redress within the administrative scheme. [17] Taking all of these considerations into account, conclude that this is clearly case in which Mr. Potter’s complaints about the investigation should go in the first instance to the Commission. will briefly summarize my reasons. (a) The return and the examination of Mr. Peacock: [18] It is critical to keep the questions about the scope of the return and the examination of the investigator at the forefront of the analysis which follows. Before turning to my reasons for thinking that this matter should be addressed by the Commission, will set out the nature of the problems facing the court in relation to the scope of the return and whether the investigator should be discovered at this preliminary stage. [19] Rule 56.08 sets out the template for the return on certiorari application. However, the law recognizes that one size of return does not fit all judicial review cases. tribunal’s return must reflect and, to the appropriate extent, be responsive to the grounds of review asserted. In Waverley (Village Commissioners) v. Kerr et al. (1994), 1994 CanLII 4136 (NS CA), 129 N.S.R. (2d) 298; N.S.J. No. 84 (Q.L.)(C.A.) Freeman, J.A., writing for the Court, wisely pointed out that the contents of the return as specified in Rule 56.08 can apply only by analogy when, as here, discretionary matters are under review. As he put it, ... the circumstances must govern.”: at para. 50. As for discovery in the context of judicial review, the general rule is that it will not lightly be permitted: see Waverley, supra at para. 30. [20] In many respects, the issue about the scope of the return and the availability of discovery raise the same fundamental issue in case like this one. That issue is how to balance two competing requirements: the applicant’s need to know and the investigators need to keep secret. On the one hand, the applicant for judicial review needs, and ought to have access to, the relevant information for the purposes of review. Mr. Potter needs to know what the investigators did in order to mount his challenge. On the other hand, administrative actors should not have to reveal information which they are permitted (or required) to keep confidential simply because someone challenges their actions. The investigative process could break down if full access to its fruits were available simply by filing judicial review application. [21] These two requirements are in acute tension in this case. Mr. Potter alleges serious impropriety on the part of the investigators and, to prove it, requires access to information about their actions. He says that the investigators required, but did not have, warrant issued by judge under s. 27(5) of the Act to obtain his email records. He also claims that, as some of the emails are subject to solicitor and client privilege, the investigators ought to have invoked the process under s. 29F(3) of the Act to have judge determine the issues of solicitor and client privilege in relation to those materials. In addition, Mr. Potter claims that the investigators used privileged material for the purposes of their investigation and may have handed it over to the RCMP, thereby tainting the process. [22] As serious as these allegations are, however, one must also consider the importance of confidentiality in the investigative process. Granting routine access to the fruits of an investigation to anyone who has filed certiorari application could put the whole system of securities regulation at risk: the ability to investigate in private would, for practical purposes, no longer exist. [23] In general, the record and any permitted discovery should reflect and be responsive to the matter under challenge. But there also must be reason why particular information is required: IMS Health Canada Ltd. v. Information and Privacy Commissioner, [2005] A.J. No. 1293 (Q.L.)(C.A.) at para. 34. bare allegation in judicial review proceeding will not necessarily open the doors to material that the tribunal or agency has right to keep confidential. For example, in IMS, the court said that the principle of deliberative secrecy of tribunals may only be overcome if the applicant for judicial review demonstrates valid reason that the intrusion is necessary: at para. 46. My purpose in mentioning this is not to enter debate about the precise limits of tribunal deliberative secrecy. The point is simply to explain why, in case like this one, the contents of the return or the availability of discovery cannot meaningfully be assessed without some threshold examination of the merits of the judicial review application. [24] In addition, a balancing of interests is required. The investigative process lies at the heart of the regulatory system established by the Act. The balance between confidentiality and disclosure within that process is one that is critical to the effective discharge of the Commission’s mandate. While investigators must not, of course, be allowed to run roughshod over people’s rights, they must be allowed to exercise their broad powers in the public interest. [25] To sum up, in order to determine the proper scope of the return or whether discovery should be available, the court must do two things: it must make some preliminary assessment of the merits of the judicial review application and then balance the competing interests. Absent some such assessment and balancing, the Court would simply be ordering confidential material to be turned over to Mr. Potter in order to support challenge of unknown merit and with virtually unknown impact on the investigative process. [26] While the court would have to engage in some form of preliminary assessment of the merits and perform some preliminary balancing of the interests of disclosure and confidentiality, it would at this preliminary stage be severely handicapped in carrying them out. The court would not have the documentation or full argument on the merits or full grasp of the context in order to appreciate the nature and scope of the investigation. It would, therefore, have to arrive at its determinations without having an in-depth knowledge of the legal or factual issues or the impact of disclosure on the investigative process. (b) Discretion: [27] As noted earlier, courts exercise considerable restraint when asked to intervene in an ongoing administrative process. That restraint is based on number of interrelated concerns: creating multiplicity of proceedings with the attendant addition of expense and delay, failing to accord appropriate deference to the administrative decision-maker and permitting the challenger to short-circuit the administrative process. Of course, the latter concern presupposes that there are effective means of redress available to the challenger in the administrative process. In my view, each of these factors strongly favours requiring Mr. Potter to take his complaints to the Commission in the first instance and not to the courts by way of certiorari application. (i) Effective administrative redress: [28] The Commission submits, and accept, that it has the statutory authority and the means to address Mr. Potter’s complaints about the conduct of the investigators. [29] Mr. Potter is certainly person “directly affected” by the Commission’s investigation orders and, in particular, by the way the investigation authorized by those orders has been conducted. He, therefore, has the right to apply to the Commission under s. of the Act and to ask the Commission to invoke its broad, discretionary powers under s. 6(2). The Commission also has broad powers to “... make an order on such terms and conditions as may be imposed revoking or varying any decisions made under [the] Act ...”: s. 151. This section appears to give the Commission broad powers to regulate the ways in which its investigation orders are being carried out. The Securities Commission General Rules of Practice and Procedure (1996), made under s. 150 of the Act contemplate the Commission originating proceedings of its own motion (s. 2.3) or on the application of private party (s. 2.5). Investigators are obliged to provide “full and complete report of investigation” to the Commission (s. 27(15)) and the Commission has statutory discretion to permit disclosure of “any information or evidence obtained ...”: s. 29A. [30] In short, the Commission appears to have the power and the tools to address Mr. Potter’s complaints. [31] Mr. Potter says that, under the Act, his complaints would inevitably be resolved in court, not before the Commission and that his immediate recourse to the courts is therefore appropriate. [32] He submits first, that the investigators were obliged by s. 27(5) of the Act to apply to court for warrant before obtaining the material which they obtained from Mr. Parish. While would not want, at this point, to finally resolve that issue, Mr. Potter’s position does not seem to me to be so clearly right that the Commission should not have the opportunity to rule on this point before pre-emptive judicial review application. [33] Mr. Potter says, secondly, that the issues of solicitor and client privilege would inevitably be addressed in court under s. 29F(3). Without expressing final view on the matter, the present case does not at first blush appear to be one that falls within s. 29F(2) and s. 29F(3) does not appear on its face to provide the only mechanism to resolve issues of solicitor-client privilege. do not understand Nova Scotia Securities Commission v. W. (1996), 152 N.S.R. (2d) 1; N.S.J. No. 232 (Q.L.) (S.C.) to have decided otherwise. [34] note, as is well known, that there is extensive litigation already before the Supreme Court of Nova Scotia addressing the issue of privilege in relation to this material. It would seem regrettable to have parallel proceedings dealing with that issue. [35] Moreover, there are many administrative and practical issues to be addressed even before the privilege issue is finally resolved. These include how the investigation should respond to the risk that privileged materials have been obtained, how the allegedly privileged material should be dealt with in the interim and what disclosure should be made to Mr. Potter at this stage. These are matters which it seems to me the Commission could properly address now even without final resolution of the privilege claims. (ii) Multiplying and fragmenting proceedings: [36] Pre-emptive strikes in court against ongoing administrative proceedings should not be encouraged: see, for example, David J. Mullan, Administrative Law, 3rd ed., (Thomson Canada Ltd., 1996) at para. 539. Where, as here, there is comprehensive statutory scheme and specialized, expert tribunal, the tribunal generally should be permitted to address issues before the courts intervene. This consideration supports permitting the Commission to address the issues raised by Mr. Potter in his judicial review application. [37] As we shall see, the Commission would be entitled to some judicial deference in relation to critical aspects of the issues Mr. Potter raises. This strengthens the arguments in favour of allowing the Commission to address them first. Judicial intervention at this stage would effectively prevent any deference being accorded to the Commission on these issues for the simple reason that the court cannot defer to decision that has not been made. [38] Under s. 29A of the Act, much of what Mr. Potter seeks to have included in the record or to obtain by way of discovery is to be kept confidential unless the Commission grants permission for its release. The decision to release the information or not requires balancing of the competing interests in light of the overall statutory scheme and of the specific circumstances of the case. The Commission is in the best position and has the statutory discretion to perform that balancing. Its decisions in this area are entitled to judicial deference. [39] It is well-settled that securities commissions are entitled to measure of judicial deference as they carry out their statutory duties in the public interest. They have the central and pre-eminent role in the field of securities regulation in the public interest and the courts have stressed the nature and importance of this role over and over again: see, e.g., Pezim v. British Columbia (Superintendent of Brokers), 1994 CanLII 103 (SCC), [1994] S.C.R. 557 at 589, 593 and 595; British Columbia Securities Commission v. Branch, 1995 CanLII 142 (SCC), [1995] S.C.R. at para. 34. [40] The issues raised by Mr. Potter require three types of decisions: an interpretation of the statutory powers of investigators under s. 27 of the Act, determination of the extent of disclosure that should be made and determination of the mechanisms that should be put in place to address both the substance and the practical implications of his claim of solicitor and client privilege. While the substance of the privilege issue is pure question of general law, the other issues involve the proper interpretation of the Act and the exercise of discretion. [41] On these issues, the Commission is generally entitled to deference on appeal or judicial review. This is the case in relation to the interpretation of its statutory mandate, in relation to the exercise of its statutory discretionary powers, as well as in relation to the exercise of its powers to disclose investigative material: see Deloitte Touche LLP v. Ontario Securities Commission, 2002 CanLII 44980 (ON CA), [2002] O.J. No. 2350 (Q.L.)(C.A.), aff’d 2003 SCC 61 (CanLII), [2003] S.C.R. 713; Pezim, supra, Committee for Equal Treatment of Asbestos Minority Shareholders v. Ontario (Securities Commission), 2001 SCC 37 (CanLII), [2001] S.C.R. 132; Cartaway Resources Corp. (Re), 2004 SCC 26 (CanLII), [2004] S.C.R. 672; Nova Scotia (Securities Commission) v. Schriver, 2006 N.S.J. No. (Q.L.)(C.A.). [42] At the heart of this point is s. 29A of the Securities Act, which requires that investigative material be kept confidential unless the Commission otherwise orders. Section 29A of the Act provides: 29A No person or company, without the consent of the Commission, shall disclose, except to that person's counsel, any information or evidence obtained or the name of any witness examined or sought to be examined pursuant to Section 27 or Section 29. 1990, c. 15, s. 30. [43] The Commission makes two arguments based on s. 29A. The first is that it prevents the court from ordering disclosure of investigative material and the second is that the section evidences legislative intention that the Commission and not the court should decide issues of disclosure in the first instance. While do not accept the Commission’s first argument, agree with the second. [44] do not agree that s. 29A prevents the court from ordering disclosure of the material in proper case. We are told that there is no case law in Nova Scotia interpreting this provision. However, counsel has drawn our attention to the jurisprudence in Ontario and British Columbia in relation to similarly worded provisions: Deloitte Touche LLP v. Ontario (Securities Commission), [2005] O.J. No. 1510 (Q.L.)(Ont. Sup. Ct. J.); Deloitte Touche LLP v. Ontario (Securities Commission), 2002 CanLII 44980 (ON CA), [2002] O.J. No. 2350 (Q.L.)(C.A.), aff’d 2003 SCC 61 (CanLII), [2003] S.C.R. 713; Smolensky v. British Columbia (Securities Commission) (2004), 2004 BCCA 81 (CanLII), 236 D.L.R. (4th) 262 (C.A.); B.C.J. No. 298 (Q.L.), leave to appeal dismissed [2004] S.C.C.A. No. 274. These cases, however, deal with the disclosure obligation of the Commission to persons affected by Notice of Hearing. While they are helpful in considering the scheme of the confidentiality and disclosure obligations of the Commission in general, they do not address the authority of the court to order production. [45] The question of whether the court may order production is one of statutory interpretation. The applicable principle of statutory interpretation is that any limitation on the authority of superior court to order production must be clearly expressed in the statute: Glover v. Glover et al. (No. 1) (1980), 1980 CanLII 63 (ON CA), 113 D.L.R. (3d) 161 (Ont. C.A.), aff’d 1981 CanLII 64 (SCC), [1981] S.C.R. 561; R. v. Snider, 1954 CanLII 40 (SCC), [1954] S.C.R. 479; Cook v. Ip (1986), 1985 CanLII 163 (ON CA), 52 O.R. (2d) 289 (C.A.). As Cory, J.A. (as he then was) put it in the latter case at p. 293: “There is an inherent jurisdiction in the court to ensure that all relevant documents are before it. ... On the other hand, it is quite clear that the Legislature may by statute prohibit [potential witnesses] from giving testimony [or an agency from] producing its records at trial... If the Legislature is to achieve that result, it must specify the restriction in clear and unambiguous terms.” (Emphasis added) [46] In my view, s. 29A does not clearly take away the power of the superior courts to order production of relevant evidence. The section is directed to person or company, not to court. There is no reference to legal process and nothing which expressly or by necessary implication detracts from the court’s power to compel evidence. The language of s. 29A is markedly different from that of provisions which have been held to take away the courts’ power to order production. For example, the provisions considered in Glover expressly prohibited persons from giving evidence or producing records in legal proceedings. In Swinimer v. Canada (Minister of National Defence) (2005), 2005 NSSC 55 (CanLII), 231 N.S.R. (2d) 129 (S.C.), the statute under consideration provided that the investigators were not compellable witnesses: see para. 24. No comparable language is present in s. 29A. In short, there is no express language and no clear legislative intention in s. 29A to take away the inherent authority of superior court to compel documents and testimony. [47] That is not the end of the matter, however. Simply because the courts have the power to require production, it does not follow that they should use that power in the first instance without providing the Commission with an opportunity to carry out its statutory mandate. In my view, deference is due to the Commission in the sense that it ought to have the first opportunity in this case to address the scope of disclosure to Mr. Potter. agree with the Commission that s. 29A, read in the context of the legislative scheme, reflects an important aspect of the Commission’s responsibility to balance the interests of fair investigation and effective regulation in the public interest. [48] The Commission, subject to appeal or judicial review, has the lead responsibility to strike and maintain the required balance with respect to disclosure of investigative material: see, e.g., Deloitte Touche, LLP v. Ontario (Securities Commission), supra [S.C.R] at paras. 21 29. As the Court said in Smolensky, supra, testimony and other information obtained under compulsion in securities investigations engage privacy interests and the ability to keep such information confidential will likely enhance the effectiveness of the investigation. However, the Court also noted that there are corresponding claims of procedural fairness tending to require disclosure which must be balanced on case by case basis in light of the Commission’s public interest mandate. [49] Not only is the balancing of confidentiality and disclosure in the investigative context central to the Commission’s statutory mandate, the Commission is better placed than the courts to perform that balancing, particularly at this preliminary stage. Unlike the courts, the Commission’s balancing may be performed in light of the actual information in issue and detailed grasp of the investigation and the underlying policy issues in relation to securities regulation. (iv) Conclusion: [50] For all of these reasons, requiring Mr. Potter to go to the Commission in the first instance rather than to court by way of judicial review is the preferable course of action. It has the potential to provide Mr. Potter with effective redress for his complaint, respects the role and expertise of the Commission, is potentially less intrusive into the investigative process, relieves the court of the responsibility of making an initial and somewhat speculative assessment of the merits of his allegations and reduces the risk that confidential information will be released for no good reason. IV. DISPOSITION: [51] I would accordingly grant leave, allow the appeal and order that: 1. The order of Richard, J. be set aside except for para. 2(a) on page 4 thereof with the result that the material given to Mr. Potter pursuant to that part of the order shall remain in his possession and the material filed by the Commission in the Supreme Court shall remain sealed and in the custody of the Court; 2. The judicial review application filed by Mr. Potter by Originating Notice (Application Inter Partes) dated March 29, 2004, and the amended Originating Notice (Application Inter Partes) dated July 4, 2005, be stayed until further order of the Supreme Court; 3. The notice of examination for discovery of R. Scott Peacock dated August 29, 2005, be struck out, the Commission’s application to strike out the affidavit of Dan Potter sworn March 29, 2004, and to strike out the July 4, 2005, amendments to the Originating Notice (Application Inter Parties) be dismissed, all without prejudice to the Notice of Examination being re-issued and the Commission’s application to strike it out as well as its applications in relation to the March 29, 2004 affidavit and the July 5, 2005 Originating Notice being renewed in the event that the stay of the judicial review application is lifted. 4. The material filed by the Commission pursuant to para. of Richard, J.’s order will be returned to it to be dealt with by the Commission according to law. [52] The purpose of the stay of the judicial review application is to provide Mr. Potter an opportunity to raise the matters on which it is based with the Commission and for the Commission to address them. The stay may be lifted by a judge of the Supreme Court on application with notice. specifically note that there has been no determination on the merits of any of the allegations made by Mr. Potter in his judicial review application. [53] should also say, respectfully, that the Commission appears from the material before us to have been slow to recognize the seriousness of the implications of the allegations made by Mr. Potter in relation to the investigation. say this without in any way pre-judging the ultimate merits of those allegations. It has been obvious for many months that there are serious claims of solicitor-client privilege in relation to material in the Commission’s hands and yet, so far as we can tell, it has done virtually nothing to come to grips with the implications of those claims for the investigation it has authorized. The Commission has also had the benefit for many months of Scanlan, J.’s decision in National Bank Financial Ltd. v. Potter (2005), 2005 NSSC 113 (CanLII), 233 N.S.R. (2d) 123; N.S.J. No. 186 (Q.L.)(S.C.) which held that the onus is not on the party claiming privilege to take steps to have the privilege issue determined: see para. 62. The judge also set out some very clear statements of what he understood to be the ethical obligations of lawyers who come into the possession of material for which privilege is claimed: see paras. 62 -63. It cannot have been lost on the Commission, which we are advised had counsel on watching brief throughout the proceedings before Scanlan, J., that these statements have serious implications for some or all of its investigators. The Commission, through counsel, claims to have the authority and the tools to address these issues. This decision gives it the opportunity to put those submissions into action. [54] In short, while prefer to extend considerable judicial deference to the Commission in the discharge of its regulatory responsibilities in the public interest, that deference is neither absolute nor open-ended. It is, in my view, essential that the Commission take serious and immediate steps to come to grips with the obvious issues which have arisen in the course of the investigation which it has ordered. [55] The fresh evidence application is dismissed and would make no order as to costs. Cromwell, J.A. Concurred in: Bateman, J.A. Saunders, J.A.

The president of a company against whom the Securities Commission had ordered an investigation applied to the court for certiorari to quash the investigation. He alleged that the investigators had improperly obtained and used the contents of his email, some of which were subject to solicitor and client privilege. In the context of the certiorari application, the company president successfully argued that the Commission's return should contain the fruits of the investigation so far and that he should be entitled to examine one of the investigators for discovery. The Commission appealed, arguing that the underlying judicial review application was improper and premature and thus, the procedural orders should not have been made. Appeal allowed; the underlying judicial review application is stayed; the stay may be lifted by a judge of the Supreme Court on application with notice; the Order of the chambers judge on the procedural matters arising in that application is set aside. The underlying judicial review application was premature because the Commission should have had the opportunity to consider and address the company president's complaints. The decision as to whether or not to release the information sought required the balancing of competing interests in light of the overall statutory scheme and the specific circumstances of the case; the Commission was in the best position to conduct such an exercise.

c_2006nsca45.txt

J. NOVA SCOTIA COURT OF APPEAL Citation: Davis v. Hill, 2005 NSCA 104 Date: 20050630 Docket: CA 238220 Registry: Halifax Between: Gilbert Roland Hill v. Pamela Davis Respondent Judge(s): Roscoe, Bateman Cromwell, JJ.A. Appeal Heard: May 19, 2005, in Halifax, Nova Scotia Held: Appeal dismissed, with costs payable by Mr. Hill to Ms. Davis in the amount of $2,000.00 together with disbursements as taxed or agreed, as per reasons for judgment of Bateman, J.A.; Roscoe and Cromwell, JJ.A. concurring Counsel: Deborah E. Gillis, Q.C., for the Appellant Susanne M. Litke Sharon Avery, Student at Law, for the Respondent Reasons for judgment: [1] This is an appeal from an order made pursuant to the Maintenance and Custody Act, S.N.S. 1989, c. 160 as amended, requiring the appellant father, Gilbert Roland Hill to pay maintenance for his son James Anthony Davis. The respondent, Pamela Davis, is James’ mother. [2] Roland Hill and Pamela Davis, had brief relationship in 1981 when Ms. Davis was 16 years old. Their child, James Davis, was born on June 2nd, 1982. [3] Ms. Davis says she told Mr. Hill of James birth early on. Mr. Hill maintains he was unaware of Ms. Davis’ pregnancy until 1996, when Ms. Davis brought an application for child maintenance for James under the Family Maintenance Act (now the Maintenance and Custody Act). He was ordered to pay maintenance of $500 monthly, commencing June 5th, 1996. James had some contact with his father after that time but continued to reside with his mother. [4] In June 2000 James completed grade 12 at Millwood High School. In January 2001, after working in temporary positions for months, James re‑enrolled in Grade 12 in order to improve his marks for university entrance. [5] In early 2001 Mr. Hill filed an application to terminate the support for James. Mr. Hill either did not know or did not believe James had re-enrolled in school in January. On April 9, 2001, the parties appeared in court on Mr. Hill's application to terminate support. By that time, James was living with his father, having moved in with him on April 4. The support was therefore terminated by agreement, the consent order providing that James would be in his father’s custody, with reasonable access by his mother. [6] James abandoned his upgrading attempt and sought employment. He was abusing drugs and alcohol which behaviour was of concern to both parents. On June 2nd, 2001 James Davis turned 19 years old. He returned to live with his mother in late June when his father told him to move out. Tragically, on August 12, 2001, James sustained severe brain injury when, intoxicated, he fell from the 4th storey of parking garage onto the concrete floor below. He was admitted to hospital, where he stayed until October 9th, 2001. He was subsequently transferred to the Nova Scotia Rehabilitation Centre. Extensive rehabilitation was required for him to re‑learn to speak and walk. He has made great strides but has not and will not regain his pre-accident physical and intellectual capacity. [7] Following his discharge from the Nova Scotia Rehabilitation Centre in December 2001, James returned to live with his mother. She had taken leave from her job at the time of the accident. Upon discharge from the Centre he continued to suffer from his injuries, required close supervision and was unable to work or further his education. Ms. Davis remained off work. When her employment benefits ran out she applied for provincial income assistance. She was not able to return to work until March of 2002, and then only on part time basis. Since December 20, 2001, James had been in receipt of income assistance. [8] On December 18, 2001, Ms. Davis applied to vary the April, 2001 order to require that Mr. Hill pay maintenance for James. The application did not come before the court for hearing until November, 2003. [9] In September 2002, James enrolled in an educational program at the City Church Bible Institute (CCBI). During that academic year he attended classes on Wednesday evenings. He completed several courses with excellent grades. [10] In February 2003, on the recommendation of his rehabilitation physician, James began consultations with Brian Tapper, vocational counsellor. Mr. Tapper helped him develop an educational plan. From September 2003 to the time of the maintenance hearing in November, James attended the Flexible Education Learning Centre (FLEC) of the Halifax Regional School Board, to upgrade his high school marks. [11] At the time of the hearing, although he continued to suffer the effects of the brain injury, James was involved in regular exercise routine, was abstaining from alcohol and drugs and was highly motivated to pursue an education. It was James' hope to take paralegal course at the Nova Scotia Community College, commencing in September, 2004. Mr. Tapper thought that was an attainable goal, although James was yet to be admitted to the program. [12] The maintenance application was heard before Justice Tidman who delivered an oral decision at its conclusion. He directed that Mr. Hill pay child support in the amount required by the Child Maintenance Guidelines, O.I.C. 1998‑386 (August 5, 1998), N.S. Reg. 53/98 as amended. This consisted of basic support of $774 monthly together with proportionate share (80%) of extraordinary expenses and contingent lump sum as retroactive support. It is this order which is on appeal. [13] Mr. Hill frames the following grounds of appeal: 1. Did the Learned Trial Judge err in law and in fact in finding that James Davis was dependent child pursuant to s. of the Maintenance and Custody Act and in ordering maintenance payable for him by the Appellant? Did the Learned Trial Judge err in law in varying the Consent Order dated April 26, 2001, effective April 1, 2001, which ordered by consent that there was to be no child support maintenance payable for James Davis, which Order was not varied upon James Davis attaining the age of nineteen years or prior to August 12, 2001? 2. Did the Learned Trial Judge err in law and in fact in varying the Consent Order dated April 26, 2001 and in finding that James Davis, at the time of attaining the age of nineteen (June 2, 2001), had not withdrawn and was unable to withdraw from the charge of his parents because it was his intention at that time and continued to be his intention to further his education at post‑secondary institution? Did the Learned Trial Judge err in law and in fact in determining that James Davis was dependent child because it was his intention on attaining his nineteenth birthday to further his education at post‑secondary educational institution? 3. Did the Learned Trial Judge err in law in finding that James Davis was dependent child by virtue of his educational plans without evidence that the plans were concrete and without evidence that the proposed plans were likely to provide him with marketable skills or evidence that the suggested studies would realistically ready James Davis for gainful employment? 4. Did the Learned Trial Judge err in fact when he found that at the time of the trial, James Davis had made arrangements to take paralegal course at the Nova Scotia Community College? 5. Did the Learned Trial Judge err in law and not exercise his discretion judicially in ordering support payable pursuant to s.3(2)(a) of the Guidelines without having due or adequate regard to s.3(2)(b) and an inquiry into the condition, means and circumstances of James Davis and the parties, including regard to whether James Davis had any obligation to pursue an action against third parties for compensation. 6. Did the Learned Trial Judge err in law in failing to exercise his discretion to put conditions on support payable by the Appellant including termination date? [14] As will discuss below, the wording of certain of the grounds of appeal presume an interpretation of the Judge’s decision which is not supported on careful reading of the judgment. Standard of Review [15] As to the applicable standard of review, L'Heureux‑Dubé J. wrote for the Court in Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] S.C.R. 518, at 10 and 12: [Trial judges] must balance the objectives and factors set out in the Divorce Act or in provincial support statutes with an appreciation of the particular facts of the case. It is difficult but important determination, which is critical to the lives of the parties and to their children. Because of its fact‑based and discretionary nature, trial judges must be given considerable deference by appellate courts when such decisions are reviewed. There are strong reasons for the significant deference that must be given to trial judges in relation to support orders. This standard of appellate review recognizes that the discretion involved in making support order is best exercised by the judge who has heard the parties directly. It avoids giving parties an incentive to appeal judgments and incur added expenses in the hope that the appeal court will have different appreciation of the relevant factors and evidence. This approach promotes finality in family law litigation and recognizes the importance of the appreciation of the facts by the trial judge. Though an appeal court must intervene when there is material error, serious misapprehension of the evidence, or an error in law, it is not entitled to overturn support order simply because it would have made different decision or balanced the factors differently. (Emphasis added) [16] Section of the Maintenance and Custody Act, supra, provides: Upon application, court may make an order, including an interim order, requiring parent or guardian to pay maintenance for dependent child. 1997 (2nd Sess.), c. 3, s. 4. [17] “Dependent child” is defined in s. 2: (c) "dependent child" means child who is under the age of majority or, although over the age of majority, unable, by reason of illness, disability or other cause, to withdraw from the charge of the parents or provide himself with reasonable needs but does not include child twenty‑four years of age or older who is attending post‑secondary educational institution; (Emphasis added) [18] As the case was presented to Justice Tidman, the focus was James’ status immediately preceding the accident. It was Mr. Hill’s position that, at the time of the accident in August 2001, James having attained the age of majority and not continuing with his studies or having firm plans to do so, was no longer “dependent child” under the Act. Mr. Hill says he, therefore, did not have an ongoing obligation to provide support. [19] There was evidence about James’ plans for further education in the period after graduation from high school and before the accident. Upon graduation he made inquires about the requirements for entry into Saint Mary’s and Mount Saint Vincent Universities. He learned that he needed to better his marks for acceptance. That is why he returned to high school in January 2001. Although he abandoned that upgrading attempt in the months leading up to the accident, he had interviewed for and was accepted into an e‑commerce program at CompuCollege commencing in September 2001. During that time he was working at two part time jobs and saving little bit of money for his education as well as contributing to his mother’s household expenses. He had admittedly not committed to attend CompuCollege or any university, nor did he have the finances necessary to do so at that time. [20] Mr. Hill says the support order is premised on finding by the judge that prior to the accident James had clear intention to pursue particular course of post-secondary study and, therefore, remained dependent child. "Other cause" for the inability to withdraw from the charge of the parents, within the definition of “dependent child” (¶ 17 above) is commonly held to include reasonable period of post‑secondary education undertaken after the "child" turns 19 years old. [21] Mr. Hill’s submission in this regard is in error. The judge’s key finding, which is supported on the record, is that James was not intending to work permanently, but was taking hiatus before continuing his education. The judge said: The child may wish to work in order to save for the cost of post-secondary education and to have an educational break and decide on future course of training. In my opinion and in my view, this is exactly the situation with James. In this case, although James was working, am satisfied that it was not his intention to work permanently at those jobs. He was, in fact, living with his father at the time he made application to CompuCollege in September of 2001 in an e-commerce program. He had graduated from grade 12 in June of 2000. However, in order to qualify for university, James wished to upgrade his marks. On the basis of the outlined circumstances, I find that James, at the time he attained the age of 19 years, had not withdrawn and was unable to withdraw from the charge of his parents, since it was his intention at that time, and still is his intention, to further his education at a post-secondary educational institution. [22] Section 2(c) of the Act provides that child may remain dependent child even where over the age of majority, if “. unable, by reason of illness, disability or other cause, to withdraw from the charge of the parents or provide himself with reasonable needs .” The case law is replete with examples where children remain dependents for maintenance purposes, even though not actually attending an educational institution. The issue of how long child’s period of dependency continues is one of fact (Martell v. Height (1994), 1994 CanLII 4145 (NS CA), 130 N.S.R. (2d) 318 (C.A.) per Freeman, J.A. at 8.; MacLennan v. MacLennan (2003 NSCA (CanLII), [2003] N.S.J. No. 15 (N.S.C.A.) (Q.L.) per Cromwell, J.A. at 40). As such it is subject to high level of deference, requiring palpable and overriding error to justify appellate intervention. [23] It was Mr. Hill’s submission that at the time James moved back to live with his mother, because he was over 19 years of age and not engaged in any educational program, he was no longer “dependent child” under s. 2(c) of the Act and had forever lost that status. He says the fact that Ms. Davis did not immediately make an application for the resumption of the maintenance after James came to live with her again in June 2001 confirms that he was not dependent for whom maintenance is payable. The disablement caused by the injury, says Mr. Hill, cannot revive that status (citing Nowe v. Nowe, [1986] N.S.J. 78 (Q.L.)). [24] The evidence supports the judge’s finding that, at the time of the accident on August 12, 2001, James remained dependent child: He had graduated from school in June of 2000, but returned to upgrade his marks in January of 2001. Although James did not apply himself to that endeavour and quit the program in April 2001, the fact that he returned to school to improve his marks is confirmation that he intended to further his education; In the period immediately preceding the accident, James was working at two part time jobs and attempting to put some money aside for future schooling; James’ mother had very modest income and was not in position to assist him financially in furthering his studies. Mr. Hill was not supportive of James furthering his education and had made no offer of contribution. James needed to work if he planned to self-finance his education; James had made application and had been accepted into the CompuCollege program, although he had not clearly decided to attend and did not have the immediate finances to do so; The period of time between his reaching the age of majority and the accident was short one; It was James’ evidence that he intended to further his education. [25] The judge clearly understood James had not made firm plans on course of study but reasonably concluded that it was his intention to further his education. [26] The Act does not require that the dependent child who is over the age of majority be pursuing further education. It simply states that the dependency continues if the child is “unable, by reason of illness, disability or other cause, to withdraw from the charge of the parents or provide himself with reasonable needs.” I am not persuaded that the judge erred in concluding James had not withdrawn and was unable to withdraw from his parent’s charge at the time of the accident. [27] This is not to suggest that parent has an indefinite responsibility to support child who is capable of becoming independent. parent does, however, have an obligation to assist child through reasonable transition period (Gamache v. Gamache 1999 ABQB 313 (CanLII), [1999] A.J. No. 474 (Q.B.) (Q.L.) per Trussler, J. at and 9). [28] Although the focus of Mr. Hill’s opposition to the maintenance application was James’ pre-accident status, he questioned, as well, the viability of James’ plan to pursue paralegal training at the Nova Scotia Community College. It was Mr. Hill’s position that James’ plan was unrealistic in light of his limitations arising from the brain injury. According to the evidence, although James did suffer lasting effects from the injury, he had performed extremely well in his recent upgrading courses and was said by his doctor and vocational counsellor to be highly motivated to succeed. If admitted to the paralegal program he would need some accommodation from the Community College most likely an extension of the time within which he would need to complete the program. [29] It was Mr. Hill’s submission that James should abandon his educational plans and immediately find minimum wage employment. There was no evidence, however, that he was equipped for any employment. He had lasting balance problems, could not undertake work in which he would risk re-injury, was prone to distraction and tended to be impulsive. Even if he were fit to work, he would need highly structured work environment and substantial accommodation from any employer willing to provide job, even at minimum wage. [30] There was no serious suggestion from Mr. Hill that James, at the time of the hearing, was able to provide for himself or remove himself from parental charge. Accordingly, Mr. Hill’s attack on James’ plan for further education was not relevant to the question before the judge which was James’ pre-accident status. would find the judge did not err in concluding James was not independent at the time of the accident. As James had not ceased to be dependent child prior to the accident, unlike the situation in Nowe v. Nowe, supra, there was no issue here about regaining the dependent status. [31] In the alternative, Mr. Hill says the judge erred in ordering support in the Guideline amount. The onus of establishing the Guideline amount is inappropriate rests with the party seeking different order (MacLennan v. MacLennan, supra, 8). [32] Quantum of support is governed by the Child Maintenance Guidelines made under s. 55 of the Maintenance and Custody Act, supra. The Guidelines provide: 3(2) Unless otherwise provided under these Guidelines, where child to whom child maintenance order relates is the age of majority or over, the amount of the child maintenance order is (a) the amount determined by applying these Guidelines as if the child were under the age of majority; or (b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each parent to contribute to the maintenance of the child. [33] Mr. Hill says James’ income should have been taken into account so as to reduce the support payable. James’ only source of income was Provincial Income Assistance in the monthly amount of $667. Section 30 of the Act prohibits consideration of that income when fixing child support: 30 An order may be made under this Act whether or not the single woman, spouse or common‑law partner, dependent child or dependent parent is receiving aid from any government or from any city, town or municipality or from any public, local or private body, organization or institution, or is being cared for in any sanatorium, hospital, home or other charitable or public institution and such aid shall not be considered in making the order. R.S., c. 160, s. 30; revision corrected 1999; 2000, c. 29, s. 8. [34] Mr. Hill further says the judge should have time-limited the payment of support tying it to specific time within which James should complete his education. I have concluded the order for support was not premised on James’ continuing dependency as a result of his pursuit of post-secondary studies. James’ future ability to “withdraw from parental charge” is unknown. It is not an appropriate case for a time-limited order. [35] In summary, I am not persuaded there was any evidentiary basis upon which the judge could conclude that the Guideline amount was “inappropriate” and therefore depart from it. He did not err. DISPOSITION [36] I would dismiss the appeal with costs payable by Mr. Hill to Ms. Davis in the amount of $2,000.00 together with disbursements as taxed or agreed. Bateman, J.A. Concurred in: Roscoe, J.A. Cromwell, J.A.

The son of unmarried parents, who had graduated from high school, was working part-time, living with his mother and had not made a final decision on a further course of study sustained a serious brain injury just a few months after his 19th birthday. He required extensive rehabilitation and would not regain his pre-accident physical and intellectual capacity. The mother successfully applied for a reinstatement of child support which had been discontinued by consent, pre-accident, when the son was residing with the father. The son, now 23 years old, was upgrading his high school marks at the time of the hearing and hoped to be admitted to a community college program. The father appealed. Appeal dismissed; the judge's decision to award support was not premised upon a finding that, pre-accident, the son had made a clear decision to pursue a further course of study but on the fact that the son intended to pursue his education and had not withdrawn from parental charge at the time of the accident. There was no evidence to support the allegation that the usual Guideline amount was 'inappropriate' in this case; the Act prohibited the consideration of public income assistance when fixing child support; given the uncertainty about the son's future, this was not an appropriate case for a time-limited order.

d_2005nsca104.txt

J. 2003 SKQB 519 F.L.D. A.D. 2003 No. 366 J.C. R. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF REGINA BETWEEN: DAVID MICHAEL STOPANSKI and LUCINDA PERRA RESPONDENT W. Timothy Stodalka for the petitioner No one appeared for Ms. Perra nor did she appear JUDGMENT SANDOMIRSKY J. December 5, 2003 [1] Mr. Stopanski has and continues to be represented by capable legal counsel. Ms. Perra has chosen not to seek legal counsel and advice, despite being urged to do so. [2] The Court has been presented with a form of judgment bearing the consents of Mr. Stopanski and Ms. Perra. At first blush, one might assume the Court should grant the parties the relief they appear to jointly be seeking. However, the terms of the proposed judgment are, in the opinion of the Court, unconscionable. There has not been equality in the bargaining positions of the petitioner and respondent. Ms. Perra did not attend before the Court nor did she file any material on her own behalf from which might gauge the level of her knowledge of the law and the rights that she has thereunder. Second, the terms of the proposed consent judgment are clearly improvident. Ms. Perra seems content to receive assets, mainly in the value of her car, which represents her receiving about 13% of the net value of the family property estate, leaving the remaining 87% of the net value of the said property to be Mr. Stopanski’s share. Ms. Perra is prepared to forfeit her right to spousal support though she earns only $15,000.00 year while Mr. Stopanski earns $48,000.00 year. The proposed form of judgment confirms joint custody of the two children, who are ages 18 and 16, and that these children shall have their primary residence with Mr. Stopanski. Given the advanced ages of these children the proposed judgment seeks to have the parents respect the children’s wishes as to their choice of residence and the time that they might wish to spend with each parent. The proposed judgment also provides Ms. Perra is not obliged to pay child support in the foregoing circumstances. [3] By law, only the 15 year old qualifies as child within the meaning of The Family Maintenance Act, 1997, S.S. 1997, c. F-6.2. Based upon the Federal Child Support Guidelines (SOR/97-175, as am.) (the “Guidelines”), Ms. Perra’s obligation to provide support for this child would calculate to be $88.00 per month. The child will be 18 years old in approximately 18 months time which means, that potentially, the economic value of releasing Ms. Perra from her obligation to pay child support may amount to less than $1,600.00 in all. [4] In my opinion, no reasonable person would conclude that the proposed judgment was anything but unconscionable and would speculate that at some point in the future, Ms. Perra will come to realize how patently unfair the proposed judgment was to her. [5] The parties do not need Court order nor judgment to attain their apparent goals. It is certainly open to them to proceed with this arrangement without the formality of judgment or contract. Another option is to reduce their understanding to writing, even if there is no lawyer prepared to sign certificate of independent advice for obvious reasons. However, today the parties have come to the Court requesting the proposed form of consent judgment. It is here that the Court must take its stance. [6] When, upon the evidence filed, the terms of a consent judgment appear to be patently unfair or unconscionable to one of the parties, it is my opinion that the Court must refuse the application. The Court must not been seen to legitimatize, condone, acquiesce nor approve of an unconscionable bargain. [7] Ms. Perra would clearly benefit from legal advice and guidance, but no one can force her to seek such help or assistance. Counsel for the petitioner tried as best he could to urge upon Ms. Perra her right and need for such guidance and he cannot be faulted. [8] The application is dismissed. In the circumstances, no costs are awarded.

The Court was presented with a consent judgment. The respondent was unrepresented. The Court found the terms of the consent judgment were so unfair as to be unconscionable. HELD: The Court refused to issue the order on the grounds that the Court must not be seen as legitimatizing, condoning, acquiescing or approving of an unconscionable bargain.

c_2003skqb519.txt

nan F.L.D. A.D. 1997 No. 489 J.C.S. IN THE QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SASKATOON BETWEEN: PATSY MAY HARRIS and WILLIAM HARVEY HARRIS RESPONDENT Mr. D. Z. Braun for the petitioner Mr. M. R. Vanstone for the respondent JUDGMENT WRIGHT J. May 19, 1998 The Issue [1] Did the parties cohabit for more than 90 days andthereby vitiate their agreement to live separate and apart? The Facts [2] The parties signed a contract described as aseparation agreement dated September 6, 1996. The agreement provided, among other things, that the parties would live separately and that neither would claim spousal support from [3] The following clause appears in the agreement: 11. NINETY-DAY TRIAL COHABITATION If at any future time, the Husband and the Wife, with their mutual consent, cohabit as Husband and Wife for period or periods totaling not more than 90 days with reconciliation as the primary purpose of the cohabitation, the provisions contained in this Agreement will not be affected, except as provided in this clause. If the Husband and the Wife with their mutual consent cohabit as Husband and Wife for period or periods totaling more than 90 days, with reconciliation as the primary purpose of the cohabitation, the provisions contained in this Agreement will become void, except that nothing in this Paragraph will affect or invalidate any payment, conveyance, or act made or done pursuant to the provisions of this [4] For the purposes of the trial, counsel proceeded on the basis that this instrument was separation agreement. express no opinion as to the nature of the agreement in light of the narrow issue presented to me for determination. The Evidence [5] Each of the parties testified, and they were the only persons called at the trial of the issue of cohabitation. There was no serious argument that they cohabited in 1997. The only issue was for how long. The petitioner swore that the parties cohabited for ten days in May 1997, and from June 28, 1997 until September 30, 1997. The respondent disputed that evidence and insisted that the period of cohabitation extended from June 30, 1997 until September 18. If the petitioner's account is accepted, the cohabitation would have extended for period of at least 95 days. [6] It is not necessary for me to review the evidence in this matter. In the final analysis, it comes to question of credibility. have no hesitation in accepting Mrs. Harris's account of what transpired. She struck me as an intelligent, articulate andforthright person, and more particularly as anindividual whose life has been largely controlled byher former spouse and by the events that occurredduring his search for new positions in the healthcare administration field. [7] I found the respondent evasive, argumentative andultimately untruthful in his answers to a number ofquestions. In particular, the following:(1) The circumstances surrounding thesigning of the so-called separationagreement and the reason he gave forit;(2) The untrue statements he set out inhis divorce petition in Ontario as toresidency, statements that he sworeas true in his subsequent applicationfor divorce judgment;(3) His action in applying for a defaultjudgment in the divorce proceedingswhen he knew the petitioner hadserved his solicitor with her Answer. [8] The parties clearly intended to re-establish their life together as husband and wife in the fullest sense. The respondent emphasized number of times that his desire was to see the family fully restored and together and that the employment he obtained at Melville, Saskatchewan finally permitted the family to be together in this province. It is clear also from the answers given by both parties that when they did reunite, their objective was to be fully reconciled and to re-establish their lives together in the fullest possible context. The fact that the reconciliation was short lived, regrettably, does not change that result. [9] Their cohabitation began on June 27, 1997 with their reunion in Wynyard, Saskatchewan and continued until September 30, 1997 when the respondent terminated the reconciliation. [10] The September 6, 1996 agreement was thereforerendered, in its words, "void". [11] was disposed to grant costs to the petitioner in this matter in light of the course the evidence took and the outcome, but concluded it would be more appropriate that the costs be dealt with by the trial judge in due course, mindful of the outcome of this particular proceeding.

In issue was whether the parties cohabited for more than 90 days and thereby vitiate their 1996 separation agreement to live separate and apart. The Agreement provided that neither would claim spousal support.HELD: 1)Credibility was determinative. The wife was articulate, intelligent and forthright while the husband was found to be evasive, argumentative and untruthful in answering a number of questions including the circumstances surrounding the signing of the agreement, the untrue statements he set out in his divorce petition in Ontario regarding his residency and in applying for default judgment when he knew the petitioner had served an Answer. 2)The agreement was rendered 'void' by the fact the parties cohabited for more than 90 days. 3)Costs were left to the trial judge.

e_1998canlii13571.txt

nan Note: This decision has been appealed. INFORMATION 43261743 DATE: 1999 IN THE PROVINCIAL COURT FOR SASKATCHEWAN SASKATOON, SASKATCHEWAN BETWEEN: HER MAJESTY THE QUEEN and THOMAS ALEXANDER SPARK M. J. Matchett For the Crown R. J. Smith For the Accused JUDGMENT RENDERED ON July 27, 2000 S.P. WHELAN, PCJ CHARGES [1] Thomas Alexander Spark is charged with 3 counts in relation to one incident occurring March 20, 1999 at Saskatoon, Saskatchewan: impaired driving contrary to sections 255(1) and 253(a), over .08 contrary to sections 253(b) and 255(1) and driving while disqualified contrary so section 259(4), all of the Criminal Code of Canada. 1. Has the Crown proven beyond reasonable doubt the identity of the operator of the vehicle? 2. Has the Crown proven beyond reasonable doubt the time of the accident, entitling reliance upon the presumption provided for in section 258.(1)(c)? 3. If the answer to b. is no, has the Crown proven beyond reasonable doubt the charge of impaired driving? 4. Has there been breach of fundamental justice by virtue of the discussion of the police witnesses with civilian witnesses during the trial? [2] The answers to the issues posed: Yes. The Crown has met the necessary burden of proof with respect to the issue of identity. No. The Crown has not proven the time of the accident and may not rely on the Certificate of Analyses. Yes. The Crown has proven beyond a reasonable doubt that the Accused’s driving was impaired by alcohol having regard to the test in R. v. Stellato. No. There has not been a breach of fundamental justice. In any event stay is not an appropriate remedy. [3] The Accused is acquitted of count in the Information. find him guilty and conviction will be entered for counts and 3; driving while impaired and driving while disqualified. [4] This incident involves motor vehicle collision. The Accused’s vehicle, ton truck, rear ended 1995 red Pontiac Sunfire while it was stopped at red light at the controlled intersection where College Drive intersects Circle Drive in Saskatoon, Saskatchewan. The Sunfire was badly damaged and the driver was injured, requiring transport to the hospital by ambulance. She sustained pretty serious injury to her back and since January has been dividing her days between rehabilitation and work. [5] The Sunfire was south bound on Circle Dr., as was the Accused’ vehicle. The posted driving speed was 80 km/hr. There were lanes on Circle Drive on the north side of the intersection: two left hand turning lanes, two straight through lanes and one right turning lane. It was controlled intersection. Advance yellow warning lights indicated to the Sunfire’s driver that she would have to stop at the intersection and she slowed as she approached it. She came to stop in the lane closest to the left turning lane. There was no vehicle stopped in front of the Sunfire. The driver of the Sunfire said that as the light was still red she turned her attention to her radio, adjusting the dial. She saw taxi cab approach on her right, heading west toward the University and saw it slow down for left turn south on Circle. She saw the cab come to stop as its light turned from yellow to red. She looked in her rear view mirror and saw head lights coming very quickly directly behind her and then her vehicle was hit. In the time that she saw the head lights she had taken her foot off the clutch and put her gear shift in neutral. She had not yet put her foot on the gas and had not caused her vehicle to move forward before she was struck. [6] She estimated the time of the accident at around 1:30 a.m. She had just dropped off friend on Turtle Crescent at about 1:15 or 1:20 a.m. [7] She recalled looking out her driver’s window and seeing truck drive past her. She saw the driver look out at her through his passenger window and then pull away moving south bound on Circle Dr. At this point she would not have been able to identify the driver. She was only able to say that he had dark hair and wore dark jacket. The face was blurry. She saw only one occupant in the truck. [8] She then saw the cab driver pull forward and saw the truck stop at the far southeast side of the intersection. She was able to describe the truck as; not new, boxier, looking like ton. The cab driver came over. She asked him to call 911 and then her parents. [9] Next she says she saw the driver of the truck run from the driver’s side of the truck toward her. She thought by his running which was not in straight line, that he must be drunk. The cab driver said something to him and then the truck driver came in her direction. He approached her and asked if she was OK and why she didn’t start to move. She recalls telling him that the light was red. He said something to the effect that she shouldn’t worry, that it probably wouldn’t be her fault. During the conversation she smelled lot of “booze” and noted that the speech was slightly slurred. She specifically recalled that it was the truck driver who smelled of booze and who’s speech was slurred. She identified the Defendant as the driver of the truck. [10] She also recalled there being another man, named Rick. She was uncomfortable with his being so close and she told him to move away from her vehicle. While both men were there the man named Rick told the truck driver to stay away from her. She recalled that while the conversation was very brief, perhaps 15 seconds, her contact with the truck driver was for to minutes. [11] She estimated that it took about 45 minutes at most after the accident for the police to arrive but that it could have been 15 minutes. During the wait she recalls seeing the Accused waiting in the vicinity of her car but she lost sight of him pretty quickly after their conversation concluded. She estimated that she saw the Accused for up to minutes in total and during some of this time he was within or feet of her. [12] cab driver witnessed the accident while stopped at the intersection of College and Circle. As he approached eastbound on Circle his light turned yellow and he slowed. He observed that the Sunfire was stopped at red light facing south on College. As his light turned red he observed the Defendant’s vehicle collide with the Sunfire from behind. The Sunfire was pushed with the impact into the westbound lane in the intersection. [13] The cab driver described the Defendant’s vehicle as one ton flat deck truck. After the collision the truck went left around the Sunfire across the intersection to the farthest southeast corner of the intersection where it stopped. Before it stopped however the cab driver was apprehensive that the Defendant would not remain at the scene so he drove his cab toward the truck so as to block any escape. He called his dispatch and asked for an ambulance and police, saying that it was serious accident. He said he called the dispatch before leaving his cab and attending at the Sunfire. [14] The cab driver was estimated that the accident occurred between 1:30 and 2:30 a.m. Officer Bain said that at the scene the cab driver told him that it occurred between 1:40 and 1:50 a.m. The latter estimate is incorrect. [15] As the Defendant’s vehicle drove past the cab, he saw one person in the cab of the truck, the driver. At that time he was not able to make out the face. He saw the Defendant walk from the truck to the Sunfire. While he didn’t see him get out of the truck within one to five minutes after the accident he saw the Defendant about 15 feet from the truck and saw no one else around. [16] The cab driver observed later that the Defendant was unable to stand without leaning on vehicles. He was close as three feet from the Defendant at one point. He noted that the Defendant’s eyes looked like they were “rolling in oil” and he concluded that he was not sober due to either drugs or alcohol. He pointed the Defendent out to one of the officers at the scene, indicating that he was the driver of the truck. [17] Officer Pollmann received advice about the accident from dispatch advising that it was called into dispatch between 1:35 and 1:40 a.m. He said that he was not advised that someone was injured and so the call was not treated as high priority. He was unable to say when he received the dispatch but estimated that it was about hour from the time they received the call until they arrived at the scene. He explained that there can be delay between receipt of the call by dispatch and relaying it to the officers on patrol. They arrived at the scene at 2:12 a.m. [18] He described the Defendant’s vehicle as 1974 ford pick up with machinery on the back. He said that the Sunfire had extensive damage. While the Defendant was pointed out to him on arrival, he didn’t speak to him for some time. The first priority for he and his partner was to see to the driver of the Sunfire and clear the accident scene. The Defendant was asked to take seat in the police vehicle and was first spoken to shortly before 3:00 a.m. As he spoke to the Defendant Officer Pollmann noted what would describe as confusion. The Defendant repeatedly asked about his truck despite the fact that he had the card for the tow truck driver in his hand. The Officer said that the conversation just didn’t sink in with the Defendant. He detected smell of alcohol coming from his breath. He noted that his speech was slurred and that he had blood shot eyes. He formed the opinion that he was impaired by alcohol such that he should not be driving. [19] The Defendant produced an Alberta driver’s licence and as he was Saskatchewan resident the Officer determined from CPIC check that he was prohibited from driving in Saskatchewan. [20] The demand for breath sample was made at 2:48 and at 2:50 he was read his rights and the police warning. He said he understood. He asked for and spoke with lawyer before giving samples at the police station. [21] Officer Pollman was cross examined about his discussion with the two civilian witnesses on the break before he testified. He knew that he was not to discuss the evidence with the witnesses during the trial. He and Officer Bain had been sitting outside the courtroom, awaiting their turn to testify. His attention was drawn to the inside of the courtroom when he heard the raised voice of the cab driver and he looked in the window at the back of the courtroom briefly. During the break he and Officer Bain gathered with the two civilian witnesses and another outside the court house where some of them had cigarette. Officer Pollmann asked the cab driver why he became upset during his testimony. He was told that it was when he was questioned about the width of the boulevard in the intersection. Officer Pollmann said the conversation was not specific about distances and that it lasted less than minute and ending when Defence Counsel, who came upon the conversation outside the building, confronted them about discussing the evidence. [22] Officer Bain testified that they received the dispatch at about 2:05 a.m. The cab driver pointed out the Defendant as the driver of the truck. He said that the cab driver estimated that time of the accident to be 1:45 to 1:50 a.m. He passed on this and other information from the cab driver to his partner, Officer Pollmann. He did not deal directly with the Defendant but observed that he was unsteady on his feet. He saw him leaning on fender of vehicle and noted an apparent smell of alcohol on his person when he was in the police vehicle. Tthe Defendant’s speech was slurred. He concluded that the Defendant was drunk. He observed about 50 to 60 feet of skid marks leading up to the collision area at the rear of the Sunfire. [23] Officer Bain said that he didn’t hear any of the testimony from outside the court room. He asked the driver of the Sunfire about her general well being as result of the accident but he didn’t ask about her testimony. He described the discussion that took place on the break. He asked the cab driver why he got so excited on the stand and was told him it was about questions in relation to the width of the boulevard. He didn’t understand the comment so he asked another question for clarification. At that point Defence Counsel interrupted the conversation. Office Pollmann expressed regret for his conduct, describing it as huge blunder. He said he forgot his position. [24] The Defendant testified. He said that he wasn’t driving that night. He had made arrangements for guy, named Rick, to drive his truck home that night. When Rick didn’t show he went for beer. This was around 6:30 p.m. He stayed at the bar drinking until around 1:00 a.m., he said, when man he’d never met before offered to drive him home in return for getting ride over to the east side of the city. He said that at the bar he drank no more than or beer. He said that he was sleeping at the time of the accident and woke just as it occurred. He went on to explain that after the vehicle was stopped he sent this man over to gas station to call for help. He then stayed at the scene. He never heard from or saw this man again. He had been unable to locate either Rick or this man to testify at trial. [25] Some preliminary remarks may be made regarding my general assessment of the evidence. In assessing the evidence of the Crown witnesses found some inconsistencies that were insignificant or explainable. For instance there was uncertainty about the location of the Sunfire in relation to the two straight through lanes. This was not material fact. have been able to sort through any inconsistencies to find reliable and credible testimony that accept beyond reasonable doubt. In this process have reminded myself of the Supreme Court of Canada decision of R. v. W.( D.) 1991 CanLII 93 (SCC), [1991] S.C.R. 742 and the test for reliability and credibility in relation to the burden of proof. [26] found the evidence of the driver of the Sunfire to be most reliable. She was careful with her statements and there was the kind of detail in her testimony that gave it credibility. While she was likely in shock immediately after the accident, have taken this into account and have found her testimony to be reliable. [27] There is further inconsistency between the testimony of the cab driver and the driver of the Sunfire, but it is explainable and does not affect the reliability of either insofar as the material findings of fact. The driver of the Sunfire recalled conversation with man named Rick, and the Defendant. The cab driver is adamant that no one spoke to her while he was there however he did leave her once, possibly twice, first when he may have left her to initially call in the accident and later when he testified to returning to his cab to ask about the delay in the arrival of the police and ambulance. The cab driver said that he only left the driver of the Sunfire once, while she recollects that he left twice to make these calls to his dispatch. The cab driver said that he called in the accident as he was backing his car up to block the possible escape of the Defendant’s vehicle. find that it was during this time that the conversations she described took place. In any even, find that the cab driver called in the accident within minutes. We have no knowledge however of how soon the cab company dispatch called the police dispatch. [28] The cab driver failed to understand the difference, until it was pointed out to him, between actually observing something and assuming something. This was evident in his testimony about the lights at the intersection. Having said that found his testimony to be credible and in important respects reliable. He also had difficulty with describing the width of an intersection. He is however an experienced driver and this did not detract from my overall acceptance of his testimony concerning more material facts. Where there are inconsistencies or differences between the testimony of the driver of the Sunfire and the cab driver, accept the testimony of the driver of the Sunfire. [29] Where there are inconsistencies between the Crown and the Defence witnesses, I accept the evidence of the Crown witnesses over that of the Defendant. found the Defendant’s testimony to be fabricated and unreliable. This was most apparent to me because of his insistence that there were was another person in the cab of his truck who he says was driving. The evidence of the driver of the Sunfire and the cab driver refutes this totally. Apart from that found his testimony that he would allow stranger to drive his vehicle and then fall asleep enroute to his destination to be very questionable. It is even more questionable that he would then give the person responsible for the accident an opportunity to flee by sending him some five blocks away to call for help. [30] The discussion between the two testifying police officers and the driver of the Sunfire and the cab driver did not affect my findings. The conversation was apparently about why the cab driver got excited on the stand and the question he was being asked at the time. It was about the width of the boulevard and intersection. This may’ve relevant to finding that the Defendant was considering fleeing the intersection. am unable to say that there is sufficient evidence on this point to reach any conclusion. While the cab driver thought he was trying to flee, find no evidence to support this. a. Has the Crown proven beyond reasonable doubt the identity of the operator of the vehicle? [31] accept the evidence of the two Crown civilian witnesses that the Defendant was the driver. They stated and accept there was only one person in the cab of the truck. reject the evidence of the Defendant when he says that there were two and that someone else was driving. The driver of the Sunfire says that she saw the Defendant get out of the truck and come over to her vehicle. The cab driver says he saw the Defendant come from within 15 feet of the truck when there was no one else around. The Defendant has testified that he was the owner of the truck and an occupant of the truck at the time of the accident. I find beyond a reasonable doubt that the Crown has proven that the Defendant was the operator of the vehicle when the collision occurred and at all material times. [32] In light of this, the Crown having filed a Certificate of Disqualification or Prohibition, I find the Defendant guilty of count 3 in the Information. b. Has the Crown proven beyond reasonable doubt the time of the accident, entitling reliance upon the presumption provided for in section 258.(1)(c)? [33] Section 258(1)(c)of the Criminal Code states in part: 158.(1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or in any proceedings under subsection 255(2) or (3), nan (c) where samples of the breath of the accused have been taken pursuant to demand made under subsection 254(3), if (ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken, nan evidence of the results of the analyses so made is, in the absence of evidence to the contrary, proof that the concentration of alcohol in the blood of the accused at the time when the offence was alleged to have been committed was, where the results of the analyses are the same, the concentration determined by the analyses and, where the results of the analyses are different, the lowest of the concentrations determined by the analyses; [34] The driver of the Sunfire estimated the time of the accident to be 1:30 a.m. She said that she dropped friend off, between 1:15 and 1:20 a.m. She then drove from Turtle Crescent to Warman to Circle Drive to reach the intersection of College Drive where the collision occurred. She was not asked how she arrived at her estimate of the friend’s drop off. She was not asked how long it took to drive from Turtle Crescent to College. She also said that it was between 30 and 45 minutes, with maximum of 45 minutes from the time of the collision until the time the police arrived. The police officers indicate arrival at 2:12 a.m. There was no evidence as to how she arrived at the estimate of 45 minutes. [35] In order for the Crown to rely on the presumption in s. 258.(1)(c) the accident must have occurred no earlier than 1:19 a.m. as the first sample was taken at 3:18 a.m. If the driver of the Sunfire was wrong in her estimate by only 12 minutes the Crown would be out of time. There is uncertainty concerning the precise time of the accident. The police were operating under very tight time lines in order to meet the requirements permitting reliance on the presumption. There has been no expert testimony which would provide evidence in relation to the Certificate of Analyses and the reading at the time of the accident. [36] As I am unable to conclude beyond a reasonable doubt that the first sample was obtained within two hours of the accident, I find the Defendant not guilty of count 2 in the Information. 3. If the answer to b. is no, has the Crown proven beyond reasonable doubt the charge of impaired driving? [37] The leading decision is R. v. Stellato 1993 CanLII 3375 (ON CA), 78 C.C.C. (3d) 380 (Ont. C.A.), affirmed by the Supreme Court of Canada, 1994 CanLII 94 (SCC), 90 C.C.C. (3d) 160. At page 384 Labrosse J. of the Ontario Court of Appeal stated: “In all criminal cases the trial judge must be satisfied as to the accused’s guilt beyond reasonable doubt before conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused’s ability to operate motor vehicle was impaired by alcohol or drug. If the evidence of impairment is so frail as to leave the trial judge with reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.” [38] The Defendant displayed signs of impairment which were observed by number of persons. To enumerate: he was unsteady on his feet and leaned on vehicle to support himself, he had alcohol on his breath, he didn’t follow conversation or make sense in his comments, calling for repetition, he slurred his speech and his eyes were blood shot. In addition his driving showed poor judgment. He apparently failed to heed yellow warning light which preceded the controlled intersection. He collided with vehicle that had been stopped at red light and failed to apply the brakes until it was too late to avoid collision. He caused substantial damage to the stopped vehicle which is some indication of the delay or slowness in his decision before appreciating the need to brake to avoid collision. The skid marks before the collision were about 50 to 60 feet long. [39] I find, having considered the test in R. v. Stellato, supra, that I have no doubt whatsoever that the Defendant’s ability to operate a motor vehicle was impaired by alcohol. Accordingly, find the Defendant guilty of count in the Information. 4. Has there been breach of fundamental justice by virtue of the discussion of the police witnesses with civilian witnesses during the trial? [40] At the outset of the trial, the Defence was asked if it had any applications to make. The Crown indicated that all witnesses had been excluded from the courtroom. No application to exclude witnesses was made and no such order was given. [41] In R. v. Leitner 1998 CanLII 13871 (SK QB), [1998] S.J. No. 735 (Q.B.), Justice Dawson sat on an appeal from decision in which mistrial and an order for new trial was granted. Crown witness violated an exclusion order, returning to the courtroom following his testimony on voir dire and before his recall to give the balance of his evidence at the trial. The real issue on the appeal was whether there should be new trial, the Court, found that there is no appeal from the decision to grant mistrial in these circumstances. The Defence argued that new trial would amount to an abuse of process. [42] Justice Dawson relied upon, as do I, the Supreme Court of Canada decision of Dobberthien v. The Queen (1974), 1974 CanLII 184 (SCC), 18 C.C.C. (2d) 449 as authority for the principle that when witness remains in the court room after an exclusion order and then testifies, the trial judge may consider this in deciding the weight to be given to the evidence of that witness. This principle is equally applicable to the case at hand where witnesses who had yet to testify discussed the evidence with other witnesses after their testimony. [43] am disappointed that the Officers acted as they did, but am also satisfied that there was no bad purpose and that the officers simply let their curiosity get the better of them; as one Officer stated, he “forgot his position”. [44] Defence Counsel has argued that the behaviour of the Officers is so reprehensible that it must be denounced regardless of the effect on the testimony at trial. In short he has argued that there is an appearance of unfairness about the trial process that should compel me to enter a stay of proceedings. I do not agree. I’m of the view that there must be a manifest unfairness in the trial process as a result of the impugned behavior in order for me to find that there has been a breach of fundamental justice. In these circumstances, the impugned conduct affects only the weight to be given to the evidence of the Officers. The conversation complained of was not material to the outcome of the trial or the charges before me. found no bad intent on the part of the officers nor did find tailoring of the evidence as consequence of the discussion. [45] Had found that there was breach of fundamental justice would nonetheless have found that stay was not appropriate. After Defence Counsel came upon this conversation, it was reported to the Court and the trial was adjourned to permit full disclosure of the impugned conversation and an opportunity for Counsel to prepare in light of the development. The Officers had not testified and they were vigorously and effectively cross examined by Defence Counsel on the adjourned date. stay is to be entered in the clearest of cases and when no other remedy will do. I am able to assess the weight to be given to the Officers evidence notwithstanding the conduct complained of. The right of the Defendant to a fair trial has not been prejudiced by the introduction of this evidence in these circumstances. [46] The Charter Application for a stay of proceedings alleging a breach of fundamental justice is denied. [47] For these reasons, have made the findings and reached the conclusions as hereinbefore stated under the heading, OUTCOME. Dated at Saskatoon, Saskatchewan, this 27th day of July 2000. S. P. Whelan

Accused charged with impaired driving, being over.08 and driving while disqualified. The charges arose out of an incident where he rear-ended car stopped in front of him at red light. The accident victim estimated the time of the accident to be around 1:30 a.m. After the accident, the victim, witnesses and attending police officers noticed that the accused displayed signs of intoxication. The police arrived at the scene at 2:12 a.m. The accused was seated in the police car and was first spoken to shortly before 3:00 a.m. The officer determined through CPIC that the accused was prohibited from driving in Saskatchewan. The demand for breath sample was made at 2:48 a.m. At 2:50 a.m. he was given his rights and he spoke to lawyer prior to providing sample. HELD: The evidence of the crown witnesses was accepted over that of the defendant. The Court found beyond a reasonable doubt that the defendant was the operator of the vehicle when the collision occurred and therefore the accused was found guilty of driving while disqualified. The crown was not able to prove beyond a reasonable doubt the time of the accident and, therefore, is not entitled to rely upon the presumption provided in s.258(1) of the Code. The Court was not able to conclude that the first sample was taken within 2 hours of the incident. On the charge of impaired driving, the Court had no doubt that the accused's ability to operate a motor vehicle was impaired by alcohol. The Court also held that there was no breach of fundamental justice by virtue of the discussion of the police witnesses with the civilian witnesses during the trial. When witness remains in the courtroom after an exclusion order and then testifies, the trial judge may consider this in deciding the weight to be given to the evidence of that witness. This principle is equally applicable to the case at hand where witnesses who had yet to testify discussed the evidence with other witnesses after their testimony. The Court rejected the defence argument that there was an appearance of unfairness about the trial process that requires that a stay of proceedings to be entered. The Court held that there must be manifest unfairness in the trial process as a result of the impugned behaviour in order to find a breach of fundamental justice. Here the impugned conduct only affects the weight to be given to the evidence of the police officers. The conversation complained of took place outside of the courtroom at trial and was not material to the outcome of the trial or the charges. There was no tailoring of the evidence as consequence of the discussion. Even if the Court had found breach of fundamental justice, stay would not be appropriate. After the conversation was discovered, it was reported to the Court and the trial was adjourned to permit full disclosure of the impugned conversation and to give counsel an opportunity to prepare in light of the development. stay is to be entered only in the clearest of cases. Here the right of the defendant to a fair trial has not been prejudiced by the introduction of evidence as the Court was able to assess the weight to be given to the officers' evidence. The Charter application for a stay of proceedings alleging a breach of fundamental justice is denied.

e_2000canlii19619.txt

Dated: 19971119 Docket: 2853 THE COURT OF APPEAL FOR SASKATCHEWAN Coram: Vancise, Lane Jackson JJ.A. KELVINGTON SUPER SWINE INC. APPELLANT (Respondent) and KIMBERLY IRVING, SANDRA LYNN LOWNDES, SUSAN LOWNDES, GERALDINE PERRON, IVAN LINDGREN, MARLENE LINDGREN, LLOYD STROME, KAREN STROME, NEIL IRVING, LESLIE MITTON, BRIAN LUND, DIANNE LUND, TERRY HORAN, JERRY HORAN, RODGER DOYLE, MARILYN DOYLE, EVANGELENE LECHMAN, ARNIE LUND, EVELYN LUND, PAUL BRASSARD, DANIEL McNAMEE, PETER PATRICK, YVONNE PATRICK, LEITHE PERRON, CAROLE LOWNDES, IVAN GODHE, PATRICIA GODHE, MARION FLETCHER, LEO KURTENBACH, HELEN KURTENBACH, CYRIL HALE, LOUISE HALE, COLLEEN BOND, MARGUERITE SLOAN, ORLYNN LOWNDES and FREDERICK LOWNDES RESPONDENTS (Applicants) and YELLOW QUILL FIRST NATION INTERVENOR (Intervenor) and ERIC UPSHALL, MINISTER OF AGRICULTURE AND FOOD FOR THE PROVINCE OF SASKATCHEWAN, LORNE SCOTT, MINISTER OF ENVIRONMENT AND RESOURCE MANAGEMENT FOR THE PROVINCE OF SASKATCHEWAN NON-PARTY (Respondent) COUNSEL: Mr. R.H. McKercher, Q.C Mr. Shaunt Parthev for the appellant Mr. R.H. Goodman Mr. D.J. Smith for the respondents Mr. W.J. Wardell, Q.C. Ms. D.L. Driedger for the intervenor, Yellow Quill Mr. A.J. Beke, Q.C. Mr. J.L. Nugent for the intervenor, H.L. Pork Producers Ltd. Mr. B.J. Hornsberger, Q.C. (watching brief) for the Minister of Agriculture and the Minister of Environment DISPOSITION: On Appeal From: Q.B 1753/97, J.C. of Saskatoon Appeal Heard: 19 November 1997 Appeal Allowed: 19 November 1997 (orally) Written Reasons: 09 December 1997 Reasons By: The Honourable Mr. Justice Vancise In Concurrence: The Honourable Mr. Justice Lane The Honourable Madam Justice Jackson VANCISE J.A. (orally) Introduction [1] Kimberly Irving, among others, (the respondents) applied to the Court of Queen’s Bench by notice of motion for a declaration that the intensive livestock operation being constructed by Kelvington Super Swine Inc. (KSS) at Kelvington is a development pursuant to s. 2(d) of The Environmental Assessment Act. [1] The respondents also requested an order for mandamus compelling KSS to conduct an environmental assessment of the development as required by s. 9 of The Environmental Assessment Act. Yellow Quill First Nation (Yellow Quill) applied for intervenor status in support of the position of the respondents. [2] On the return date of the notice of motion KSS raised the following preliminary issues: (1) whether Yellow Quill should be granted intervenor status; (2) whether the affidavits filed on behalf of the respondents complied with Rule 319 of the Rules of Court; and, (3) whether the respondents and Yellow Quill had standing to privately enforce public right. [3] On October 7, 1997 when the motion was argued, the chambers judge, without giving reasons, granted Yellow Quill intervenor status and standing and ruled the affidavit evidence was admissible. He also found, without giving reasons, that the project being constructed by KSS was a “development” as defined in The Environmental Assessment Act. The application for mandamus was adjourned sine die. [4] This matter was heard by way of an expedited appeal because of the urgency of resolving whether the appellant was required to conduct an environmental impact assessment having particular regard for the length of the construction season and financial commitments made by the appellants as well as the necessity to establish the applicability of statutory requirements to similar projects. We were able to identify two fundamental issues, the decision of which permitted us to determine the rights of the parties to this appeal and to render an oral judgment. Notice of Appeal [5] KSS appeals the decision of the chambers judge on essentially the following grounds: 1. The chambers judge erred in law by admitting affidavit material filed by the respondents on an application for final order by reason that the matters deposed to by the respondents are based primarily on information and belief and contravene Rule 319 of the Court of Queen’s Bench Rules and further that the matters deposed to are based on conjecture, speculation and hearsay with no basis in fact; 2. The chambers judge erred in law in granting Yellow Quill standing for the private enforcement of public right; and, 3. The chambers judge erred in finding that the KSS project was development as defined in s. 2(d) of The Environmental Assessment Act. [6] An examination of the factums filed on behalf of the appellant KSS, the respondents and the intervenor reveals no disagreement on the essential underlying facts. KSS is an incorporated community group made up of farmers in the Kelvington area who propose to build two intensive hog operations adjacent to one another four miles south of Kelvington. The facilities will be located on two quarter sections of land, specifically the SE¼ 13-36-12 W2nd (the Clark property) and NW ¼18-36-11 W2nd (the NBC Resources property). The project consists of two feeder barns (also known as finishing barns) and is the third site of project known as Big Sky No. 2, farrow to hog finishing operation to be managed by Big Sky Pork. All the details of the hog operation are not important for the purposes of this application. It is sufficient for our purposes to note that the respondents depose that the intensive hog operation will contain 8,000 hogs in each barn at any one time, and that the operation will turn over hogs three times year (a total of approximately 56,000 hogs) and will produce up to 14.7 million gallons of liquid manure per year. The liquid manure will be stored in manure lagoons which contain pits dug into the ground, earthen dikes and liner consisting of remoulded and compacted glacial till. The liquid manure will be used for fertilizer on lands in the immediate vicinity of the project. The respondents depose they are concerned about potential changes to the environment likely to be brought on by this intensive hog operation and in particular they point to the potential danger to the ground water, including streams which feed ultimately into Nut Lake, some 12 miles from the site. [7] On March 17, 1997 KSS applied to the Department of Agriculture for approvals to operate an intensive hog operation on the Clark and NBC properties pursuant to the provisions of The Agricultural Operations Act[2] and its Regulations.[3] That application had been preceded by nearly two years of preparation, including extensive studies of the running water aquifers and local geology, during which time KSS consulted with the Department of Agriculture and other interested departments of government as well as with some of the respondents. On July 14, 1997, KSS received approval from the Minister of Agriculture of its waste management and waste storage plan for an intensive livestock operation. Those approvals contain number of restrictions to ensure the environment is protected. [8] Notwithstanding the studies undertaken prior to receiving those approvals, the respondents contend KSS should be required to conduct an environmental assessment of the project pursuant to the provisions of s. of The Environmental Assessment Act because the project or operation is “development” under the Act. Preliminary Matters [9] On the return date of the appeal HL Pork Producers Ltd. filed notice of motion requesting it be granted intervenor status because of its involvement in similar projects in the province. It cites as one of the reasons for requesting intervenor status, the uncertainty surrounding whether or not it is necessary for an environmental impact assessment to be conducted as well as obtaining permits from the Department of Agriculture and Food for projects of this kind. That application was deferred to permit the Court to deal with the substance of the matters raised by the parties already before the Court. [10] In our opinion there are two fundamental issues on this appeal: 1. the admissibility of the affidavits filed by the respondents having regard to the requirements of both Rule 319 and whether or not the material filed was hearsay; and, 2. whether the project proposed by KSS is development as defined in s. 2(d) of The Environmental Assessment Act. [11] It may or may not be necessary to deal with the issues of status and whether the respondents and Yellow Quill have the right to privately enforce public right depending upon the outcome of the decision on those two issues. [12] The appellant contends the remedy sought by the respondents, whether for the private law remedy of declaration or the public law remedy of mandamus finally disposes of the rights of the parties, and is therefore final order. No one seriously questioned that submission. The application was for final order and Rule 319 of the Queen’s Bench Rules is, therefore, engaged. That rule states: *319. Affidavits shall be confined to such facts as the witness is able of his own knowledge to prove, except on interlocutory motions, on which statements as to his belief, with the grounds thereof, may under special circumstances be admitted. The costs of every affidavit which shall unnecessarily set forth matters of hearsay or argumentative matter, or copies of or extracts from documents, shall be paid by the party filing the same; and where affidavits upon information and belief are filed which do not adequately disclose the grounds of such information and belief the court may direct that the costs of such affidavits shall be borne by the solicitor filing the same. The appellant contends the rule is quite clear in limiting affidavit evidence to such “facts, as the witness is able of his own knowledge to prove”. Affidavits which contain hearsay are in breach of the Rule and those portions may not be considered. In support of that contention the appellant cites and relies on: Kennibar Resources Ltd. v. Saskatchewan (Minister of Energy and Mines) et al.,[4] Petrich v. Petrich,[5] and Mitchell v. Intercontinental Packers Ltd. et al.[6] It is clear from an examination of the affidavits filed on behalf of the respondents that the overwhelming majority of the facts deposed to in those affidavits are based on information and belief or unsubstantiated, speculative, conjectural and irrelevant material. Given our decision in this matter on the substantive issue it is not necessary for us to consider these affidavits in their entirety and to rule on the admissibility of the evidence contained therein. Even if we permit the use of the affidavits, taken at their highest probative value they do not prove on the requisite standard of proof that the KSS project is development. [13] Given our decision on the first issue, the principal issue before us is whether the project proposed by KSS is development as defined within s. 2(d) of The Environmental Assessment Act. Development is defined term under that Act. It is defined as follows: (d) “development” means any project, operation or activity or any alteration or expansion of any project, operation or activity which is likely to: (I) have an affect on any unique, rare or endangered feature of the environment; (ii) substantially utilize any provincial resource and in so doing pre‑empt the use, or potential use, of that resource for any other purpose; (iii) cause the emission of any pollutants or create by‑products, residual or waste products which require handling and disposal in manner that is not regulated by any other Act or regulation; (iv) cause widespread public concern because of potential environmental changes; (v) involve new technology that is concerned with resource utilization and that may induce significant environmental change; or (vi) have significant impact on the environment or necessitate further development which is likely to have significant impact on the environment. [14] When one examines the affidavit evidence and in particular the evidence filed with the Minister of Agriculture under The Agricultural Operations Act as well as the material filed with Saskatchewan Environment and Resource Management, the statutory requirements necessary to constitute this project development have not been satisfied. It is noteworthy that the Department of Agriculture and Saskatchewan Environment and Resource Management were both of the opinion the KSS project was not a development as defined in s. 2(d) by reason that it did not come within any of the criteria listed in s. 2(d) of the Act. The Environmental Assessment Branch of the Department of the Environment examined each of the criteria set forth in s. 2(d) and was satisfied that the project was not a development. The opinion of the Environmental Assessment Branch was made after it had conducted review of the environmental concerns specific to the project and matters which are valid public concerns about potential livestock operation projects. In the opinion of the Environmental Assessment Branch no significant impacts on the environment will occur or if they do, mitigation measures will be implemented to reduce or eliminate the potential for significant environmental impacts. [15] An examination of the material filed indicates that the criteria for the project to be development have not been met. An examination of each of the criteria set forth in s. 2(d) which we set out in full indicates: i) Have an effect on any unique, rare or endangered feature of the environment. There is no evidence of any unique, rare or endangered feature of the environment which may be affected by the project. ii) Substantially utilize any provincial resource and in so doing preempt the use, or potential use, of that resource for any other purpose. There is evidence that the proposal will require the use of large quantity of water on an ongoing basis, but Sask. Water has expressed no concern with respect to the water usage and therefore one can conclude that no preempted use of this or other provincial resources was indicated. iii) Cause the emission of any pollutants or create by-products, residual or waste products which require handling and disposal in manner that is not regulated by any other Act or regulation. Liquid manure is possible pollutant from this project. The storage and use of liquid manure as fertilizer is regulated by The Agricultural Operations Act which is administered by the Department of Agriculture. That department examined the project and gave its approval. It is unlikely, therefore, that there will be unregulated material being emitted from the site. iv) Cause widespread public concern because of potential environmental changes. There was an indication of public concern related in part at least to the potential effects on the environment of the proposal. great deal of information is contained in the affidavits and the supporting material concerning the number of public meetings which were held and the number of petitions which were circulated and signed by people in the area of the project. It is fair to conclude that while there has been some public concern expressed about the possible environmental effect of these proposals in the Kelvington area by some groups, that concern is not wide-spread. From the material we examined it is doubtful the number of people expressing concern may not even represent majority of the residents in the area of the project. While there is local interest in the proposal and local concern about possible environmental effects, those concerns are not wide-spread. v) Involve new technology that is concerned with resource utilization and that may induce significant environmental change. There was no evidence that the technology in the proposed project involved resource utilization. The technology proposed is not new and appears reliable. Several similar operations have been in place for many years. vi) Have significant impact on the environment or necessitate further development which is likely to have significant impact on the environment. The proposed activity falls under existing regulations and controls and no secondary developments are required. [16] Therefore, in our opinion, this proposal is not a development as defined in s. 2(d) of The Environmental Assessment Act. The decision of the chambers judge that the project of KSS is development is therefore set aside. [17] In view of our finding that the proposal of KSS is not development as defined in s. 2(d) of The Environmental Assessment Act it is not necessary for us to consider whether Yellow Quill or the respondents have standing to privately enforce public right. We note in passing that the concerns expressed by Yellow Quill on this appeal, both in writing and in oral argument, were concerned more with the approval procedure required under the Agricultural Operations Act rather than whether or not the project was development under the Environmental Assessment Act. It was not necessary for us to make any finding in connection with those matters. Clearly if project is development there is requirement for wider public consultation. [18] In light of the decision on this appeal, the following matters are not in issue: (1) whether the respondents should have applied by way of judicial review in the nature of certiorari to set aside the order of the Minister of Agriculture as opposed to applying for declaration that the project was development under The Environmental Assessment Act; (2) the relationship between The Environmental Assessment and The Agricultural Operations Act; and, (3) whether proponent of an intensive livestock operation can be required to make an application under The Agricultural Operations Act and also be required to carry out an environmental impact assessment under s.9 of The Environmental Assessment Act. [19] In view of our findings it is not necessary to consider the application of HL Pork Producers Ltd. requesting intervenor status. [20] KSS did not seek costs. [21] The appeal is granted, the order of the Court of Queen’s Bench set aside without costs. DATED at the City of Regina, in the Province of Saskatchewan, this 9th day of DECEMBER, A.D. 1997. VANCISE J.A. LANE J.A. JACKSON J.A. [1]S.S. 1979-80, c.E-10.1. [2]S.S. 1995, c.A-12.1. [3]R.S.S. c.A-12.1, Reg. 1, Sask. Gaz. 1996, 385, as amended by Sask. Reg. 34/97. [4](1990), 1990 CanLII 7448 (SK QB), 88 Sask. R. 35. [5][1997] S.J. No. 470 (Q.L.) [6](1996), 1996 CanLII 6957 (SK QB), 146 Sask. R. 10.

The respondents applied for a declaration that the intensive livestock operation being constructed by Kelvington (KSS) was a development pursuant to s2(d) of the Environmental Assessment Act (EAA) and sought an order for mandamus compelling KSS to conduct an environmental assessment as required by s9 of the EAA. Yellow Quill First Nation applied for intervenor status. The trial judge found, without giving reasons, that the project was a development as defined in the Environmental Assessment Act and the application for mandamus was adjourned sine die. HELD: The appeal was granted and the order set aside without costs. 1)The proposal was not a development as defined in s 2(d) of the EAA. The Department of Agriculture, the Department of the Environment and Resource Management were of the opinion that the KSS project was not a development as defined in the Act as it did not come within any of the criteria listed in s2(d). 2)The Environmental Assessment Branch was of the opinion that no significant impacts on the environment would occur or if they do, mitigation measures would be implemented to reduce or eliminate the potential for significant environmental impact. 3)It was not necessary to decide whether Yellow Quill or the respondents had standing to privately enforce a public right. 4)In light of the decision the following were not in issue: whether the respondent should have applied by way of judicial review in the nature of certiorari; the relationship between the Environmental Assessment and Agricultural Operations Act; and whether a proponent of an intensive livestock operation can be required to make an application under the Agricultural Operations Act and to carry out an environmental impact assessment under s9 of the EAA.

9_1997canlii9803.txt

QB 1997 NO. 471000309 J.C. M.J. IN THE COURT OF QUEEN’S BENCH FAMILY LAW DIVISION JUDICIAL CENTRE OF MOOSE JAW BETWEEN: MILDRED BEATRICE OLSON vs- VERA MILDRED WILLETS RESPONDENT D. ANSELL for the applicant B.R. CRAIK for the respondent JUDGMENT MacLEAN, J. September 15, 1997 The applicant seeks an order pursuant to s. 130 of The Land titles Act S.S. c. L-5 and s. 56 of The Enforcement of Maintenance Orders Act (EMOA)S.S. c. E-9.2 for an Order relieving the LORNE EDWARD WILLITS Estate (the deceased) from payment of maintenance order by Johnson J.(as he then was) on November 28, 1972. Section 130 of the Land Titles Act in part reads as follows: 130 For the purposes of this section, “claimant”, “maintenance order” and “respondent” have the same meanings as ascribed to them In The Enforcement of Maintenance Orders Act. (2) When maintenance order is filed pursuant to s. 33(1) of The Enforcement of Maintenance Orders Act, no certificate of title is to be granted and no transfer, mortgage, lease or other instrument executed by the respondent is to be effectual, except subject to the rights of the claimant. (3) The registrar, on granting certificate of the title and on registering any transfer, mortgage or other instrument executed by the respondent affecting such land, shall be memorandum upon the certificate of title state that the certificate, transfer, mortgage or other instrument is subject to such rights. (4) maintenance order may be discharged by filing in the Land Titles Office in which the maintenance order is filed. (a) not relevant (b) the judgment or order of the court setting aside the maintenance order or certificate of local registrar of the court, under seal of the court, that the maintenance order has been discharged or set aside. Section 56 of the EMOA in part reads: Section 56 where moneys are recoverable pursuant to s. 55, judge of the court in which the maintenance order was made or registered may, on the application of any interested party, relieve the respondent or, if the respondent has died, the estate of the respondent of the obligation to pay, in whole or in part, the amount in default if the judge is satisfied that: (a) having regard to the interests of the respondent or the estate of the respondent, as the case may be, it would be grossly unfair and inequitable not to do so; (b) having regard to the interests of the person in whose favour the maintenance order was made or his estate, as the case may be, it is justified; Mildred Beatrice Olson purports to bring this application on behalf of Lorne Edward Willits Estate, even though she is nether the executrix named in the Will nor a beneficiary. The Will has not been admitted to Probate. The respondent objects to the application being brought on behalf of the estate. She contends the applicant has no standing. Counsel concedes, however, that Ms. Olsen is an “interested party” within the meaning of sec.56 of the EMOA and entitled to bring this application on her own behalf. The motion is signed by Ms. Ansell as solicitor for the applicant Mildred Beatrice Olson. The respondent is not mislead and has not been prejudice. There will be an order amending the Style of Cause to show Ms. Olson as applicant and to amend the motion so that it is Ms. Olson seeking relief. On November 28, 1972 the respondent Vera Mildred Willits was granted decree of Divorce from the deceased. The decree gave her custody of their two children who were then 10 and and child support of $60.00 per month. It also awarded spousal support of $40.00 per month, lump sum of $500.00 and her costs. The lump sum and costs were paid as result of garnishee proceedings. No further payments were ever made despite periodic requests for payment by the respondent. In 1978 the deceased began cohabiting with the applicant in her home at 1001 Hastings Street, Moose Jaw, Saskatchewan. In about November 1980 the applicant transferred her home to the deceased and herself as joint tenants. At about the same time the deceased transferred his two and one-half quarter sections of farm land to the applicant. The then value of the land according to copies of titles which have been filed was $33,000.00. The respondent claims the land is presently worth between $80,000.00 and $160,000.00. Upon the deceased death, which occurred on August 18, 1994, the applicant as surviving joint Tennant obtain title to the Hastings Street property. According to the title it was then worth $16,000.00. During her marriage and following the divorce the respondent resided in the matrimonial home at Mossbank, Saskatchewan. There is no evidence who owned the home or when the respondent vacated the property or what became of it. The applicant suggests there may have been an agreement between the deceased and the respondent whereby the respondent lived in the matrimonial home rent free in lieu of support. The respondent denies such an agreement. The respondent received Welfare to support herself and the children until 1981. During these years she had no funds with which to hire lawyer to enforce the support payments which were due to her. In about 1981 she learned the deceased had transferred his farm land to the applicant but did nothing then or later to enforce her Maintenance Order against the land. The applicant asserts she paid overdue mortgage installments to Farm Credit Corporation although she does not state the amount of the arrears. She also claims to have paid off $4,000.00 execution and $9,575.00 taxes and arrears of taxes. II In the circumstances s.130 of the Land Titles Act is of no assistance to the applicant. This application fails to be determined upon s.56 of the EMOA. The question for resolution in whether it would in the words of the section be “grossly unfair and inequitable” from the applicants perspective to refuse the application and whether such an order can be “justified” in so far as the respondent is concerned. See: Kent vs Kent (1985) 1985 CanLII 3120 (MB CA), 44 R.F.L. (2d) 263 (Man. C.A.) The maintenance order constitutes a charge upon the land and the applicant obtained title to the land subject to that charge. See: Briggs vs Carson (1924) 1924 CanLII 133 (SK CA), 3W.W.R. 465 (Sask.C.A.) The applicant has presented no evidence of the circumstances surrounding the transfer of the land to her. There is no evidence of any consideration being paid nor is there evidence of what became of the income generated by the land prior to the deceased’s death. In Flamand vs Flamand (1987) 1987 CanLII 7121 (MB CA), R.F.L. (3d) 51 the Manitoba Court of Appeal considered s. 61(4) of the Manitoba Family Maintenance Act which is similar to s. 56 of our Act. At pp 52-53 O’Sullivan J.A. noted: These arrears must now be considered as vested debt owning by husband to wife subject to being divested only on its being shown that it would be “grossly unfair and inequitable not to do so” and also that such divestment is justified having regard to the interests of the wife. It is up to party seeking to deprive wife of these payments to establish on balance of probabilities the conditions set out in s. 31.3(4) (now s. 61 4) of the Act. cannot determine on the basis of the affidavit evidence what if any portion of the arrears should remain as charge upon the lands. Some of the evidence conflicts. There is no evidence of the circumstances surrounding the transfer from the deceased to the applicant. The court should hear evidence viva voce. order the trial of an issue. The respondent will assert her right to recover arrears of maintenance pursuant to the order of November 29,1972. The applicant will defend the action and assert her right to discharge of the order pursuant to s. 56 of the EMOA. The costs of this application will be determine, by the trial judge.

The applicant sought an order pursuant to s.130 of the Land Titles Act and s.56 of the Enforcement of Maintenance Orders Act for an order relieving the estate from payment of maintenance ordered in 1972. The respondent objected to the application being brought on behalf of the estate as Olson was neither executrix nor a beneficiary under the Will. The Will had not been admitted to probate. The respondent had divorced testator in 1972 and was granted child support of $60 per month and monthly spousal support of $40. The applicant who cohabited with the deceased since 1978 transferred her home to him in 1980 as joint tenants and he transferred his two and one-half quarter sections of farm land to the applicant. The applicant suggested there was an agreement whereby the respondent lived rent free in the matrimonial home in lieu of support. The respondent received welfare to support herself and the children and had had no funds to pursue enforcement of the unpaid support payments. HELD: 1)The style of cause was amended to show Olson as applicant. She was an interested party within the meaning of s.56 of the EMOA and entitled to bring the application on her own behalf. The respondent was not misled and there was no prejudice. 2)The Land Titles Act was of no assistance to the applicant. The application was to be determined upon s.56 of the EMOA and whether it would be grossly unfair and inequitable to refuse the application. 3)The maintenance order constitutes a charge upon the land and the applicant obtained title to the land subject to that charge. There was no evidence presented either of consideration being paid nor of what became of the income generated by the land prior to the deceased's death. 4)A trial of an issue was ordered to determine what if any portion of the arrears should remain a charge upon the lands. Some of the evidence conflicted. Viva voce evidence should be heard.

1997canlii9636.txt

J. THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2004 SKCA 153 Date: 20041110 Between: Docket: 852 Her Majesty the Queen and Mason Johnson Roberts Coram: Vancise, Jackson Richards, JJ.A. Counsel: Lane Wiegers for the Appellant Mason Johnson Roberts in person Appeal: From: Provincial Court Heard: November 10, 2004 Disposition: Appeal allowed (orally) Written Reasons: November 18, 2004 The Court: The Honourable Mr. Justice Vancise The Honourable Madam Justice Jackson The Honourable Mr. Justice Richards The Court (orally) [1] Mr. Roberts was convicted, after trial, of fraud exceeding five thousand dollars, contrary to s. 380(1)(a) of the Criminal Code. [2] Mr. Roberts wrote cheque for $11,000.00 on his personal bank account in February of 2001, knowing that the account lacked sufficient funds. He deposited the cheque into his CIBC Visa account and the next day withdrew the $11,000.00 in cash. About five days later, he repeated the same process, this time depositing and withdrawing $13,000.00. CIBC Visa lost the entire $24,000.00. [3] Mr. Roberts was 28 years old at the time of sentencing. He was married and had two young children. At sentencing, his debt load was $402,000.00 and there were some 37 different creditors interested in his affairs. Mr. Roberts had no criminal record and pre-sentence report suggested that he was low risk to re-offend. [4] The learned Provincial Court judge granted a conditional discharge with a probation order of one year and a requirement of 200 hours of community service work. He also made restitution order in the amount of $24,000.00. He explained his decision as follows: Having heard comments from counsel for the Crown and counsel for the defence, and having heard the evidence; having perused the pre-sentence report in its brevity; taking into consideration the fact that this man has no previous involvement with the system; taking further into consideration the fact that this was rather intricate kiting system that this man was involved in, there’ll be conditional discharge, one year, usual terms and conditions, plus 200 hours of community service work. [Sentencing Transcript at pp. 5] [5] In this Court, the Crown took issue with the discharge and asked that a 12 month conditional sentence be imposed with a condition of 200 hours of community service work. [6] In our view, leave to appeal should be granted and the Crown’s appeal should be allowed. [7] Section 730(1) of the Criminal Code provides that discharge may be granted only if that disposition is both in the best interests of the accused and not contrary to the public interest. Section 730(1) reads as follows: 730. (1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in probation order made under subsection 731(2). [8] In R. v. Elsharawy (1997), 1997 CanLII 14708 (NL CA), 119 C.C.C. (3d) 565, at pp. 566-67, the Court of Appeal for Newfoundland commented as follows on the prerequisites to valid discharge: [3] For the Court to exercise its discretion to grant discharge under s. 730 of the Criminal Code, the Court must consider that that type of disposition is: (i) in the best interests of the accused: and (ii) not contrary to the public interest. The first condition presupposes that the accused is person of good character, usually without previous conviction or discharge, that he does not require personal deterrence or rehabilitation and that criminal conviction may have significant adverse repercussions. The second condition involves consideration of the principle of general deterrence with attention being paid to the gravity of the offence, its incidence in the community, public attitudes towards it and public confidence in the effective enforcement of the criminal law. See R. v. Fallofield (1973), 1973 CanLII 1412 (BC CA), 13 C.C.C. (2d) 450 (B.C.C.A.), and R. v. Waters (1990), 1990 CanLII 7561 (SK QB), 54 C.C.C. (3d) 40 (Sask. Q.B.). [9] We are of the view that the learned Provincial Court judge failed to give proper consideration to the public interest criterion in s. 730(1). First, the sentence imposed did not properly reflect the principle of general deterrence. conditional discharge would do little to discourage others in Mr. Roberts’ situation from undertaking similar sorts of criminal activity. See: R. v. Wileniec (S.) (2003), 2003 SKCA 111 (CanLII), 238 Sask. R. 214 (C.A.). [10] Second, the sentence imposed did not reflect the gravity of the offence. This was a serious fraud accomplished by virtue of what the Provincial Court judge called “a rather intricate kiting system.” It involved total of $24,000.00 which amount was lost by CIBC Visa. [11] Third, public confidence in the criminal justice system would be undermined if there was no conviction on the facts at hand. This offence was significant and should attract criminal record. [12] In the result, leave to appeal is granted and twelve month conditional sentence is substituted in place of the conditional discharge. We prescribe the compulsory conditions set out in s. 742.3(1) of the Criminal Code and further condition that Mr. Roberts perform 200 hours of community service work, with credit to be given in that regard for any such work performed to date pursuant to the probation order made by the sentencing judge. The restitution order will remain in place.

The respondent was convicted after trial of fraud exceeding $5,000 contrary to s. 380(1)(a) of the Criminal Code. The trial judge granted him a conditional discharge with a probation order of 1 year and a requirement of 200 hours of community service work. He also made a restitution order in the amount of $24,000. The Crown appeals asking that a 12 month conditional sentence be imposed with a condition of 200 hours of community service. HELD: Appeal allowed orally. 1) The learned judge failed to give proper consideration to the public interest criterion in s. 730(1) of the Code. The sentence imposed did not properly reflect the principle of deterrence or the gravity of the offence. 2) This was a serious fraud accomplished by what the judge called a rather intricate kiting system.

c_2004skca153.txt

1999 SKQB Q.B.G. A.D. 1997 No. 1582 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: RODNEY DIGNEAN and WHITE BEAR FIRST NATION NO. DEFENDANT Darcia G. Schirr for Rodney Dignean Michael B. Griffin for White Bear First Nation No. 70 JUDGMENT WIMMER J. August 5, 1999 [1] In May 1988, White Bear First Nation No. 70 hired Rodney Dignean to serve as guidance counsellor at its education complex located near Carlyle, Saskatchewan. In 1990, he became co-ordinator of post secondary education programs and remained in that position until terminated in May 1997. He now seeks damages for wrongful dismissal. [2] In addition to managing the post secondary programs, with an annual budget approaching $960,000 in recent years, Dignean also taught upgrading and university entrance courses and supervised other teaching and support staff. Until the end of the 1995-1996 school year he was responsible, through the director of education, to the Chief and Band Council. Then, in the summer of 1996, an education board was established and given the task of overseeing the administration of the education complex and its teaching programs. The board initially took the form of committee appointed by the Chief and Council. Later it became corporation known as White Bear Education Complex Inc. with the members of the original committee becoming members of the corporation’s board of directors. Relations between Dignean and board members were not good. [3] Dignean felt that board members were intruding too much into administrative matters rather than concentrating on policy decisions. Also, they made demands that were difficult to comply with. Board members, on the other hand, regarded Dignean as uncooperative and insubordinate and, at board meeting held on September 3, 1996, they passed resolution requiring that he be reprimanded for withholding information. Dignean was offended by this and thought it unfair. He says he was never sure exactly what they expected of him and, on September 20, 1996, he presented letter to the chairman of the board outlining his frustrations. Later, on December 13, 1996, he again documented his concerns in letter to the band council solicitor, Lesia Osterag. This was done upon her recommendation and was authorized by member of council. Unfortunately, it only fomented more trouble and, at meeting held on January 29, 1997, the Chief and Council passed the following resolution: whereas: A. The Board of Directors of the White Bear Education Complex Inc. have serious concerns with number of the employees working within White Bear Education Complex system. B. The Board of Directors of the White Bear Education Complex Inc. proposes to proceed as follows with respect to the following employees: (b) With respect to Rodney Dignean that he be suspended, without pay, for ten day period, effective January 29, 1997, during which time full investigation of his conduct in his position of Coordinator of Post Secondary Programs be completed. If such investigation reveals situation where just cause for dismissal has occurred then to proceed to dismiss Mr. Dignean for just cause in writing with full reasons set out. NOW THEREFORE BE IT RESOLVED THAT the Chief and Council fully endorse and support the proposed method of proceeding with personnel issues within the White Bear Education system as set out above. As things turned out, Dignean’s ten day suspension continued until May 15, 1997, when he was formally terminated by resolution passed at joint meeting of the Chief and Council and the White Bear Education Complex Inc. Board of Directors. [4] Whether there was any adequate investigation carried out as contemplated by the January 29 resolution is doubtful. very brief written report by one Reggie Blacksmith, in which he describes himself as “Consultant for the White Bear Education Complex Inc. Board,” concludes that: Rodney Dignean must be terminated from the position as “Post-Secondary Co-ordinator.” For he has disgraced his responsible position, and lost the trust of his employer, White Bear First Nations Chief and Council and White Bear Education Complex Inc. This conclusion appears to be based upon little more than an examination of Dignean’s December 13, 1996, letter to the band council solicitor. It is not apparent that Blacksmith interviewed any education complex employee or anyone else who might have been able to assist in the inquiry. He did not testify at the trial. [5] Dignean received formal notice of his termination by means of letter dated May 22, 1997, directed to his counsel. He commenced this action on June 4, 1977, claiming: a) General damages as may be proven at trial in an amount exceeding $10,000; b) Special damages; c) Punitive or aggravated damages; d) Solicitor/client costs; e) Pre-judgment interest; and f) Such further or other relief as this Honourable Court may allow. The Band countered with statement of defence alleging that the termination was for just cause. It provided the following particulars: 10. Just cause for the Plaintiff’s dismissal from his employment existed in that: (a) He failed to co-operate with the Board of Directors of the White Bear Education Complex Inc. even though this Board was duly appointed by the Chief and Council of White Bear to oversee the functioning of all education programs and education facilities at White Bear. (b) He failed or refused to carry out the reasonable instructions of the Board of Directors such as providing information or copies of written documentation to them. (c) He actively contributed to the disruption of the work place. (d) He failed and/or refused to follow instructions of the Board of Directors. (e) He displayed negative attitude toward the Board of Directors which attitude was displayed in front of other staff members and in front of students. (f) He was insubordinate toward the Board of Directors in that he publicly name-called, defamed and criticized the Board of Directors thereby breaching his duty of loyalty owed to the Board and the White Bear First Nation. modicum of evidence supports some of these assertions. The question is whether it is enough to justify summary dismissal. [6] Just cause is not altogether term of art. In general, it refers to that degree of misconduct or incompetence which warrants stiff reprisal as opposed to some lesser sanction such as warning, reprimand or remediation. Mole, Wrongful Dismissal Practice Manual, vol. (Toronto:Butterworths:, 1984 (looseleaf, 1998, Issue 52), §4.3 and 4.4, puts it this way: §4.3 Given that dismissal for just cause is an exception to the employee’s usual rights, it is clear that summary dismissal can be utilized only for serious misconduct or breaches of fundamental kind. §4.4 The question whether misconduct is serious enough to justify dismissal will be question of fact to be assessed individually in each case. This passage is from the judgment of Baynton J. in Rae v. Armadale Co. et al (1998), 1998 CanLII 13909 (SK QB), 173 Sask. R. 174 (Sask. Q.B.) at 181: 1. Just cause for dismissal (i.e., that which entitles an employer to dismiss an employee without reasonable notice) entails serious misconduct on the part of the employee that is clearly inconsistent with his or her express or implied conditions of service. Serious misconduct involves risk of injury to the employer’s interest through continued employment. Each case must be considered on its own unique set of circumstances, including the length of employment and the nature of the position held. What constitutes just cause must be determined objectively. Howard A. Levitt, The Law of Dismissal in Canada (2nd Ed.) (Toronto: Canada Law Book, 1992) at p. 122. The onus of proving the existence of just cause always lies with the employer and it is not enough simply to show a loss of confidence in the employee or dissatisfaction with his or her job performance. [7] Dignean had been relatively long term employee of the defendant and his qualifications for the job were ample. He holds Bachelor of Arts and Bachelor of Education from the University of Saskatchewan together with Diploma in Education Administration from Brandon University. Eugene Doroshenko, the director of education until early 1997, testified that Dignean’s work was satisfactory. He described Dignean as caring, innovative, and always having the best interests of the students at heart. He also said that programs at the education complex were achieving positive results. This notwithstanding, his own employment was terminated in early 1997 as was that of number of teachers. It appears that the directors were determined to make fundamental changes overall. [8] Evidence presented on behalf of the defendant focused upon three complaints concerning Dignean’s conduct and job performance. The first was that he did not strictly comply with the post secondary education reporting requirements of Indian and Northern Affairs Canada thereby putting the band at risk of possibly losing federal funding. Second, there was feeling among some that he deliberately refused, or at least failed, to comply with requests by board members for information. And third, that he was insubordinate and demonstrated negative attitude toward board members particularly as evidenced by an offensive comment made at staff meeting. [9] Indian and Norther Affairs had requirement that student funding reports (otherwise referred to as “census”) be filed by December of each year to justify the legitimacy of education expenditures. The department used the information to explain and defend First Nation education funding at both national and regional levels. Preparation of the census was Dignean’s responsibility and in 1996 he was late. In fact, the department did not receive the information until February 5, 1997. Some board members apparently saw this as breach of duty which imperiled funding for its programs. Dignean explained that the delay on that occasion resulted because he was then in the process of computerizing the information to make the system more efficient. The department’s funding services officer of the day testified that these reports were most often late and that funding restrictions were never imposed on that account. Further, the present co-ordinator of post secondary education programs has, without adverse consequences, been much slower than Dignean in preparing the census. It follows that this complaint could not warrant summary dismissal. [10] Cheryl Peterson, Jackie Maxie, Doreen Pasap and Almer Standingready testified for the defence. Each was member of the board of directors at the relevant time and each expressed dissatisfaction with the way Dignean provided information to the board. Peterson said that when information was requested it was not forthcoming and that when provided it was not up to date. Maxie also complained of incomplete information and felt Dignean was insubordinate in not complying with requests. Pasap and Standingready simply spoke of information not being provided to their satisfaction. [11] Dignean disputes these suggestions and says he did his best to meet their demands. On one occasion he put together an information package for each board member and brought it to meeting. However, they would not look at it because it was not in the form they wanted. He says if he had known what they wanted he would have done his best to comply. There is evidence that supports his position. Doroshenko says there was never any withholding of information from board members and that everything that was asked for was provided. The problem was they kept asking for more and more. Seemingly, they could never be satisfied. [12] Donald McArthur was not member of the board of directors, but he was the band councillor with responsibility for education. He says, in general, that board members harassed and threatened teachers. As for the complaints about Dignean, he says they were unjustified because there was never enough time provided for the preparation of the kinds of reports some board members expected. He disagreed with Dignean’s suspension and said it arose from the letter sent to Lesia Osterag on December 13, 1996. McArthur thought everyone had right to express concerns and, in fact, he had told Dignean that if he had concerns they should be brought forward. At one point, at Dignean’s request, he tried to organize meeting with the board to discuss policies and guidelines. It never happened. When it came to Dignean’s termination he says there was no discussion about what, in particular, they were relying upon as just cause. The motion just passed. [13] There were disagreements that undoubtedly led to friction. These frequently had to do with student funding applications, often by board members and their children. For example, one board member, Angie McArthur, was herself student. In September 1996, she applied to the board for funding extension. Dignean opposed this because it would be contrary to existing policy. Her maximum allotment had been used up. Dignean wanted to follow established practices in order to avoid any appearance of politically motivated decisions, bias or conflict of interest. Also, there was funding cap and he tried to apply consistent standards in order to accommodate all qualifying applications. The board nevertheless passed motion authorizing the extension McArthur requested. It was this sort of episode that perhaps culminated in an unfortunate occurrence at staff meeting in October. [14] It was an emotional meeting described by one witness as “gripe session.” Staff morale at the education complex had become very low. In the heat of the moment Dignean referred to board members as bunch of “dry drunks” trying to run an education program. He says he used the analogy to describe person who says one thing but does another person who claims all is well but whose patterns of behaviour suggest otherwise. He admits it was bad analogy and it is one which might, in some circumstances, justify dismissal. Board members learned of the incident the day it happened but took no action. They never confronted Dignean about it and, as infer from the testimony of Donald McArthur, it was not one of the factors leading to his suspension in January 1997. Nor is it referred to in Blacksmith’s investigation report as basis for the dismissal recommendation. In my opinion, insubordination serious enough to warrant dismissal for cause must be acted upon with dispatch as was done in the case of Laird v. Saskatchewan Roughrider Football Club (1982), 1982 CanLII 2616 (SK QB), 18 Sask. R. 333 (Sask. Q.B.). The failure so to do when all the facts are known can amount to forbearance if not condonation or forgiveness. [15] To me, the evidence taken as a whole falls short of proving just cause. There is no doubt that board members were unhappy with Dignean, but never did anyone meet with him to discuss the reasons. There was no adequate job description and no performance evaluation. He was not given chance to adapt. Whether by design or accident, some members of the board created working environment that made it impossible for Dignean to perform his duties to their satisfaction. It was as though they were determined to see him gone and set about to find way. He was treated unfairly and wrongfully dismissed. His damages, however, are limited. [16] Dignean’s contract with the Chief and Band Council was not one of indefinite hiring. Like all teachers at the education complex, he was employed from year to year. One year contracts were necessary because long term funding was always uncertain. Contracts for the 1996-97 school year contained this clause: 7. This agreement shall be in force for the Academic year 1996-97 or until terminated in manner as set out hereunder: a) at any time by mutual agreement of the parties in writing. b) by either of the parties with three (3) months notice in writing to the other party. c) by the Band at any time and without notice for just cause. d) replaced by new agreement between the parties. The academic year runs from September to June 30. Dignean was dismissed within weeks of his contract expiring in the normal course. [17] An employee dismissed without cause during the currency of fixed term contract is entitled to be paid for the whole of the term. That is clear from the judgment of Mr. Justice Scheibel in Zaglanikis v. Dana West Hotels et al (1982), 1982 CanLII 2298 (SK QB), 20 Sask. R. 59. Dignean’s contract provided for an annual salary of $45,760.60 to be paid in twelve monthly installments. Up to the date of his termination he had received $33,366.38. He is entitled to judgment for the difference; namely, $12,394.22. He will also have pre-judgment interest on that amount calculated in accordance with The Pre-judgment Interest Act, S.S. 1984-85-86, c. P-22.2. [18] There remains the claim for punitive or aggravated damages. Collectively referred to as exemplary damages, these are rarely awarded in contract cases where the injured party is essentially entitled to no more than the contract provides. Circumstances that may justify such awards are described in Vorsis v. Insurance Corporation of British Columbia, 1989 CanLII 93 (SCC), [1989] S.C.R. 1085. [19] Punitive damages are what the phrase implies. They are intended as an expression of denunciation of the wrongdoer’s conduct and as form of punishment where there has been no other sanction. Mr. Justice McIntyre stated in Vorsis at page 1108 that they “. may only be awarded in respect of conduct which is of such nature as to be deserving of punishment because of its harsh, vindictive, reprehensible and malicious nature. .” While think Dignean was treated unfairly, the employer’s conduct toward him was not so outrageous or shocking as to fit this description. Aggravated damages refer to an enhanced award intended to compensate loss occasioned by some wrongful act independent of the contract. An example is where the evidence shows wilful, flagrant and extreme conduct by defendant directly causing the plaintiff to suffer serious mental distress independent of pecuniary loss. That was not the case here. For these reasons, the claim for punitive or aggravated damages cannot succeed. [20] Mr. Dignean will have his taxable costs of the proceeding including all necessary disbursements reasonably incurred.

The plaintiff was the coordinator of post-secondary education programs for White Bear First Nation, between 1990 until his termination in May 1997. The plaintiff managed post-secondary programs with an annual budget of $960,000, taught upgrading and university entrance courses, and supervised other teaching and support staff. In 1996 an education board was established and given the task of overseeing the administration of the education complex and its teaching programs. There was overlap between the plaintiff and the board's mandate and functions that led to conflict. The board suspended the plaintiff for 10 days during which time it intended to investigate the plaintiff's conduct. The suspension continued and the board later passed a resolution formally terminating the plaintiff's employment. The plaintiff sued for wrongful dismissal. The defendant contended it dismissed the plaintiff with cause. HELD: The plaintiff was wrongfully dismissed. The court ruled that the employer had to provide evidence demonstrating serious employee misconduct. There was no such evidence produced by the defendant, and it was not enough simply to show a loss of confidence in the plaintiff or dissatisfaction with his job performance. The plaintiff's damages were limited to being paid out the end of his term contract. Punitive and aggravated damages were not allowed. Although the plaintiff had been treated unfairly, the plaintiff had not shown that the employer was guilty of harsh, vindictive, reprehensible and malicious conduct.

4_1999skqb3.txt

Dated: 20020617 2002 SKCA 80 Docket: 66 THE COURT OF APPEAL FOR SASKATCHEWAN Coram: Bayda C.J.S., Tallis Lane JJ.A. TERRY BRIAN STEFIUK APPELLANT (Applicant) and TRINA STELLA PLANEDIN (formerly Stefiuk) RESPONDENT (Petitioner) COUNSEL: Mr. Richard A. Mayer for the Appellant Written submission filed by the Respondent with no one appearing DISPOSITION: On Appeal From: QB 01902 of A.D. 1991, J.C. of Yorkton Appeal Heard: June 10, 2002 Appeal Decided: June 17, 2002 Written Reasons: June 17, 2002 Reasons By: The Honourable Mr. Justice Lane In Concurrence: The Honourable Chief Justice Bayda The Honourable Mr. Justice Tallis [1] The parties divorced in 1992 and at that time the appellant was ordered to pay $200 month support for their child. The appellant later entered into new relationship and he and his common-law spouse had mentally handicapped child born in 1995. In 1996, the appellant was laid off from his employment and heceased making his support payments. He remained at home to care for the child. In 1997, his common-law spouse died suddenly and he has since remained the sole care and support of the child. He used his common-law spouse’s modest insurance proceeds for living expenses and he made no payment towards the accumulated arrears of support. [2] In March, 2000, he made an application to vary the support order both by suspending payment until he gained employment, and by reducing the arrears. The application was dismissed without reasons. He appealed the resulting order. [3] The appellant has had representation through Legal Aid. The respondent did not appear because she does not have the financial resources. We originally adjourned the appeal to obtain information from the appellant as to his employment status. The adjournment was granted on the condition enforcement of the order was stayed so long as he continued to make payment of $30 month to Maintenance Enforcement which he has done. [4] The appellant, and his daughter (now full-time student), live on the Canada Pension Plan Survivor and Orphan’s Benefit, the Federal Child Tax Benefit, the Saskatchewan Child Benefit and the G.S.T. Credit. He has filed further affidavit material which shows he is presently unable to work because of medical condition and is on the waiting list for back surgery. He is now studying to obtain his GED grade 12 which he hopes to receive in December of this year. [5] The respondent has been sympathetic but in response to the appellant’s application to vary was of the view he was able to work at that time. She herself has very limited financial resources as she and her husband are raising three children. [6] The appellant must recognize, and counsel assures us he now does, that he must obtain employment when his health allows. In these unfortunate circumstances it is clear the arrears are not likely to ever be paid in full and we order them reduced to $5,000. Enforcement of the order below is stayed so long as the appellant continues to make the payment of $30 a month to Maintenance Enforcement. When his employment situation is known, it is, as suggested by his counsel, open to the parties to negotiate resolution of the matter or he can make an application to finally decide the matters of arrears and support. The appeal is therefore allowed to this extent. There will be no order as to costs. DATED at the City of Regina, in the Province of Saskatchewan, this 17th day of June, A.D. 2002. concur BAYDA C.J.S. concur TALLIS J.A.

The father was ordered to pay child support of $200 per month in 1992. He was laid off his employment in 1996 and ceased support payments. His common law spouse died suddenly in 1997 and he has remained the sole care and support for their mentally handicapped child. He appealed the dismissal of his application in March 2000 to vary the support order by suspending payment until he gained employment and by reducing arrears. HELD: The appeal was allowed in part. He must obtain employment when his health allows. Arrears were reduced to $5,000 and enforcement was stayed so long as he continues to make monthly payments of $30 to Maintenance Enforcement.

5_2002skca80.txt

NOVA SCOTIA COURT OF APPEAL Citation: Murphy v. Wulkowicz, 2005 NSCA 147 Date: 20051123 Docket: CA 217527 Registry: Halifax Between: Martha A. Murphy v. Robert M. Wulkowicz Respondent Judge(s): MacDonald, C.J.N.S., Freeman and Fichaud, JJ.A. Appeal Heard: September 30, 2005 in Halifax, Nova Scotia Held: Appeal and cross-appeal dismissed without costs, per reasons for judgment of MacDonald, C.J.N.S.; Freeman and Fichaud, JJ.A. concurring. Counsel: Martha A. Murphy, the appellant in person Robert M. Wulkowicz, the respondent in person Reasons for judgment: [1] Chief Justice Kennedy of the Supreme Court granted the parties’ divorce and resolved several corollary issues including the division of assets. The appellant wife took issue with this division, citing several purported errors by the judge. The respondent husband also cross-appealed. He too sought more favourable division of assets. He also claims, for the first time on appeal, an entitlement to the appellant’s health care coverage. [2] Both parties, as self-represented litigants, sought to introduce fresh evidence on appeal. [3] Having carefully reviewed the record together with the parties’ submissions, conclude there is no basis for admitting any of the proposed fresh evidence on appeal. This evidence was either readily available at trial, irrelevant, or both. Furthermore, conclude that the judge committed no reversible error. I would dismiss both the appeal and the cross-appeal without costs. [4] The parties are from the State of Illinois. They were married in 1994, each for the second time. Their dream was to sell their home in Chicago to retire in Nova Scotia. In May of 1999, they purchased home on approximately 7.5 acres of land located at Half Island Cove, Guysborough County (“the home property”). year later they purchased an adjoining 100 acre lot referred to as the “camp property” together with third nearby 30 acre lot known as the “acreage”. [5] Unfortunately, after selling their Chicago home and while still in the process of transporting their belongings to Nova Scotia, the parties separated. This was in March of 2001. That same month the appellant filed for divorce in Nova Scotia. [6] The trial was held in Truro on January 17, 2003. The primary contest related to the division of assets. The main focus involved the disposition of the “camp property”; it apparently being agreed that Ms. Murphy would receive the “home property” and the “acreage”. second related issue involved the proceeds from the sale of the Chicago property. Mr. Wulkowicz handled this transaction and was called to account for the net proceeds. He insisted that the proceeds had already been divided evenly after expenses. On the other hand, Ms. Murphy insisted that there were significant monies unaccounted for and that this shortfall should at least justify her receiving all three Nova Scotia properties. [7] The judge awarded the disputed “camp property” to Mr. Wulkowicz. In doing so he observed that Mr. Wulkowicz’s accounting left lot to be desired and that there was shortfall owed to Ms. Murphy from the sale of the Chicago property. However, on the sparse evidence before him, the judge was unable to determine the exact amount of this shortfall. In the end the judge felt that any such shortfall would be adequately “addressed by the favourable differential in the value of the Nova Scotia land [two lots] and the motor vehicles that she will receive”. THE ISSUES ON APPEAL [8] Both parties have listed extensive grounds of appeal. Because they are self-represented, rather than repeat these grounds, will try to paraphrase the thrust of their respective positions. [9] Ms. Murphy’s main concern involved the fact that Mr. Wulkowicz was awarded the “camp property”. She feels that this is patently unfair for several reasons. First she feels that the judge ignored or underestimated the significance of the shortfall owed her from the sale of the Chicago property. Furthermore, Mr. Wulkowicz’s failure to provide proper accounting should not prejudice her. She also suggests that the judge ignored or underestimated the significance of awarding Mr. Wulkowicz lot of land adjoining her “home property”. Her “home property” she felt would be rendered useless to her because she is afraid of having him living so close by. Furthermore she asserts that Mr. Wulkowicz lied not only in his accounting but also when he said he planned to make Nova Scotia his home. She feels that the judge missed obvious evidence in this regard. [10] Ms. Murphy also sought credit for certain receivables she asserts were family debts which Mr. Wulkowicz should collect and share. She challenged the judge’s rejection of this claim. [11] Ms. Murphy also takes issue with the fact that she has been unable to access her personal belongings which for several years now have been locked in two large trailers that Mr. Wulkowicz arranged to transport from Chicago to Nova Scotia. She also asserts that the judge rendered too much assistance to Mr. Wulkowicz who was also self-represented at trial. Finally she suggests that the judge’s decision was not rendered in timely fashion and that this delay hampered his ability to unravel what was already confusing body of evidence. [12] From Mr. Wulkowicz’s litany of confusing contentions, the following claims can be distilled. He seeks an entitlement to Ms. Murphy’s health insurance which was cancelled by her post separation. He denies any agreement giving Ms. Murphy the “acreage” property and feels that he should receive it. Finally, because the “camp property” is landlocked, he seeks access by way of an easement over Ms. Murphy’s “home property”. In justifying much of this relief, Mr. Wulkowicz does not point to alleged errors on the part of the judge. Instead he feels justified as “sanctions and damages for the malicious egregious bad faith actions of the appellant”. [13] will address each assertion in order. However, first will deal with the respective applications to introduce fresh evidence on appeal. ANALYSIS The Requests to Introduce Fresh Evidence [14] Hamilton, J.A. of this court recently addressed the four part test for admitting fresh evidence on appeal. In Harris v. Nova Scotia Barristers' Society 2004 NSCA 143 (CanLII), [2004] N.S.J. No. 463, she noted: 105 With respect to the first two affidavits, the test for the admission of fresh evidence on appeal was set out by the Supreme Court of Canada in Palmer v. The Queen, 1979 CanLII (SCC), [1980] S.C.R. 759 at page 775: Parliament has given the Court of Appeal broad discretion in s. 610(1)(d). The overriding consideration must be in the words of the enactment "the interests of justice" and it would not serve the interests of justice to permit any witness by simply repudiating or changing his trial evidence to reopen trials at will to the general detriment of the administration of justice. Applications of this nature have been frequent and courts of appeal in various provinces have pronounced upon them ‑‑ see for example Regina v. Stewart (1972), 1972 CanLII 1445 (BC CA), C.C.C. (2d) 137 (B.C.C.A.); Regina v. Foster (1977), 1977 ALTASCAD 300 (CanLII), A.R. (Alta. C.A.); Regina v. McDonald 1969 CanLII 334 (ON CA), [1970] C.C.C. 426 (Ont. C.A.); Regina v. Demeter (1975), 1975 CanLII 685 (ON CA), 25 C.C.C. (2d) 417 (Ont. C.A.). From these and other cases, many of which are referred to in the above authorities, the following principles have emerged: (1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in criminal case as in civil cases: see McMartin v. The Queen [1964 CanLII 43 (SCC), [1964] S.C.R. 484]. (2) The evidence must be relevant in the sense that it bears upon decisive or potentially decisive issue in the trial. (3) The evidence must be credible in the sense that it is reasonably capable of belief, and (4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. 106 In Thies v. Thies (1992), 1992 CanLII 2590 (NS CA), 110 N.S.R. (2d) 177, this Court approved the use of the Palmer test for admission of fresh evidence on appeals in civil cases. am satisfied the Palmer test is the appropriate test to apply in this appeal. Mr. Wulkowicz’s Proposed Fresh Evidence [15] On appeal, Mr. Wulkowicz attempted to introduce four volumes of materials. The first volume is essentially reproduction of the post trial brief that Mr. Wulkowicz tried to have the judge consider. It contained great deal of untested evidence which was either irrelevant or in any case would have been readily available at trial. The trial judge properly refused to consider this material after the fact. Likewise it ought not be accepted by us. The second and third volumes essentially represent the entire record of parallel claim Ms. Murphy made in the Circuit Court of Cook County, Illinois. This material bears absolutely no relevance to the issues either at trial or on appeal before us. Mr. Wulkowicz’s fourth volume was filed on September 29, 2005, the day before we heard this appeal. It purports to be his sister’s medical records verifying the many visits she made to the emergency department of the Oak Park, Illinois Hospital. Mr. Wulkowicz thought these may be relevant to show why he was remiss in producing the appropriate documentation at trial. His excuse was that he was preoccupied caring for his sister. Again these documents have absolutely no relevance to any trial or appeal issue. would deny Mr. Wulkowicz’s application to admit fresh evidence in its entirety. Ms. Murphy’s Proposed Fresh Evidence [16] We received material from Ms. Murphy on September 30, 2005, the actual day that this appeal was heard. They are the closing documents relative to the purchase of the “camp property” and the “acreage” property. According to this material, it appears that Mr. Wulkowicz overstated the purchase price of this property by as much as $70,000.U.S. Thus these documents may have been relevant at trial. Yet with due diligence, they could have been readily available for trial. In her affidavit supporting their admission, Ms. Murphy explained her failure to produce them at that time: As testified at trial, Respondent insisted on handling all details of the transaction and excluded me from all aspects of the purchase of the Camp Property. 11 continually asked Respondent for copies of the purchase documents in 2000 and after. At first, he told me he “couldn’t find them”; after we separated, he simply never responded to my requests. 12 Despite the many attempts by Respondent to keep me from getting any of the documents relating to our purchase of the Camp Property and the Acreage, have now managed to locate such documents and am including them herewith. 20 Although asked for these documents many times over the last five years, never received copies. It was only now, without the assistance of either Respondent, who was acting on my behalf in self-appointed fiduciary status, that was able to get copies which now submit to the Court. [17] Yet these documents, generated by the parties’ property lawyers, date back to the year 2000. Ms. Murphy is an identified client and (either directly or through her then counsel) could have easily secured this material well in advance of the trial. While this omission is regretful, it would not be proper for us to accept this material untested on the day of the appeal. In no case, without consent, could the Court of Appeal just admit the document as is and then use it. There would have to be the same opportunity for direct and cross-examination related to the document as would exist at trial. This highlights the rationale for the principle that the document, if available, should have been rendered at trial. It is not the role of the Court of Appeal to exercise de novo trial functions for the consideration of evidence which was available for the trial. [18] In fact, it appears that both parties have attempted to essentially treat this appeal as new trial supplementary to the original hearing. Considering they are self-represented litigants in an emotionally charged conflict, perhaps this should not be surprising. In any event, would deny Ms. Murphy’s application to admit fresh evidence. The Case on Appeal Standard of Review [19] In reviewing an order for the division of assets, the usual civil standard applies. Recently, Bateman, J.A. in Hendrickson v. Hendrickson [2005] N.S.J. No. 145; 2005 NSCA 67 (CanLII), succinctly explained: The standard of review on appeals from orders for child support and the division of assets is the usual civil standard. Findings of fact and inferences from facts are immune from review save for palpable and overriding error. Questions of law are subject to standard of correctness. question of mixed fact and law involves the application of legal standard to set of facts and is subject to standard of palpable and overriding error unless it is clear that the trial judge made some extricable error in principle with respect to the characterization of the standard or its application, in which case the error may amount to an error of law, subject to standard of correctness (Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] S.C.R. 235; MacIsaac v. MacIsaac (1996), 1996 CanLII 5612 (NS CA), 150 N.S.R.(2d) 321 (C.A.) ). The Appellant’s Grounds of Appeal The Camp Property [20] As noted, Ms. Murphy felt entitled to this property in large measure because of the significant shortfall she felt existed from the sale of the Chicago property. She maintains that Mr. Wulkowicz deceitfully withheld pertinent information in order to deprive her of her fair share. Yet the judge made clear finding of fact rejecting this submission. He found Mr. Wulkowicz to be “creditable” on this issue. He wrote: 44 The matrimonial home was in Chicago. It was this property that the husband returned to the United States to sell. It did sell in October of 2000, for the price of $500,000.00 U.S. 45 Much of the hearing involved the questions of where that money went. The evidence is confusing. 46 The wife testified that she does not know what happened to much of the equity arising from that sale. The sale was overseen by the husband and he disbursed the funds. The husband struggled to explain that distribution. 47 Let me say that found the husband to be creditable. Judges are too familiar with the spouse who hides, transfers, undervalues and manipulates assets, with the intent of preventing the former partner from sharing, in matrimonial property. 48 do not believe that the husband in this case is acting in that matter. conclude, rather, that he at trial was legitimately confused about how that money was used. [21] The judge acknowledged the difficulty in tracking the proceeds from the sale of the Chicago property. In fact he was unable to determine the exact amount of the credit due to Ms. Murphy. Instead he chose pragmatic solution. He concluded that the value of the assets retained by Ms. Murphy exceeded the value of those retained by Mr. Wulkowicz. This resulted in credit to Mr. Wulkowicz. He then simply set one credit off against the other. He reasoned: 51 The wife submits that after debts were paid off and the Nova Scotia property purchased, there should have been approximately $186,500.00 U.S. left to be divided. She submits that she should have half of that, approximately $93,250.00 U.S. 52 She said that she received $60,000.00 U.S. from the sale proceeds, approximately one year after the closing. She agrees that an additional $8,000.00 U.S. was transferred to her account to look after household bills. 53 She says the remaining $118,500.00 from the sale was kept by the husband. 54 The husband says that she is mistaken. He is left with roughly the equivalent of what the wife received. 55 On the basis of the evidence properly before me, it is not possible to make definitive finding. 56 can determine that the wife should have received more of the equity derived from the sale of the Chicago property, however, on the evidence, am unable to conclude exactly how much more. 57 determine that this shortfall is addressed by the favourable differential in the value of the Nova Scotia land and the motor vehicles that she will receive. 58 will not be ordering cash equalization payment as sought by the wife. [22] There was an evidentiary basis for the judge’s conclusion that the value of the assets retained by Ms. Murphy exceeded the value of those retained by Mr. Wulkowicz. In fact, the evidence supported differential in excess of $30,000 Cdn. For example, the judge accepted Ms. Murphy’s value of the Nova Scotia real estate. 22 As indicated, the parties own three separate properties, all located at Half Island Cove, Guysborough County, Nova Scotia. There were no appraisals put into evidence. accept the values submitted by the wife; the “house property” at $42,046.70, the “camp property” at $31,060.99, and the additional lot referred to as “the acreage” at $2,543.00. [23] He also noted agreement on the value of the motor vehicles most of which went to Ms. Murphy. In doing so he accepted Mr. Wulkowicz’s evidence that two of the vehicles in his possession no longer had any value: 29 The parties own or owned number of motor vehicles. It is agreed that the wife will retain the 1996 Dodge Van (value $8,000.00) and the 1984 Ford Teaga Motor Home (value $8,000.00) and the 1979 Dodge Teaga Motor Home (value $2,000.00). These valuations are agreed upon. 30 It is agreed that the husband will keep the Ford Ranger truck that has value of $500.00. 31 The wife has submitted that the husband should be credited with the value of Travellers Motor Home and “Cube Van,” both of which, she says, will remain in his possession. 32 The husband responds that neither of these latter vehicles has any value. In fact, they will not be possessed by him. The Travellers Motor Home, he says, was left in the driveway of the Chicago house after the sale of that property, because it had no value. The Cube Van was purchased with proceeds of the sale of the Chicago property, to move the family goods to Nova Scotia, but broke down en route and was abandoned because the cost of repairs would have exceeded the value of the vehicle. 33 accept the husband’s explanation that the Travellers Motor Home and the Cube Van are now not factor in the division of assets. [24] Based on the above and as the following table demonstrates, Ms. Murphy would owe Mr. Wulkowicz $15,514.50 Cdn. to equalize the value of the Nova Scotia properties and motor vehicles she retained. DIVISION OF NOVA SCOTIA PROPERTY AND VEHICLES Total Mr. Wulkowicz Ms. Murphy ASSETS: Real Property: (a) “House” property $42,046 $42,046 (b) “Acreage” property 2,543 2,543 (c) “Camp” property $31,060 $31,060 Motor Vehicles: (a) 1996 Dodge Van 8,000 8,000 (b) 1984 Ford Teaga 8,000 8,000 (c) Motor Home 1979 Dodge Teaga 2,000 2,000 Motor Home (d) Ford Ranger truck 500 500 TOTAL ASSETS: $94,149 $31,560 $62,589 Difference: $31,029 Equalization payment to Mr. Wulkowicz ($31,029. 2) $15,514.50 As the chart shows, Ms Murphy owed Mr. Wulkowicz $15,514.50 for his share of the real property and vehicles. The trial judge then needed to determine what amount Mr.Wulkowicz owed Ms. Murphy from the proceeds of the Chicago house. [25] While the judge was unable to calculate the value of Ms. Murphy’s credit from the Chicago proceeds, it fell somewhere between zero (according to Mr. Wulkowicz) and $25,250 U.S. (as noted by the judge using Ms. Murphy’s figures- $93,250 $68,000): 51 The wife submits that after debts were paid off and the Nova Scotia property purchased, there should have been approximately $186,500.00 U.S. left to be divided. She submits that she should have half of that, approximately $93,250.00 U.S. 52 She said that she received $60,000.00 U.S. from the sale proceeds, approximately one year after the closing. She agrees that an additional $8,000.00 U.S. was transferred to her account to look after household bills. [26] Ms. Murphy's equalization claim of $25,250 U.S. is equivalent to approximately $35,000 Cdn. The judge faced the following conflicting submissions: on one hand, Mr. Wulkowicz claimed the credit from the proceeds was $0, and on the other hand, Ms. Murphy claimed it was $35,000 Cdn. The trial judge was unable to come to conclusion on what the exact amount was, but he found it to be approximately what Ms. Murphy owed Mr. Wulkowicz for the real property and vehicles ($15,514.50). That amount, $15,514.50, is approximately half‑way between what Ms. Murphy was claiming was owed ($35,000), and what Mr. Wulkowicz was claiming was owed ($0). Faced with two conflicting claims, the judge committed no error in finding the amount owed for the proceeds was approximately half‑way between the two claims, and then setting it off against the amount owed to Mr. Wulkowicz for the real property and the vehicles. While his approach may appear somewhat arbitrary, this is sometimes necessary when it comes to dividing matrimonial assets. As Hallett, J.A. of this court observed in Gomez-Morales v. Gomez-Morales, [1990] N.S.J. No. 357; (1990) 1990 CanLII 2349 (NS CA), 100 N.S.R. (2d) 137, it comes down to question of fairness: ... This valuation of half the equity is therefore somewhat arbitrary and for those who will criticize this approach, all can say is that there is often little accounting precision on the division of assets between spouses. While one attempts to make the calculations with as much accuracy as possible, the basis of such calculations are generally estimates of value by experts. As consequence, even as general rule, court's division of property is, at best, an estimate of what is fair in the circumstances applying the criteria of the matrimonial property legislation. Furthermore, the courts are regularly called upon in assessing damages arising out of personal injuries or death to fix amounts involving numerous contingencies and there is no reason why the court should not do so in determining fair values in matrimonial property cases. [Emphasis added] [27] Finally on this issue, note that the judge did in fact take into account Ms. Murphy’s concerns about living next to Mr. Wulkowicz: 28 The husband has told this Court that he has developed love for the camp land and considers it to be his only home. find that the wife’s unhappiness with the husband’s proximity is not sufficient reason to deny him the opportunity to stay on that property. Having given the house property to the wife, find it fair that the husband should have the “camp” property, and so determine. [28] In short the judge made certain factual findings that supported his conclusion to award Mr. Wulkowicz the camp property. see no palpable or overriding error in this regard. The Receivables [29] At trial, Ms. Murphy maintained that the parties were owed two loans from family friends and that only Mr. Wulkowicz had the ability to seek repayment. They totalled $46,000. The judge rejected this claim and concluded that one was gift to family friend and that the other was joint loan that Ms. Murphy could also seek to collect. Thus he concluded that they were not assets for division. 37 The wife has testified that the husband has loaned money to two acquaintances and should be credited with the value of these loans as receivables. The greater of the two is in the amount of $40,000.00 U.S. given to one John Gubbins, friend of the husband’s. 38 The wife characterized the transaction as loan, which can only be collected by the husband. 39 The husband says that the money was given to pay the Chicago office rent for Gubbins, close friend and social activist lawyer, about 16 years ago. 40 He says that the money is gone; Gubbins, having given up his practice and moved away. He says that the wife was close friend of Mr. Gubbins’ spouse and knew that the rent was being paid by the husband. 41 accept the explanation of the husband and will not consider the amount receivable to the husband. 42 The second transaction was the loan of $6,000.00 U.S. to one John Umlauf, another friend of the husband’s. The husband agrees that this is loan and anticipates repayment, however he says it was loan made with the knowledge and consent of both he and the wife, and should be receivable divided equally between the parties. [30] Before us Ms. Murphy maintained that the judge’s reference to her being close friend to the debtor’s wife is not supported by the evidence. Instead this assertion formed part of Mr. Wulkowicz’s post trial submission which the judge expressly rejected. In her factum, Ms. Murphy develops the argument this way: 45 Concerning the Gubbins transaction, an essential part of the learned Trial Judge’s opinion was based on the fact that “the wife was close friend of Mr. Gubbins’ spouse and knew that the rent was being paid by the husband.” In fact, there is no testimony anywhere in the record that Appellant and Mrs. Gubbins were close friends. In fact, the only statement to this point is contained in Respondent’s Brief, in which he asserts that Gubbins’ wife “was [Appellant’s] best friend.” In addition to this being blatant untruth, it is interesting that Respondent never offered testimony on this point at trial, when he knew it would be challenged as the blatant untruth that it was, but waited until he could no longer be cross-examined to make factual statement totally unsupported by the evidentiary record, which the learned Trial Judge accepted as fact. [Emphasis added by the appellant] [31] cannot accept Ms. Murphy’s submissions on this point. The evidence establishes that both Mr. Wulkowicz and Ms. Murphy were friends of Mr. Gubbins: Martha Murphy, Direct Examination Q. The next thing is the accounts receivable. Let’s deal firstly with the loan to John [Gubbins?]. It’s showing an amount of $40,000 US. Can you explain the circumstances? A. John Gubbins was friend of ours, prominent attorney in Chicago. He had cash flow problems and needed to pay his rent and expenses. We happened to have some cash at that time and Bob just loaned it to John. [32] Further, the evidence supports the fact that Ms. Murphy according to Mr. Wulkowicz likely would have discussed this issue with Mr. Gubbins’ wife and that Mrs. Gubbins would have (erroneously) referred to the transaction as loan. Robert Wulkowicz, Cross-Examination Q. Well that’s my question, did you expect at that time that it would have been paid back? A. had never characterized it as loan, and the reason that Martha says it that way is because John Gubbins explained it to his wife as loan. [33] In this light, it is not palpable and overriding error for the judge to infer that Ms. Murphy was friend of Mrs. Gubbins and that she [Ms. Murphy] knew that the rent was being paid by the husband [Mr. Wulkowicz]. [34] In any event there was ample evidence for the judge to justify his conclusion that this transfer was gift and not loan. refer to the following evidence tendered by Mr. Wulkowicz: certainly told Martha, she certainly knew about it. It is none of her business what chose to do with my money then. We were not married. We were living together, but she had no right to my assets or even to any sense that she could direct me in the use of my assets. gave him that money. It was not loan. did it for specific reason. John Gubbins later went under, got disbarred, and lives in Wisconsin, which think is an ugly, ugly way, but certainly an understandable way about how bureaucracies deal with distressing intruders. [35] see no reversible error in these circumstances. The Appellant’s Personal Belongings [36] Both parties agree on one thing. Mr. Wulkowicz arranged to have their personal belongings stored in two large trailers and shipped to Nova Scotia. For the past several years the trailers have been locked and Mr. Wulkowicz has had the key. Before us Mr. Wulkowicz acknowledged Ms. Murphy’s right to access these items forthwith, although he asserted that they first had to be moved from her “home property” to his “camp property”. would direct that she be given immediate unconditional access. In other words, these trailers shall be unlocked while at their present location and Ms. Murphy shall be entitled to secure her personal belongings forthwith. Other Alleged Errors [37] Ms. Murphy asserts that the judge offered too much assistance to Mr. Wulkowicz as a self-represented litigant. I disagree. It is difficult for judge to conduct trial when one of the parties is self-represented. Two competing interests must be balanced. First the judge obviously cannot be an advocate for party. At the same time the trial must be run as efficiently and fairly as possible. This may require the judge to offer guidance to self-represented party. The appropriate balance falls within the judge’s discretion. See R. v. McGibbon (1988), 1988 CanLII 149 (ON CA), 45 C.C.C. (3d) 334 (Ont. C.A.). In this context I conclude that the judge in guiding Mr. Wulkowicz did no more than was necessary to ensure that the trial proceeded fairly and efficiently. The judge did not act as Mr. Wulkowicz’s advocate. [38] Finally Ms. Murphy submits that the judgment was filed beyond the six month deadline prescribed in s. 34(d) of the Judicature Act, R.S.N.S. (1989) c. 240. The judgment, dated September 4, 2003, was given within six months of March 4, 2003 when the final written submissions were filed. Section 34(d) therefore has no application. [39] Except for Ms. Murphy’s claim to access her personal belongings, I would dismiss her appeal. The Respondent’s Grounds of Appeal [40] As earlier noted, Mr. Wulkowicz points to no error on the part of the trial judge. He simply seeks relief because he feels mistreated by Ms. Murphy throughout the trial and appeal process. There is no merit to any of this. His claim for health care would fall under spousal support and that was never pleaded or appealed. His claim to the “acreage property” has no merit. For reasons already provided, the judge committed no reversible error in distributing the Nova Scotia land as he did. Finally his claim for an easement over Ms. Murphy’s “home property” was never before the trial judge for consideration. It is not properly before us. I would dismiss his appeal. DISPOSITION [41] Aside from a direction that Ms. Murphy be given immediate access to her personal belongings, I would dismiss both the appeal and the cross-appeal in the circumstances without costs. MacDonald, C.J.N.S. Concurred in: Freeman, J.A. Fichaud, J.A.

The parties separated shortly after relocating from the United States to Nova Scotia. As part of the divorce, the Supreme Court ordered a division of assets. Both parties appealed the asset division; in the process, both parties sought to introduce fresh evidence. The wife also questioned the level of assistance offered by the trial judge to the husband who was self-represented at trial. Appeal and cross-appeal dismissed with the exception that the wife is to be given immediate access to her personal belongings; both applications to introduce fresh evidence dismissed; on the sparse record before him, the trial judge did not err in his division of assets and did not offer the husband unwarranted assistance as a self- represented litigant. Faced with two competing claims as to the amount of the proceeds of sale, if any, of one of the parties' properties, the trial judge committed no error in finding the amount owed to be half-way between the two claims and then setting it off against the amount owed to the other party.

c_2005nsca147.txt

Editor’s Note: Corrigendum released March 19, 2010. Original judgment has been corrected with text of corrigendum appended. QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2009 SKQB 475 Date: 2009 12 08 Docket: QBCNJ No. of 2008 Judicial Centre: Regina BETWEEN: HER MAJESTY THE QUEEN and RYAN JOSEPH CAMERON SCOTT W. KADASH Counsel: John Stoesser for the Crown Douglas R. Andrews, Q.C. for Ryan Joseph Cameron Noah P. Evanchuk for Scott W. Kadash JUDGMENT GUNN J. December 8, 2009 [1] The accused entered a guilty plea to committing an assault causing bodily harm on Wallace Flood on August 27, 2006 contrary to s. 267(b) of the Criminal Code. [2] After the plea was entered on September 14, 2009 pre-sentence report was ordered and prepared in relation to each of the accused. written victim impact statement was filed by the Crown on behalf of Mr. Flood. At the time of sentencing letter was filed on behalf of each of the accused from their employer, Flynn Canada Ltd. In addition Certificate of Achievement from Metis Addictions Council and personal letter of reference was filed on behalf of Ryan Cameron. The Crown asserted that each of the accused had previous criminal record, but did not file these with the court, instead choosing to rely on the information contained in the pre-sentence reports in relation to each accused’s previous criminal history. Neither accused took any issue with the record as alleged. In addition the Crown filed as an exhibit on the sentencing some photographs taken of Mr. Flood following the incident in question. [3] Submissions were made on behalf of the Crown and by each of the accused through their counsel. have set out in some detail the information available to the court aside and apart from the submissions for reason. Some aspects of the assault are described in the pre-sentence reports and in Mr. Flood’s victim impact statement. These references to the events leading up to and comprising the assault have been obtained from both Mr. Flood and from the accused persons. The facts presented by Mr. Flood and those presented by each accused, do not accurately reflect the facts placed before the court by the Crown in its submissions on sentence and those facts accepted by each of the accused through their counsel. In the documents filed, Mr. Flood asserts that his injuries were greater than those presented by the Crown, and the accused have minimized their involvement and culpability for the offence. [4] In sentencing each of these accused persons, the court will rely only on the facts presented by the Crown and accepted by each of the accused in relation to the description of the assault itself and the participation of each accused in that assault, and in the injuries which are alleged to have been suffered by Mr. Flood as the victim of this assault. [5] Mr. Wallace Flood knew each of these accused prior to the assault. He had met Ryan Cameron on job site at some time prior and had no other real connection with Mr. Cameron. Scott Kadash had previously been involved in romantic relationship with Mr. Flood’s sister Crystal and the relationship had ended badly. As result there were bad feelings between Mr. Kadash and the Flood family. Mr. Cameron and Mr. Kadash were employed by the same company, Flynn Canada Ltd. [6] On the date in question, Mr. Flood had gone to his sister Crystal’s house in the afternoon to check on it as she was out of town. He was talking to her on the phone when he heard knock at the door. When he answered the door he was still on the phone with Crystal. Mr. Flood saw Mr. Cameron who asked where Crystal was. Mr. Flood offered the phone to Mr. Cameron who promptly hung up the phone. Mr. Flood then saw Mr. Kadash, who had been standing off to the side somewhat. Mr. Kadash stuck his foot in the door to stop Mr. Flood from closing it. [7] Crystal called back and Mr. Flood answered and told her that Mr. Cameron and Mr. Kadash were there. There was still some jostling going on at the front door and the phone was once again disconnected. Crystal called 911 so the police would go to her house. By the time the police arrived the accused were gone and Mr. Flood was there and was injured. [8] The reason for the visit was unclear, but there was some reference to Crystal owing some money to Mr. Cameron. And Mr. Kadash indicated he was upset about Mr. Flood ‘bad mouthing’ him around town. [9] The assault began when Mr. Cameron struck Mr. Flood in the head and stunned him. Mr. Flood indicated he was then pushed around by both of the accused and he fell over piece of furniture and into some glass which caused laceration on his arm and hand. [10] Mr. Flood fell to the floor and he curled up in protective way as both accused kicked and punched him while he was on the floor. It ended with Mr. Kadash pushing him to the floor and warning him not to make any complaints about this. Then the accused left. [11] When the police arrived they found Mr. Flood on the door step and he was “bloodied and dazed.” He gave them statement and then he went to hospital where his injuries were described as “minor”. The injuries asserted by the Crown and acknowledged by both accused are that Mr. Flood suffered lacerations to his face, head and arms and contusions to his face, head and upper body. All of these were described as minor injuries by the medical personnel. [12] Specifically, the Crown is not relying on the injuries described by Mr. Flood in his victim impact statement and those injuries are not admitted by the accused. [13] There does not appear to be any real explanation for the assault. Mr. Kadash offered an explanation to the police which is not accepted by the Crown. Mr. Cameron appears to have been tagging along with Mr. Kadash. And at this point both accused would simply suggest it was an act of stupidity on their part. THE PERSONAL CIRCUMSTANCES OF THE ACCUSED PERSONS [14] Neither accused person has any significant criminal record, and the Crown adopted the information set out in the pre-sentence reports and indicated it was not “stressing” the record. Mr. Kadash has one previous conviction for impaired driving in 2005. Mr. Cameron has one previous conviction as an adult for .08. The offence occurred in 1997, but was not dealt with in court until 2003. Mr. Cameron had six youth dispositions including theft, failing to stop at an accident, pointing firearm, misleading peace officer and further weapons offence. Mr. Cameron’s counsel indicated that all of these youth dispositions arose from one incident. [15] Mr. Cameron was born November 14, 1977. He was 29 years of age at the time of the offence. Mr. Cameron reports that his father was an alcoholic who physically abused him and his mother. His parents divorced when Mr. Cameron was about years of age and life improved somewhat for Mr. Cameron, as he remained with his mother until about the age of 15. At that point he left home because he did not want to finish school and he wanted to find employment. Mr. Cameron still has good relationship with his mother and he identifies her as his most significant and stable support. His mother and his brother were present in court to support him. [16] Mr. Cameron is currently single although he was previously in relationship and he has daughter from that relationship. He financially supports his daughter and he is involved in her life. [17] Mr. Cameron has some experience with alcohol and drug use. Although Mr. Cameron has one conviction related to the use of alcohol, he does not consider that he has any overall problems with the use of alcohol. However he also experimented with marihuana and oil beginning at about age 13. From the age of 14-25 he says he used marihuana and oil every day. He became addicted to crack/cocaine at the age of 25 and this continued until he was about 27 years old. Someone tried to shoot him causing him to realize that his drug use was serious problem. He attended the Metis Addictions Council of Saskatchewan, Inc. and completed 28 day program for his alcohol and drug use. This was completed May 4, 2006, approximately months prior to the commission of this offence. Mr. Cameron abstained from the use of drugs completely for while and now indicates he uses marihuana every other weekend, but he does not consider this to be problem. [18] Mr. Cameron has grade 11 education and is employed by Flynn Canada Ltd. as foreman in the Metal Division. Except for one month from October 5, 2009 to November 5, 2009 Mr. Cameron has been working there since 2006. Mr. Cameron was off for that one month on sick leave, suffering from chronic bronchitis and stress. [19] With the exception of the two years when he was addicted to crack/cocaine, Mr. Cameron has continuous work record from the age of 15 to the present. The Branch Administrator of Flynn Canada Ltd. prepared letter of reference for Mr. Cameron for the court proceedings in which he said that Mr. Cameron is great asset to their company. He reports that Mr. Cameron is valued and reliable employee, who arrives on time, works hard, takes whatever hours are available and who as foreman has job entailing considerable responsibility in the supervision of his crew. [20] Mr. Cameron has not spent any time in custody as result of this charge. He was released on bail on conditions that he keep the peace and be of good behaviour and that he not have contact with Mr. Kadash or the victim. [21] Mr. Kadash was born June 10, 1967 and is now 42 years of age. Mr. Kadash enjoyed stable home life as child. He is currently single with no dependents. He was previously in five year relationship with Mr. Flood’s sister Crystal. The relationship ended badly and there are still significant issues between Mr. Kadash and the Flood family. [22] Mr. Kadash reports no difficulties in the use of alcohol. He says it was not factor in the current offence and he has abstained from the use of any alcohol as condition of his release on bail on this charge. Mr. Kadash is not regular drug user, but reports he has experimented with marihuana and cocaine, but nothing in the past ten years. [23] Mr. Kadash has grade 12 education and he has been employed in the construction industry for 23 years. He is journeyman glass worker. He has been employed with Flynn Canada Ltd since 2005, owns his own home and earns approximately $60,000.00 per year. The Branch Administrator for Flynn Canada has filed letter of reference for Mr. Kadash in these proceedings. Mr. Kadash is identified as great asset to the company. As foreman he has the responsibility to oversee each project he is assigned to which includes: ensuring the safety and well being of his crew; keeping track of the payroll; completing all safety paperwork daily; meeting with general contractors and any other duties assigned. [24] Mr. Kadash spent five days in custody after his arrest on this charge and he was released on August 31, 2006 on number of conditions which include the following: keep the peace and be of good behaviour; report to the court when required to do so; report in person to the bail verification and supervision officer at times to be specified; reside at an approved residence or one approved by the bail verification officer; advise of any change of employment, education or contact with police officials; not travel beyond 60 k’s of his residence without prior written approval; abstain from the use or possession of alcohol or non-prescription drugs; not enter any premises where the primary function is the sale or consumption of alcohol; and non contact with Crystal and Wallace Flood. Mr. Kadash has complied with these conditions for over three years. THE IMPACT ON THE VICTIM [25] The following Criminal Code sections have relevance: 722(1)Victim Impact Statement For the purpose of determining the sentence to be imposed on an offender or whether the offender should be discharged pursuant to section 730 in respect of any offence, the court shall consider any statement that may have been prepared in accordance with subsection (2) of victim of the offence describing the harm done to, or loss suffered by, the victim arising from the commission of the offence. 724(3) Disputed facts Where there is dispute with respect to any fact that is relevant to the determination of sentence, (a) the court shall request that evidence be adduced as to the existence of the fact unless the court is satisfied that sufficient evidence was adduced at the trial; (b) the party wishing to rely on relevant fact, including fact contained in pre-sentence report, has the burden of proving it; (c) either party may cross-examine any witness called by the other party; (d) subject to paragraph (e), the court must be satisfied on balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence; and (e) the prosecutor must establish, by proof beyond reasonable doubt, the existence of any aggravating fact or any previous conviction by the offender. [26] Mr. Flood filed lengthy written victim impact statement with the court which as indicated earlier is not totally consistent with the version of the facts and the injuries suffered placed before the court by the Crown. In R. v. Gardiner (1982), 1982 CanLII 30 (SCC), 68 C.C.C. (2d) 477 (S.C.C.) Dickson, J. held that “facts which justify the sanction are no less important than the facts which justify the conviction” and that [c]rime and punishment are inextricably linked”. This passage was quoted with approval by Sharpe, J.A. in R. v. W. (V.), (2008), 2008 ONCA 55 (CanLII), 53 C.R. (6th) 355 at para 25. Justice Sharpe went on to say the following: ... This means at the sentencing stage, “the accused is not abruptly deprived of all procedural rights existing at trial: he has right to counsel, right to call evidence and cross-examine prosecution witnesses, right to give evidence himself and to address the court.” [27] Section 724(3) codifies Gardiner, supra. Justice Sharpe then said the following at paragraph 27 of R.v. W.(V.), supra: [27] Although victim impact statements are not specifically mentioned, can see no principled reason for excluding them from the reach of the general rule articulated in Dickson, J. in Gardiner or these procedural protections listed in s. 724(3). conclude, therefore that victim impact statements are admissible, pursuant to s. 722(1), but that their use is subject to the general provisions of s. 724(3). The Crown bears the burden of proving any disputed fact and the offender has the right to cross-examine on the evidence the Crown leads. [28] Accordingly will read Mr. Flood’s victim impact statement through the lens of Gardiner, supra and s. 724(3) of the Code. Mr. Flood reports that his life has been on hold since the date of the assault. He did not work for three months following this incident. He says his arm still bothers him and that he has scars. He no longer lives in Saskatchewan as he feels threatened. He feels he has lost three years of his life and has lost the companionship of his family as he does not feel safe in Saskatchewan. CROWN’S POSITION ON SENTENCE [29] The Crown submits that sentence of incarceration in an institution of up to two years less one day would be appropriate in the circumstances for Mr. Kadash. In making this submission the Crown relies on the fact that the assault took place at residence, albeit not that of the victim. It notes that there were two assailants beating the victim, and that there was some significant history involving the Flood family and Mr. Kadash. In terms of Mr. Cameron the Crown submits that sentence of eighteen months to two years less one day would be appropriate. In addition it seeks DNA order and firearms prohibition. The Crown did not make reference to any authority in support of its submission. DEFENCE SUBMISSION [30] The defence counsel submit that this offence is not one for which incarceration is appropriate, taking into consideration the facts of the offence, the severity of the injuries and the minor criminal records of the two accused. They submit that suspended sentence with conditions would be appropriate, or alternatively conditional sentence with conditions. [31] Section 718 of the Criminal Code sets out the purpose and principles of sentencing as follows: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. 718.1 sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 court that imposes sentence shall also take into consideration the following principles: ... (b) sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; ... (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. [32] It should perhaps be noted that conditional sentence is still available for this offence. The legislation has changed since the commission of this offence and pursuant to the current legislation, this would be categorized as ‘serious personal injury offence’ and conditional sentence would not be available. (See s. 741.1 and s. 752 Criminal Code) However pursuant to s. 11(i) of the Canadian Charter of Rights and Freedoms, Part of the Constitution Act, 1982, being Schedule to the Canada Act 1982 (U.K.), 1982, c. 11 (the “Charter”), the accused will have the benefit of the lesser punishment. [33] No reference was made by the Crown or the defence to any other cases to assist the court in assessing the issue of parity. [34] review of the recent decisions of the Saskatchewan Court of Appeal does not reflect any cases which appear to be directly on point. [35] In Q. v. Delorme (2008 SKCA (SentDig) 2, January 10, 2008) the accused was 43 years of age and was charged with physically abusing her children over six year period. The accused caught her son, then age 7-8, playing with matches and she held his hand over stove burner resulting in severe burns to his hand. Ms. Delorme was sentenced to total of 16 months on all charges, but 10 months on the assault causing bodily harm charge. The accused had no previous criminal record and her sentence appeal was dismissed. [36] In Q. v. Johns (2008 SKCA 20 (SentDig) (CanLII) May 15, 2008) the accused was 26 years of age with previous record of about 29 previous convictions. He was drinking with his uncle and they had disagreement. He sat on his uncle and struck him repeatedly with his fists and feet. He also threw tire rim at the victim and hit him with 4. The victim had significant injuries. The accused appealed his sentence of 20 months which had been imposed after joint submission and the appeal was dismissed. [37] In Q. v. Ross (2008 SKCA (SentDig) 44 December 9, 2008) the accused was 50 years old with significant record. He assaulted his employer when he was fired as result of using company vehicle for personal business. The accused and the victim had been for drink after work. The accused kicked the victim in the face and then punched him. He lost consciousness after falling to the ground. He required 19 stitches to close wound on his face and lost 25% of the vision in one eye. fine of $800.00 plus one year probation was imposed by the trial judge and the accused’s appeal from sentence was dismissed. MITIGATING AND AGGRAVATING FACTORS [38] Mr. Cameron has been employed consistently for all but two years since his fifteenth birthday. He is valued employee of his current employer. He is contributing member of society. He is father and has accepted his responsibility to be financial and emotional support for his daughter. He has had some difficulties in his life and has made some strides towards overcoming those difficulties as evidenced by his successful completion of his alcohol and drug abuse program. He has entered plea of guilty to this offence which is the first step in rehabilitation. He has the support of his family which is always very important. [39] The nature of the offence itself is aggravating. He participated in gratuitous violence without any real explanation for doing so. This occurred at home. Mr. Cameron has previous criminal record as an adult and as youth, even though this is not being stressed by the Crown. Mr. Cameron tended to minimize his responsibility in the pre-sentence report. And even though Mr. Cameron has had difficulties with drugs in the past, he candidly acknowledges that he uses illicit substances on regular basis at present. [40] Mr. Kadash is mature adult who has been employed in the construction industry for significant period of time and who currently holds responsible position. Mr. Kadash has no related record. He has been complying with strict bail conditions for over three years. He has entered plea of guilty to this offence which is the first tangible step towards rehabilitation. [41] The circumstances of the offence are aggravating. Mr. Kadash is the accused who has previous history with the Flood family and bears some responsibility for including Mr. Cameron in this feud. Mr. Kadash minimized his responsibility for his actions in the pre-sentence report, even though he did, through counsel, take responsibility in court. [42] The victim has been affected significantly by this crime. [43] Taking into consideration both the aggravating and the mitigating circumstances, the principles of sentencing, the facts, and the circumstances of the accused cannot conclude that incarceration in facility is an appropriate disposition in the circumstances. [44] In my view a fine plus a probation order with strict conditions can accomplish the principles of sentencing as quoted above. The principles of parity demand similar sentences in the circumstances. [45] sentence Ryan Cameron as follows: [46] I impose a fine of $1,500.00 plus I direct that you comply with the terms of a probation order for two years. direct that you are bound by the following conditions: 1. You shall keep the peace and be of good behaviour; 2. You shall appear before the court when required to do so by the court; 3. You shall notify your probation officer in advance of any change of name or address, and promptly notify your probation officer of any change of employment or occupation; 4. You shall report to probation officer within two working days after the making of the probation order and thereafter when required to do so by your probation officer and in the manner directed by your probation officer; 5. You shall remain in the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from your probation officer; 6. You shall provide 150 hours of community service over period of 18 months; 7. You shall not contact or communicate directly or indirectly with Wallace Flood or Crystal Flood except through member of the Law Society of Saskatchewan; 8. You shall not knowingly be within 500 meters of the place of residence or the place of employment or place of education of Wallace Flood or Crystal Flood; 9. You shall participate in any evaluation and any treatment recommended to you by your probation officer for anger management and/or alcohol and drug abuse. 10. For period of six months commencing today, you must reside at 18 2250 7th Avenue North, Regina, Saskatchewan unless you have written permission from your probation officer to live elsewhere. 11. Commencing December 8, 2009 you shall be confined to your residence from 8:00 p.m. each evening to 7:00 a.m. the next morning for period of six months, ending on June 8, 2010. [47] sentence Scott Kadash as follows: [48] impose fine of $1,500.00 plus direct that you comply with the terms of probation order for two years. direct that you are bound by the following conditions: 1. You shall keep the peace and be of good behaviour; 2. You shall appear before the court when required to do so by the court; 3. You shall notify your probation officer in advance of any change of name or address, and promptly notify your probation officer of any change of employment or occupation; 4. You shall report to probation officer within two working days after the making of the probation order and thereafter when required to do so by your probation officer and in the manner directed by your probation officer; 5. You shall remain in the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from your probation officer; 6. You shall provide 150 hours of community service over period of 18 months; 7. You shall not contact or communicate directly or indirectly with Wallace Flood or Crystal Flood except through member of the Law Society of Saskatchewan; 8. You shall not knowingly be within 500 meters of the place of residence or the place of employment or place of education of Wallace Flood or Crystal Flood; 9. You shall participate in any evaluation and any treatment recommended to you by your probation officer for anger management and/or alcohol and drug abuse. 10. For period of six months commencing today, you must reside at 2152 Halifax Street, Regina, Saskatchewan unless you have written permission from your probation officer to live elsewhere. 11. Commencing December 8, 2009 you shall be confined to your residence from 8:00 p.m. each evening to 7:00 a.m. the next morning for period of six months, ending on June 8, 2010. [49] direct that each accused receive copy of the probation order and that the accused receive the explanation set out in s. 732.1(5) of the Criminal Code. [50] In addition make an order for each accused pursuant to s. 109 of the Criminal Code. You are each prohibited from possessing any firearm, other than prohibited firearm or restricted firearm, and any cross-bow, restricted weapon, ammunition and explosive substance during the period that begins today and ends ten years from today; and any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. [51] make an order in relation to each accused pursuant to s. 487.051(4) of the Criminal Code and Form 5.041. make an order in Form 5.03 authorizing the taking from each accused the number of samples of bodily substances that is reasonably required for purpose of forensic DNA analysis. order that you appear on or before December 15, 2009 at the Regina City Police Station for the purpose of the taking of the bodily substances by means of the investigative procedures set out in ss. 487.06(1) of the Criminal Code. You are warned that failure to appear in accordance with this order may result in warrant being issued for your arrest. You are also warned that failure to appear, without reasonable excuse is an offence under the Act. [52] In addition to the sentences imposed am required to consider the imposition of victim fine surcharge. In all of the circumstances am of the view that as each of you are employed victim fine surcharge would be appropriate in the circumstances. order each of you to pay victim fine surcharge of $225.00. [53] The time in default of payment of the fine will be calculated in accordance with s. 734 of the Criminal Code. [54] The fine and the victim fine surcharge shall be paid to the Local Registrar’s Office, Court of Queen’s Bench on or before June 8, 2010. [55] direct my clerk to explain the provisions of s. 734 s. 734.8 and s. 736 to the accused. E. J. Gunn QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2009 SKQB 475 Date: 2010 03 19 Docket: QBCNJ No. of 2008 Judicial Centre: Regina BETWEEN: HER MAJESTY THE QUEEN and RYAN JOSEPH CAMERON SCOTT W. KADASH Counsel: John Stoesser for the Crown Douglas R. Andrews, Q.C. for Ryan Joseph Cameron Noah P. Evanchuk for Scott W. Kadash March 19, 2010 CORRIGENDUM GUNN J. to JUDGMENT of December 8, 2009 (2009 SKQB 475) [56] The citations for the cases referred to in paragraphs 35-37 of the judgment should indicate the cases were reported in the Sentencing Digest.

The two accused entered a guilty plea to committing an assault causing bodily harm contrary to s. 267(b) of the Criminal Code. HELD: A fine plus a probation order with strict condition can accomplish the principles of sentencing. Each accused is fined $1,500 with a probation order for two years. Corrigendum received dated March 19, 2010 and added to fulltext.

7_2009skqb475.txt

2000 SKQB 579 Q.B.G. A.D. 1999 No. 2019 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: 598772 SASKATCHEWAN LTD. and HARMON INTERNATIONAL INDUSTRIES INC. DEFENDANT G.A. Richards for the plaintiff D.G. Gerecke for the defendant FIAT D.H. WRIGHT J. December 15, 2000 [1] 598772 Saskatchewan Ltd. applies for relief pursuant to s. 81(1) of The Queen’s Bench Act, 1998, S.S. 1998, c. Q-1.01. That allows this Court to direct that a judgment will be paid by instalments and/or over a period of time where it is demonstrated that the judgment debtor requires such relief. [2] The applicant proposed to the respondent that it repay the judgment recovered by the latter as follows: Beginning balance, as per judgment: 122,601.36 October interest 520.64 123,122.00 Awarded costs 7,572.50 Balance October 31, 2000 130,694.50 November 1, 2000 payment 32,894.50 97,800.00 November interest 401.92 December interest 415.32 Balance December 31, 2000 98,617.23 January 1, 2001 payment 33,117.23 65,500.00 January interest 278.15 February interest 251.23 Balance February 28, 2001 66,029.38 March 1, 2001 payment 33,529.38 32,500.00 March interest 138.01 April interest 133.56 Balance April 30, 2001 32,771.58 May 1, 2001 payment 32,771.58 Balance May 1, 2001 0.00 [3] The respondent objects strenuously pointing out that the applicant had plenty of opportunity over the years to pay its obligation and also drawing attention to number of allegations made in Mr. Tait’s affidavits and elsewhere suggesting that the officers of the applicant mismanaged the affairs of the company or re-directed funds which should have been allocated to payment of the interest which is the subject matter of the judgment finally granted. [4] After reviewing all of the circumstances and the relatively short time in which it is proposed the judgment be satisfied I have concluded, somewhat reluctantly, that I should grant the order. It will be granted on the basis outlined in the proposed settlement commencing with a payment to be made within seven days which would have been paid November 1, 2000. The remaining payments set out in the schedule will follow thereafter continuing with January 1, 2001. [5] An officer of the applicant swore that the officers were prepared to infuse $100,000.00 into the company’s treasury if need be to make up any shortfall from funds needed by the company to pay the instalments. In the absence of formal commitment on their part to do so, cannot take that into consideration. [6] Counsel should prepare an order immediately and submit it to me for approval. As indicated it will provide for the instalments suggested in the schedule but with the following changes:- the rate of interest to be paid on the judgment commencing January 1, 2001 should be equivalent to pre-judgment interest and should continue until the judgment is satisfied in full. This will replace the statutory rate of interest provided for under the Interest Act, R.S.C. 1985, c. I-15. [7] The judgment will provide also for a 5-day grace period and will also provide that in the event any instalment is missed after the passage of the grace period the respondent will be entitled to proceed immediately with enforcement by way of execution, garnishment or any other means it deems appropriate. [8] The cost of this application will be taxed and added to the judgment and will constitute part of the balance to be paid on May 1, 2001. [9] Counsel may apply to me for further directions if need be to see that this matter is dealt with promptly.

FIAT. The numbered company applied for relief pursuant to the Queen's Bench Act s.81(1) allowing the court to direct the judgment to be paid by installments. The creditor objected that the applicant had plenty of opportunity over the years to pay and drew attention to prior allegations of mismanagement or redirection of funds which should have been allocated to the payment of interest. HELD: The payment which should have been paid in November was to be paid within 7 days. The remaining payments set out in the schedule will commence January 2001 with the change in rate of interest from that provided under the Interest Act to one equivalent to pre-judgment interest. A 5 day grace period was allowed after which the respondent was allowed to proceed immediately with enforcement by execution, garnishment or any means it deems appropriate. The taxed cost of this application was added to the judgment and will be part of the balance to be paid on May 1, 2001. Counsel could apply for further directions.

3_2000skqb579.txt

nan CANADA S.K. No. 2364 PROVINCE OF NOVA SCOTIA IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: FARM CREDIT CORPORATION, body corporate and W. BRUCE GILLIS, Barrister and Solicitor nan HEARD BEFORE: The Honourable Mr. Justice K. P. Richard PLACE HEARD: Halifax, Nova Scotia DATES HEARD: December 4, 5, 1989 DECISION DATE: December 5, 1989 COUNSEL: Walter O. Newton, Q.C. and Steven Enman for the Plaintiff Harry E. Wrathall, Q.C. and Alex Cameron for the Defendant CANADA S.K. No. 2364 PROVINCE OF NOVA SCOTIA IN THE SUPREME COURT OF NOVA SCOTIA TRIAL BETWEEN: FARM CREDIT CORPORATION, body corporate and W. BRUCE GILLIS, Barrister and Solicitor Defendant Richard, J. (orally): This is an action by Farm Credit Corporation (FCC) against the defendant, W. Bruce Gillis, a barrister and solicitor practising in Middleton, Nova Scotia. Basically, it is a claim in professional negligence against Mr. Gillis for the losses sustained by FCC as a result of the alleged negligence of Gillis. The matter originated in the late fall of 1978 when the mortgagors, Paul and Eric Langille, farmers in the Middleton area, negotiated loan to be secured by mortgage on real estate known as the "Phinney farm". By letter of December 5, FCC confirmed that funds would be available to the Langilles. One of the conditions in paragraph of the letter states: "That you are willing to supply the Corporation with valid milk assignment to repay your mortgage loan on monthly basis. The exact amount of the monthly payments shall be determined at the time the loan is disbursed and you shall be advised of the amount required." In addition to that letter, there was also loan offer in which certain other stipulations were made respecting the security for the loan. One such condition was contained in clause D. "SPECIAL INSTRUCTIONS" "Fluid milk quota clause required in the amount of 1237 litres/day." By copy of the covering letter the Langille brothers purportedly accepted the terms and returned the letter dated December 12, 1978 which is stamped as received by FCC on December 18, 1978. Mr. Gillis had been engaged by the Langilles over the years as their solicitor and he continued his engagement with respect to this transaction. His letter of December 22, 1978 addressed to FCC indicates fairly complete understanding of the matter as well as his instructions to act for the Langilles on their behalf in this transaction. The matter then laid dormant until the 1st of April. On April 3, 1979 D.C. Rogers, Atlantic Assistant Regional Manager of FCC, wrote to their legal agent in the area, R. MacLeod Rogers, with instructions to disburse funds in accordance with the terms of the mortgage loan. In the instructions Mr. Rogers stated in part: "Would you please carry out sub‑search on this account before releasing the cheque to the Langilles and the Bank. Also have the borrower sign the attached Dairy Order and have their signatures witnessed and return both copies to the Corporation,” Enclosed was the dairy order directed to Twin City Dairies with blank space to be signed by Paul and Eric Langille. Following the receipt of that by solicitor R. MacLeod Rogers he sent letter to Gillis, the defendant, in which he states in part: "Please find enclosed herewith cheque from Farm Credit Corporation payable to the Imperial Bank of Commerce to pay out the Bank mortgage. Would you please disburse this cheque, after insuring on behalf of Farm Credit Corporation that the fire insurance is in order on the property. Would you also arrange with the Langilles to sign the enclosed Dairy Order in triplicate and return all copies to me, as soon as possible." The evidence is clear that Mr. Gillis was persuaded by one or the other or both of the Langilles that stipulation No. in the letter of December was no longer in effect because of the new deal which had been worked out between the Langilles and FCC. There is no doubt in my mind that Gillis was lulled into false sense of security by these representations. He disbursed the funds without having first had the dairy order executed by the Langilles. It matters not what assurances the Langilles gave to Mr. Gillis. He had clear and explicit instructions from his principal, R. MacLeod Rogers, to have the dairy orders executed. have no problem finding that Mr. Gillis was negligent and in breach of the trust imposed upon him by R. MacLeod Rogers when he disbursed the funds without having first received the signed dairy orders. In response to Mr. R. MacLeod Rogers, Mr. Gillis wrote on May indicating certain questions with respect to insurance. There was no mention at that time of the dairy order or any agreement that the Langilles had indicated had been concluded between them and FCC. MacLeod Rogers on June 27 sent to FCC what purported to be his final report on this matter in which he enclosed number of documents. Conspicuous by its absence was the dairy order. There are handwritten notes by FCC people indicating that these had not been received and they were strong enough in their opinion that they were prepared to withhold legal fees until such time as the agreements were received. This was confirmed to R. MacLeod Rogers by letter from D.C. Rogers of July 4, 1979. Mr. Gillis on July 9th, presumably after meeting or conversation with R. MacLeod Rogers, indicated that the Langilles had advised him that the dairy orders were no longer required. Following this on July 17, 1979, Mr. R. G. Aumell, Atlantic Region Manager for FCC, wrote to the Langilles indicating the amount outstanding at the time and also requesting payment of the arrears and the signed dairy order. further letter was written to Mr. R. MacLeod Rogers in which it was still the FCC position that the dairy order was required as part of the security for this loan package. On August 14, 1979, Eric and Paul Langille wrote to Farm Credit Corporation protesting that they did not have to submit the dairy orders because of other arrangements which had been made. It is not clear what other arrangements had been made but he did indicate in this letter that the initial conditions outlined were changed somewhat. In direct response to this is the letter of August 28, 1979 from FCC to the Langille brothers and it starts: "This will acknowledge your letter of August 14, 1979 regarding payment arrangements on your loan." And then, down two paragraphs, is the following statement: "Instead of monthly payments, as we had hoped for, we will now follow the payment arrangements as outlined in the loan offer you mentioned."(emphasis added) The loan offer mentioned is obviously the semi‑annual payment schedule set out in the original loan offer which accompanied the letter of December 5th. The contents of the August 28, 1979 letter was confirmed to R. MacLeod Rogers by telephone conversation and subsequently by letter of September 6th in which Mr. D.C. Rogers stated in part: "As mentioned to you on the phone, the Corporation does not intend to take this any further and have written the Langilles accordingly. We are disappointed that this error came about and we leave it up to you to advise Mr. Gillis as you see fit, in the hopes that this error will not be repeated in the future in connection with our accounts." By letter of September 6, R. MacLeod Rogers wrote to the Farm Credit Corporation. On September 11th R. MacLeod Rogers wrote to Gillis, the defendant, which reads in part: "I enclose copy of letter which have just received from Farm Credit in Moncton indicating that they are not going to proceed any further with respect to the breach of their and my instructions.” Presumably the letter that was sent along with that was the letter of September 6th. At this point new deal was made between the Farm Credit Corporation and the Langilles. The Farm Credit Corporation was no longer insisting on the execution of the dairy order. accept the argument of counsel for the defendant in that this forgiveness or alteration of the deal ended the matter insofar as Mr. Gillis was concerned. As a result, I am firmly of the view that the plaintiffs were then, and are now, estopped from exercising any of their rights against Gillis or R. MacLeod Rogers under the original instructions. Even if had found otherwise, it is clear from the correspondence that the damages at that time were slightly over $7,000.00. These arrears had been subsequently paid by the Langilles. There is no evidence that FCC suffered any losses during the time that the instructions respecting the dairy order were still subsisting. At the risk of being flip, must say that there are so many grounds upon which the plaintiff's action could be dismissed in this matter that am just choosing the most obvious one. am not dealing with the question of laches although there is merit in the argument of defendant's counsel on that point. To determine this case need not go beyond the doctrine of estoppel as annunciated by Lord Denning in Combe v. Combe, [1951] nan All E.R. 767. The following oft quoted passage from that case is particularly appropriate in the present circumstances: "The principle, as understand it, is that where one party has, by his words or conduct, made to the other promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the one who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relations as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he himself has so introduced, even though it is not supported in point of law by any consideration, but only by his word. (p. 770)." Even though Gillis in this case was not party he was the legal agent, through R. MacLeod Rogers, for this specific transaction. He must therefore be in the same position as the principal insofar as liability in this transaction. The doctrine of estoppel is doctrine of fairness. It would be patently unfair for FCC to lull Gillis into sense of security by renegotiating the deal with the Langilles and then, several years later, hold Gillis responsible under the original deal. Quite apart from the question of estoppel there are other circumstances which militate against FCC in this case. Between the time the mortgage deal was made in 1979 and the foreclosure action several things occurred. FCC renegotiated new security for the mortgage and gave up the original security. There is serious question that some of the surrendered security was of substantially greater value than that taken up. These actions were taken without any regard to the impact on the legal rights of Gillis. Then there is the matter of FCC making deal with the Langilles to settle the foreclosure action on terms which may have effected Gillis' position vis vis the mortgage security of FCC. The effect of these transactions on the bankruptcy proceedings against the Langilles could also bear on the question of prejudice to Gillis. These matters need not be dealt with since have decided the case in favour of Gillis on the basis of estoppel as already discussed. The plaintiff's action is dismissed with costs to the defendant to be taxed. Judament accordingly. J. Halifax, Nova Scotia December 5, 1989 1. INTRODUCTION 2. NATURE OF CLAIMS 4. BACKGROUND FACTS (a) General (b) Medical (c) The Boat Repair Business (d) The Service Station Business 14 5. MR. WEBSTER'S INJURIES AND THEIR EFFECTS (a) The Websters' Evidence 16 (b) Peter Drillio's observation of Webster after the accident 29 6. MEDICAL ASSESSMENT OF MR. WEBSTER (a) Dr. G. J. H. Colwell 32 (b) Dr. W. D. Stanish 39 (c) Dr. R. H. Yabsley 46 (d) Dr. Edwin Rosenberg 55 7. FINDINGS ON MEDICAL INJURIES 59 (a) Mr. Cherry's Analysis 62 b) Applicable Considerations on Quantum 75 (i) Non‑pecuniary Damages 79 (ii) Pre‑trial Loss of Earnings and Profits83 (iii) Prospective Loss of Earnings and Profits 83 (iv) Other Special Damages 86 (v) Pre‑judgment Interest 86

55/45. In an action for professional negligence against a solicitor for failing to obtain specific security requested in written instructions, the plaintiff renegotiated the deal and no longer insisted upon receiving the specific security. That the plaintiff was estopped from exercising any rights against the solicitor under the original instructions.

e_1989canlii1475.txt

J. SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Pellicer v. Williams 2012 NSSC 359 Date: 20121019 Docket: 1201-063597 Registry: Halifax Between: Rocio (Williams) Pellicer and Paul Edward Williams Respondent LIBRARY HEADING Judge: The Honourable Associate Chief Justice Lawrence I. O’Neil Submissions: Written Submissions on costs were received on August 22, 2012 Issues: Whether costs should be awarded following separate custody and child support hearings on October 25, 2011 and June 20, 2012 respectively. An oral decision on October 27, 2011 followed the October 25, 2011 hearing. written decision followed the June 20, 2011 hearing on child support. The later decision is reported at 2012 NSSC 267 (CanLII). Summary: The Court concluded the Respondent should pay costs of $3,000 Keywords: Costs; custody and child support Legislation: Costs and Fees Act, R.S.N.S., 1989, c.104 and Rule 77 Cases Considered: L.(N.D.) v. L.(M.S.), 2010 NSSC 159 (CanLII) Robar v. Arseneau, 2010 NSSC 175 (CanLII) R.(A.) v. R.(G.), 2010 NSSC 377 (CanLII) Shurson v. Shurson, 2011 NSSC 344 (CanLII) THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Pellicer v. Williams, 2012 NSSC 359 Date: 20121019 Docket: 1201-063597 Registry: Halifax Between: Rocio (Williams) Pellicer and Paul Edward Williams Respondent Judge: The Honourable Associate Chief Justice Lawrence I. O’Neil Submissions: Written Submissions on costs were received from Ms. Rocio (Williams) Pellicer, counsel only Related Decision(s): 2012 NSSC 267 (CanLII) Counsel: Janet M. Stevenson, for the Applicant Paul E. Williams, Self Represented By the Court: Background [1] This is a costs decision. The parties litigated the apportionment of custody and access rights and the quantification of child support and special expenses for their two children. [2] An oral decision on October 27, 2011 followed custody/access hearing on October 25, 2011. written decision followed the June 20, 2012 hearing on child support. This later decision is reported at 2012 NSSC 267 (CanLII). 1. If the court is to make costs award, what is the appropriate order? General Principles Governing Costs [4] The new Rule on costs is Rule 77. It contains the tariffs when applying an amount involved assessment to determine costs payable by party. Justice Dellapinna, in Tamlyn v. Wilcox, 2010 NSSC 363 (CanLII), 2010 NSSC 363, reviewed the transition from the 1972 Rules to the new Rules. His commentary is helpful guide in tracing the changes. [5] Justice B. MacDonald of this court summarized the applicable principles to apply when determining an appropriate costs award in L. (N.D.) v. L. (M.S.), 2010 NSSC 159 (CanLII), 2010 NSSC 159. She stated the following at paragraph 3: 3. Several principles emerge from the Rules and the case law. 1. Costs are in the discretion of the Court. 2. successful party is generally entitled to cost award. 3. decision not to award costs must be for "very good reason" and be based on principle. 4. Deference to the best interests of child, misconduct, oppressive and vexatious conduct, misuse of the court's time, unnecessarily increasing costs to party, and failure to disclose information may justify decision not to award costs to otherwise successful party or to reduce cost award. 5. The amount of party and party cost award should "represent substantial contribution towards the parties' reasonable expenses in presenting or defending the proceeding, but should not amount to complete indemnity". 6. The ability of party to pay cost award is factor that can be considered; but as noted by Judge Dyer in M.C.Q. v. P.L.T. 2005 NSFC 27 (CanLII), 2005 NSFC 27: "Courts are also mindful that some litigants may consciously drag out court cases at little or no actual cost to themselves (because of public or third‑party funding) but at large expense to others who must "pay their own way". In such cases, fairness may dictate that the successful party's recovery of costs not be thwarted by later pleas of inability to pay. [See Muir v. Lipon, 2004 BCSC 65 (CanLII), 2004 BCSC 65]." 7. The tariff of costs and fees is the first guide used by the Court in determining the appropriate quantum of the cost award. 8. In the first analysis the "amount involved", required for the application of the tariffs and for the general consideration of quantum, is the dollar amount awarded to the successful party at trial. If the trial did not involve money amount other factors apply. The nature of matrimonial proceedings may complicate or preclude the determination of the "amount involved". 9. When determining the "amount involved" proves difficult or impossible the court may use "rule of thumb" by equating each day of trial to an amount of $20,000 in order to determine the "amount involved". 10. If the award determined by the tariff does not represent substantial contribution towards the parties' reasonable expenses "it is preferable not to increase artificially the "amount involved", but rather, to award lump sum". However, departure from the tariff should be infrequent. 11. In determining what are "reasonable expenses", the fees billed to successful party may be considered but this is only one factor among many to be reviewed. 12. When offers to settle have been exchanged, consider the provisions of the civil procedure rules in relation to offers and also examine the reasonableness of the offer compared to the parties position at trial and the ultimate decision of the court. [6] Justice Gass, in Pelrine v. Pelrine, 2007 NSSC 123 (CanLII), 2007 NSSC 123, decision of this court dated April 18, 2007, considered the issue of costs claimed by both parties, following divorce proceeding which was heard over four days. Post‑trial submissions were filed. The petitioner sought approximately $11,000.00 in costs, including HST and disbursements, and the respondent sought approximately $9,000.00 plus disbursements of approximately $3,600.00. [7] Of particular interest is that Justice Gass found failure to timely disclose on the part of the petitioner. She also assessed the relative “success” of the parties and the presence or absence of offers to settle. Justice Gass ordered costs to the respondent in the amount of $3,031.00 plus $2,000.00 towards disbursements. [8] In Robar v. Arseneau, 2010 NSSC 175 (CanLII), 2010 NSSC 175, ordered costs of $5,138.00 inclusive of HST and disbursements to be paid at rate of $150.00 per month. In that case, the applicant’s case to set aside the parties’ separation agreement was dismissed and Ms. Robar was found to have been unreasonable. She was also found to have rejected offers to settle. The matter required court time on two days. applied scale of Tariff “A.” The amount involved was within the $40,001.00 ‑$65,000.00 range. Ms. Robar was subject to significant financial hardship at the time. This was factor weighing against higher costs award. [9] The case of Provost v. Marsden, 2009 NSSC 365 (CanLII) involved an assessment of child support obligations. applied Tariff “A”, there being decision following half‑day hearing. The amount involved was in the $40,001.00 $65,000.00 range. Success on the issues was mixed but Mr. Marsden was found to have been the more successful party. This case also involved an offer to settle. Costs totalling $3,000.00 inclusive of HST and disbursements were ordered (2010 NSSC 423 (CanLII)). [10] The case of R. (A.) v. R.(G.), 2010 NSSC 377 (CanLII) resulted in costs award of $3,000.00 inclusive of HST and disbursements. The hearing concerned the parenting arrangement for the parties’ two children. The conduct of the applicant was found to have been aggravating. The amount involved was $20,000.00 this representing the amount involved when full day of court time is consumed (2010 NSSC 424 (cost decision) (CanLII). [11] In Burchill v. Savoie, 2011 NSSC 163 (CanLII), ordered costs of $35,000 inclusive of taxes and disbursements. [12] In Shurson v. Shurson, 2011 NSSC 344 (CanLII), ordered the parties to pay their own costs given the mixed success of the parties. [13] Justice Jollimore, in Peraud Peraud, 2011 NSSC 80 (CanLII), 2011 NSSC 80, reviewed the law governing when litigant may be permitted to deduct legal expenses from total income for income tax purposes. At paragraph19, she wrote: [19] The amount of fees, disbursements and taxes billed to party are not necessarily the same as the amount the party pays when the expenses are incurred in matters relating to support. The Income Tax Act, R.S.C. 1985 (5th Supp), c. 1, s. 18, allows that legal and accounting fees may be deducted from total income to determine taxable income. Canada Revenue Agency's Income Tax Technical News Release Number 24 of October 10, 2002 changed the terms of the Agency's Interpretation Bulletin IT‑99R5: Legal and Accounting Fees, making it possible for party to deduct expenses incurred to obtain spousal support under the Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, the Maintenance and Custody Act, R.S.N.S. 1989, c. 160 and other similar provincial legislation across Canada. If litigant is able to deduct legal expenses from total income, the resulting reduction in total income serves to diminish the litigant's tax bill. [14] Arriving at costs assessment in matrimonial matters is difficult given the often mixed outcome and the need to consider the impact of an onerous costs award on families and children in particular. The need for the court to exercise its discretion and to move away from strict application of the Tariffs is often present. Position of the Parties [15] Ms. Williams’ counsel seeks an award of costs valued at $3,000 based on an application of Scale of Tariff “A” of the Costs and Fees Act, R.S.N.S. 1989, c.104. Ms. Williams argues that no costs should be awarded to either party. [16] Should deem the award of costs warranted, as mandated by Rule 77.06, party and party costs should be fixed in accordance with the tariffs. am satisfied that Scale of Tariff “A” of the Costs and Fees Act, supra is the governing tariff for the purpose of determining an appropriate costs award. The tariff is reproduced following Rule 77.18. [17] This proceeding required Court time on two days and additional chambers time when the Court was required to resolve disagreements between the parties. assigned an additional one half day of Court time to this aspect of the case. [18] The Applicant, Ms. Williams was the successful party. [19] On the important parenting issue, the evidence established that the Applicant was the appropriate primary care parent. [20] Mr. Williams’ initiative in seeking to vary the existing order was not reasonable and responsible. [21] The assessment of child support was central issue. Again, Ms. Williams clearly prevailed. Income was imputed to Mr. Williams by the Court. Mr. Williams did not persuade the Court to reduce his child support obligation. It is my conclusion that Mr. Williams’s submissions needlessly resulted in the expenditure of time and effort by all involved and delayed the issuance of an order herein. In the end, the Court imputed an income level to Mr. Williams that Ms. Pellicer was prepared to accept prior to the commencement of the hearing ($25,000). [22] Costs of $3,000 are assessed against Mr. Williams. They are payable at rate of $150 per month until paid in full, commencing December 1, 2012.

Rule 77.01 – Scope of Rule 77 This is a costs decision following litigation between the mother and father regarding apportionment of custody and access rights, quantification of child support and special expenses for the parties' children. The mother was the successful party and income was imputed by the court to the respondent. Held, costs in the amount of $3,000 are awarded against the father. The father's position caused unnecessary time, effort and delay. The court referenced L. (N.D.) v. L. (M.S.) (2010) to summarize the principles and case law relevant to determining a cost award under Rule 77. Determining costs in a matrimonial manner is more complex given mixed outcomes and the burden of costs placed on families and children such that the court may need to exercise discretion and move away from a strict application on tariffs.

2_2012nssc359.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2010 SKQB 402 Date: 2010 10 27 Docket: Q.B. 3159 of 1999 Judicial Centre: Regina BETWEEN: McDIARMID LUMBER LTD. PLAINTIFF (RESPONDENT) and OCHAPOWACE FIRST NATION DEFENDANT (APPLICANT) Counsel: Philip J. Gallet for the plaintiff (respondent) Mervin C. Phillips for the defendant (applicant) JUDGMENT ZARZECZNY J. October 27, 2010 THE APPLICATION [1] The defendant, Ochapowace First Nation (“Ochapowace”), applies for the dismissal of the plaintiff’s claim for want of prosecution pursuant to the inherent powers of the court. The respondent, McDiarmid Lumber Ltd. (“McDiarmid”) responds through its counsel that it now has every intention to diligently proceed with its action. [2] McDiarmid’s claim in this matter was issued November 1, 1999. It is claim based in debt for goods and services provided to Ochapowace in relation to the construction of portable classrooms, 10 housing units and the purchase of mobile homes. The indebtedness claimed owing is $521,283.89. Contracts are claimed to exist for the provision of these materials, services and products in 1995 and 1996, some 15 years ago. [3] Ochapowace’s defence was filed November 12, 1999 and an amended defence June 21, 2002. The defences basically consist of general denials of liability and challenges to the quality of goods and services provided by McDiarmid. More recently, the amended defence claims that settlement involving the payment by Ochapowace to McDiarmid of $100,000.00 had been reached pursuant to which Ochapowace had paid $40,000.00 with $60,000.00 remaining due and owing. [4] Mediation was concluded in February of 2000. [5] On July 25, 2000, counsel for McDiarmid filed motion seeking to appoint Mr. Laird Allary, “...servant and Band Councillor of the Defendant” as the proper person to be examined on behalf of Ochapowace. Paragraph of the motion setting out the grounds for the order sought states: 5. The Defendant is an Indian Band within the meaning of The Indian Act and the said Laird Allary is Councilor of the said Defendant who has the greatest personal knowledge of the matters and facts which are at issue in this litigation; [6] In ground of the motion, the plaintiff states: 7. The Plaintiff is unable to obtain the information from other persons as there are no persons the Plaintiff is entitled to examine without the requested Order; [7] In the affidavit of Robert Chartier, sworn July 10, 2000 in support of the motion, Mr. Chartier deposes in paragraph 5: 5. The person the Plaintiff wishes to discover is Laird Allary. He is Band member and Counsel [sic] member of the Defendant. He is also responsible for housing on the Defendant’s reserve and was the individual involved in the negotiations and day to day discussions between the Defendant and the Plaintiff. ... [8] authorized the issue of consent order dated August 3, 2000 appointing Laird Allary as the appropriate representative of Ochapowace to be examined for discovery on behalf of the defendant. [9] An appointment was required to be issued for Mr. Allary’s examination in January of 2002. consent order issued permitting the amendment to the statement of defence to plead the settlement previously mentioned. Supporting the motion for amendment was an affidavit filed on behalf of Petra Bellanger claiming to be “an officer of the Ochapowace Band” and reciting her participation in the settlement negotiations with McDiarmid. Band Council approving the alleged settlement was passed. [10] Apparently, notwithstanding the court’s order for the appointment of Laird Allary as the appropriate person to be examined on behalf of Ochapowace, Petra Bellanger appears to have been substituted, presumably by agreement of the parties, and her examination for discovery was held on June 25, 2002. In May of 2003, the plaintiff brought an application to strike the defence alleging failure to comply with undertakings and in August, 2003, the defence brought an application to strike the plaintiff’s claim for failure on its part to reply to undertakings given at the examination for discovery of its officer. Consent orders were issued addressing each of these applications. [11] It is at this juncture that the file became dormant. Neither time nor circumstances similarly stood still. [12] Chief Denton George, the Ochapowace Band Chief throughout the whole of the time that Ochapowace had dealings with McDiarmid, died on August 16, 2009. In the spring and early summer of that year, counsel for Ochapowace wrote counsel for McDiarmid advising that Laird Allary had been diagnosed with and was undergoing treatment for serious illness and that he would be unavailable “unless the action was prosecuted by the plaintiff immediately”. The written notice given to the plaintiff on June 24, 2009 by counsel for Ochapowace to counsel for McDiarmid advised, in part: ... We confirm our advice this morning, the principle witness for Ochapowace, Laird Allary, is seriously ill and expected not to survive. The prejudice therefore will be significant at the trial of this action. ... Mr. Allary died September 25, 2009. [13] In an apparent attempt to support his application now made for dismissal of the action, counsel for Ochapowace, in June, 2010 (some almost one year subsequent to Mr. Allary’s passing), solicited responses to the further undertakings given in the examination of Walter Guylas (the designated representative of McDiarmid) held November 30, 2004. Counsel advised that unless responses were received, an application for dismissal of the action for want of prosecution would be taken. Nothing further developed in the next ensuing two months until this application was filed on August 19, 2010 seeking dismissal of the action for want of prosecution, failure to complete undertakings or alternatively for an order compelling delivery of the sought after undertakings. [14] In the further alternative, the defendant seeks an order for the return by McDiarmid to Ochapowace of the $40,000.00 Ochapowace had paid towards the settlement claimed to have been made, $10,000.00 of which was paid July 5, 2001 and $30,000.00 December 31, 2001, some nine years ago. These applications for dismissal and the alternate relief claimed are supported once again by the affidavit of Petra Bellanger. She deposes in her affidavit that the death of Chief Denton George and Laird Allary have significantly prejudiced Ochapowace’s ability to defend. In para. 6, she states: 6. THAT as result of the deaths of Chief Denton George and Laird Allary, Ochapowace First Nation has been deprived of the ability to adequately defend itself because the only two persons with direct involvement in the events have died. [15] The issues to be determined upon this application are the following: 1. Whether or not the defendant’s application to dismiss the plaintiff’s claim for want of prosecution should be granted in the circumstances; 2. Whether, if the action is not dismissed as applied for, an order should issue requiring compliance with the undertakings given and remaining outstanding from the examination for discovery of Walter Guylas November 30, 2004; 3. Whether an order should now issue for the return of $40,000.00 paid by Ochapowace to McDiarmid; 4. What costs, if any, should be awarded upon this application. [16] The Court of Appeal has recently released decision in the case of International Capital Corporation v. Robinson Twigg Ketilson et al., 2010 SKCA 48 (CanLII), 350 Sask.R. 160 (Sask. C.A.) (the “ICC case”). This judgment announced an “adjustment” to the traditional approach to be taken when deciding whether claim should be dismissed for want of prosecution. The traditional approach was as determined by this Court’s decision in the case of Carey v. Twohig, 1973 CanLII 898 (SK QB), [1973] W.W.R. 378, 37 D.L.R. (3rd) 718 (Q.B.). In the Carey case, Bayda J. (as he then was) determined the following approach to be followed when deciding whether or not an application to dismiss claim for want of prosecution should succeed. He concluded the defendant must show: 1. that there has been inordinate delay; 2. that the inordinate delay is inexcusable; and 3. that the defendants would likely be seriously prejudiced by the delay. [17] Bayda J. went on to observe at p. 388: If the defendant establishes the three factors to which have referred, the court, in exercising its discretion, must take into consideration the position of the plaintiff himself and strike balance. If he is personally to blame for the delay, no difficulty arises. There can be no injustice in his bearing the consequences of his own fault. If, however, the delay is entirely due to the negligence of the plaintiff's solicitor and the plaintiff himself is blameless, it might be unjust to deprive him of the chance of recovering the damages to which he could otherwise be entitled. [18] The Carey case and its principles were confirmed by the Saskatchewan Court of Appeal in the case of Humboldt Flour Mills Co. v. Ewen (1984), 1984 CanLII 2431 (SK CA), 36 Sask.R. 81(Sask. C.A.), [1984] S.J. No. 710 (QL). In the ICC case the court observed that in Humboldt Flour Mills “the court also endorsed Bayda J.’s description of the overriding principles in these sorts of matters as being whether justice can be done despite the delay” (para. 18). (See also Potash Corp. of Saskatchewan Inc. v. Barton 2009 SKCA (CanLII), 320 Sask.R. 29 (Sask. C.A.) at paras. 19-20). [19] These and other cases have recognized that the decision to dismiss an action for want of prosecution is discretionary in nature. At paras. 40 49 of its judgment in the ICC case, the Court of Appeal outlined the revision which it considered appropriate to the Carey case approach. The ICC case decision now governs. It binds this Court when considering dismissal applications. [20] In ICC, the court importantly notes, at para. [41] Delays of the sort underpinning this appeal frustrate not only litigants. They also undermine public confidence in the justice system as whole. At para. 42, our Appeal Court directs as follows: [42] The best way to proceed is by adjusting the Carey v. Twohig approach so that finding to the effect defendant will likely suffer serious prejudice is not strict precondition to striking claim. Rather, the question of prejudice should be factor an important one considered when determining whether it is in the interests of justice that claim proceed to trial notwithstanding inordinate and inexcusable delay. ... [emphasis added] At paras. 43 45, the Court sets out the three step approach for dealing with an application to strike with its modification to step 3: 1. Step one an inquiry about whether the defendant has established that the delay in moving case ahead has been inordinate. 2. Step two an examination of the reasons for the delay aimed at determining whether it is excusable. 3. Step three if the delay is found to be both inordinate and excusable, determine whether it is in the interests of justice that the case proceed to trial notwithstanding the delay. [23] The third step should involve consideration of the issue of prejudice (previously the focus of step 3) as one, albeit an important, aspect of step but having regard to eight enumerated factors (para. 45) as may be applicable to and in the circumstances of the case. They include the following: 1. The prejudice the defendant will suffer in mounting its case if the matter goes to trial; 2. The length of the inexcusable delay; 3. The stage of the litigation; 4. The impact of the inexcusable delay on the defendant; 5. The context in which the delay occurred; 6. The reasons offered for the delay; 7. The role of counsel in causing the delay; and 8. The public interest. Step Inordinate Delay [24] As discussed in the ICC case at para. 43, this step in the analysis involves consideration of the time the plaintiff has taken to get the litigation to the point where the application to strike is brought compared to typical time frames for cases of similar complexity. [25] This case is an action in debt but it apparently relates to substantial and significant course of dealings between these parties occurring over period of years, mainly in 1995-96 and perhaps into 1997 and thereafter. The amount claimed owing is substantial and the products, goods and services provided are significant. There is no suggestion in the amended defence that these goods, products and related services were not provided as it appears they were. [26] Between the commencement of the action in 1999 and 2004, when apparently the file became dormant, the pleadings were closed, mediation completed and examinations for discovery conducted. Additionally, settlement negotiations were undertaken and at least the amount of $40,000.00 was paid to Ochapowace to McDiarmid. [27] The affidavit of Ms. Bellanger demonstrates the delays experienced in initially arranging for the discovery of Laird Allary. This may have ultimately contributed to an agreement to the designation of Ms. Bellanger as appropriate officer to be examined for Ochapowace and her subsequent examination for discovery these circumstances are unclear from the record on the file. [28] Although letters were sent by counsel for Ochapowace to counsel for McDiarmid in the summer of 2009, this correspondence appears to be the first concerted attempt in five years to revive the action. prior 2007 correspondence by the solicitors for Ochapowace to the solicitors for McDiarmid seems to have encouraged no further action on this file by either party. Even so, it is not until now, at least year after the 2009 correspondence, that this application to dismiss the action for want of prosecution is taken. [29] On the other hand, as reviewed in step 2, there is no satisfactory explanation proffered by McDiarmid for its delay in furthering this action or bringing it to trial during the five year period of dormancy. [30] This case, subject to compliance with the undertakings, is ready to be referred for pre-trial settlement conference. Failing settlement, it could be entered for trial. [31] In ICC, the action was commenced in 1994, examinations for discovery held in 1997, 1998 and 2002 and the file then remained dormant for some four years until 2006. As did the trial judge in the ICC second decision, I find and conclude that a delay in excess of five years in advancing this case does constitute inordinate delay when compared to the progress in comparable cases. Step Was the delay excusable? [32] The Chartier affidavit deposes in para. that Mr. Guylas, discovered for McDiarmid, had health issues and he, too, passed away in October of 2006. Although Chartier was responsible, with Guylas, for McDiarmid’s dealings with Ochapowace, Chartier left the employ of the company in 2001, returning in 2007. While these depositions may have some general relevance, they are not satisfactory explanations in law for the company’s lack of diligence in proceeding with its action nor do they provide “lawful excuse”. [33] The onus is on party resisting dismissal application to convince the court that the facts and circumstances support conclusion that the delay was excusable. McDiarmid’s materials fall far short of doing so. find that no legally acceptable excuses have been advanced for the inordinate delay which have found to have occurred in this case. Step Interests of Justice [34] As already observed, it is in this area that the Carey case approach has been modified by the ICC decision. The question now to be considered in the third step of the inquiry is whether or not it is in the interests of justice that this claim proceed to trial notwithstanding the finding of inordinate and inexcusable delay. This question necessarily involves the question of whether or not the defendant will likely suffer serious prejudice having regard to those of the eight factors considered relevant to the circumstances of this case as set out in ICC. [35] The affidavit filed in support of this application by Ms. Petra Bellanger does not satisfy me that the defendant will suffer serious impediments in mounting its case if the matter proceeds to trial. It does appear that Ochapowace, and initially McDiarmid, were in agreement that Laird Allary was the appropriate person to be examined on behalf of Ochapowace because he was the individual primarily responsible for construction on the Ochapowace reserve. The reserve’s dealings with McDiarmid relating to the goods, products and services McDiarmid provided, and for which it sues for payment, necessarily would involve some individuals acting for and representing both parties. However, for whatever reason, both parties appear to have subsequently agreed to or acquiesced in the appointment of Ms. Petra Bellanger as the person sufficiently knowledgeable about the McDiarmid dealings and appropriately representative of Ochapowace to be the person examined for discovery on behalf of the defendant in this action. The various court applications that were made on behalf of Ochapowace, as early as 2002, were supported by her affidavits as are the present applications. It appears to be the case that Ms. Bellanger has informed herself and is very knowledgeable about the circumstances involved in this case. She has, and continues to have, access to the Ochapowace Band records. There are no details given in her affidavit to contradict the statement made in the Chartier affidavit that Chief George did not have much direct involvement with the McDiarmid contracts [36] Although it appears that both Laird Allary and Wally Guylas were the primary representatives “on the ground” for Ochapowace and McDiarmid, neither, unfortunately, have survived the lengthy delay in bringing this case to trial. Nevertheless, both parties must have records and some documentation and, in the case of Ochapowace, other witnesses who must have been involved with the McDiarmid contracts who are still alive. Ms. Bellanger’s affidavit does not address these questions nor does it deny the existence of records, correspondence or other evidence that may or may not be available to assist Ochapowace in the presentation of its defence. [37] have therefore concluded that while there may be some prejudice that the defendant has suffered in mounting its case if the matter goes to trial as result of the unavailability of Laird Allary, nevertheless the degree of involvement of Ms. Bellanger throughout the years and the Ochapowace Band records, together with the examination for discovery the defendant conducted of Mr. Guylas and perhaps other sources, should not disarm the defendant from conducting its defence. [38] The length of the inexcusable delay in this case is comparable to that experienced in the ICC case. In that case, it was not sufficient to warrant dismissal of the action. have reached the same conclusion with respect to the present case. [39] As was the case in ICC, this case has now seen the completion of all pre-trial steps excepting for the response to certain undertakings given and still outstanding and the scheduling of pre-trial settlement conference. Accordingly, the case is ready to and can proceed to trial without further delay and it should do so. [40] The context in which the delay in this case occurred is straight forward. It does appear that neither party has undertaken extensive communications with the other although McDiarmid bears greater fault in this area than does counsel for, and his client, Ochapowace. Nevertheless, the 2007 “warning” was not acted upon in timely fashion. Although greater onus lies upon McDiarmid as plaintiff, nevertheless Ochapowace, either because it considered the matter settled or alternatively was content, in the hopes that the case “had gone away”, to do nothing to encourage more timely disposition of it until the 2009 correspondence, is not blameless respecting its contribution to the delay. CONCLUSION [41] Weighing all the relevant facts, which I have, and sensitive to the on the ground realities of litigation with the aim of achieving a result which is just, I have concluded that this is not a case where the application for dismissal for the plaintiff’s want of prosecution of it should be granted. have concluded that although the plaintiff’s delay in this case was inordinate and legally inexcusable, nevertheless, the prejudice suffered by the defendant does not reach the level of “serious prejudice” having regard to the factors considered as listed in the ICC case. I have concluded that it is in the interests of justice that the plaintiff be permitted to pursue its claim. All parties are cautioned to now proceed diligently and without further delay. Failure to do so will no doubt cause the defendant to consider making further application for dismissal. [42] With respect to the alternate relief claimed, there will be an order pursuant to Rule 231 of The Queen’s Bench Rules compelling the plaintiff to complete the undertakings given at the examination of Walter Guylas November 30, 2004 within 30 days. The application for an order returning the $40,000.00 paid by Ochapowace to McDiarmid is not relief which can be granted at this time. The question of whether or not settlement was reached, the circumstances under which this payment was made by Ochapowace to McDiarmid and retained by the latter are live issues raised by the pleadings. This is an issue that must be determined by the trial judge. [43] Because have concluded that the plaintiff was responsible for an inordinate and legally inexcusable delay in pursuing its action resulting in this application, award the defendant its costs on party/party basis notwithstanding the costs that may ultimately be ordered payable in the cause. The costs awarded are pursuant to Column of this Court’s tariff of costs and must be paid within 30 days. If the parties disagree respecting costs, the same are referred for assessment by the Local Registrar. J. T. C. ZARZECZNY

The defendant applied for dismissal of the plaintiff's claim for want of prosecution. The claim was issued November 1, 1999 and is based in debt for goods and services provided to the defendant. The value of the claim is $521,283.99 and refers to provision of materials, products and services in 1995 and 1996. The statement of defence was filed November 12, 1999 and amended in 2002. In the intervening years, the Chief of the defendant Indian Band died as did the person who had been appointed the proper person to be examined on behalf of the defendant.HELD: The decision to dismiss an application for want of prosecution is discretionary. A three step process was set out in International Capital Corporation v. Robinson Twigg & Ketilson et al., 2010 SKCA 48. In this case, a delay of in excess of 5 years does not constitute inordinate delay when compared to the progress in comparable cases. The amount claimed is significant and there is no suggestion in the amended defence that the goods, products and related services were not provided. Subject to compliance with undertakings, the matter is ready to be referred to pre-trial settlement conference. There is no legal excuse offered on the part of the plaintiff for the inordinate delay in this case. The plaintiff bears the onus of convincing the Court on a balance of probabilities that the delay was excusable and its materials fall short. While there may be some prejudice to the defendant in mounting a defence because of the death of some of the people who were intimately involved in the dealings between the parties, there is an individual available who is intimately familiar with the dealings between the parties and there are discovery transcripts that might be of assistance. Both parties have records and documentation that can be tendered at a trial. The Court concluded that the interest of justice favored continuing with the action. The application to dismiss the action for want of prosecution was denied.

2_2010skqb402.txt

J. 1999 SKQB 178 A.D. 1997 No. 639 J.C.S. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SASKATOON RESPONDENT K. Seto Davis for the petitioner [R.C.D.] on his own behalf JUDGMENT WILKINSON J. November 10, 1999 [1] Although custody was the most conspicuous issue in this proceeding, there are questions of child support and division of matrimonial property that require resolution before the parties can put an end to their acrimonious marital breakdown. The father was unrepresented at trial with the unfortunate result that these proceedings became an extended replay of past domestic arguments. [2] The parties were married on May 22, 1982 and had three children: [T.B.D.], born […], 1985; [M.M.D.], born […], 1987; and [L.C.D.], born […], 1991. [3] The parties separated on October 28, 1997 and petition was immediately issued. The respondent remained in the matrimonial home at 205 Cartier Crescent in the City of Saskatoon, while the petitioner and the children obtained rental accommodation close by. The petitioner obtained interim custody of the children by order of this Court dated December 19, 1997. The respondent was ordered to pay child support of $405 per month, based on an annual income of $21,600. Maintenance was to commence January 1, 1998. To date of trial, the respondent had made only one voluntary payment of $100 in January, 1998 and otherwise ignored the maintenance order until garnishees were implemented by the Maintenance Enforcement Office. The respondent was to have access on his scheduled days off work. [4] On May 6, 1998, the respondent was ordered to list the matrimonial home for sale by June 10, 1998 if he could not obtain financing to buy out the petitioner’s share. The order of Noble J. specified that the sale was to be at price recommended by licensed real estate agent of the purchaser’s choice. The net sale proceeds after payment of the mortgage, real estate commissions and legal fees were to be held in trust or divided equally between the parties. That order was appealed but the respondent agreed the appeal would be abandoned at the commencement of this trial. [5] The father’s employment with the Canadian Corps of Commissionaires was terminated shortly after the order for sale of the matrimonial home was made. He was on employment insurance for short time and subsequently obtained brief employment with Lake Diefenbaker Potato Corporation but he continued to default in his maintenance payments. The father came to resent the fact that access was always exercised on his day off and he had no time to himself. He accused the mother of pushing the children on him. He encouraged the children to come whenever they wanted and problems multiplied. An order of August 12, 1998 was ultimately issued by consent giving the father specified access every second weekend and every second Wednesday. [6] custody and access assessment was prepared for the Court on February 19, 1999. It reports that the parties have been struggling since early on in their relationship. There was prior separation in 1984 when the mother had one-night affair and the father raised questions whether he was in fact the biological father of the eldest son. The relationship did not improve, despite producing two more children. The mother had serious concerns regarding the father’s abuse of alcohol and his anger towards the children, particularly the eldest son. The father felt the mother was mentally ill and abusive to him and the children. [7] The assessor, Garry Prediger, described [T.B.D.] as fairly mature thirteen-year-old who internalizes many of his emotions. He is reportedly in frequent conflict with his sister, [M.M.D.], who he sees as playing off both parents to get what she wants. He stated unequivocally he had no wish to live with his father who he views as dishonest and disinterested in him. [8] Mr. Prediger described [M.M.D.] as bright and somewhat precocious child. She stated baldly to him that she feels her mother has never loved her, is physically abusive and, as result, she will not live with her mother and will run away if forced to. She acknowledged conflict with her older brother, [T.B.D.]. Mr. Prediger acknowledged the possibility that [M.M.D.] had been able to avoid responsibility for unacceptable behaviour and play one parent off the other i.e. call and be “rescued” by dad when in conflict with mum. [9] In Mr. Prediger’s assessment, [L.C.D.] has more appearance of being neutral and he enjoys the company, support and care of both parents. [L.C.D.] has had some behaviour problems following his parents’ separation. He also has some special needs due to difficulties with auditory processing and requires much assistance in reading and spelling. He needs consistency and routine. It was the assessor’s view that due to [L.C.D.]’s young age, he might be more insulated from the conflict in the family. [10] The report outlines the mother’s recognition of past problems with depression and her progress in dealing with it through medication and counselling. She is at the point her doctor describes her as “well managed” and without any need for psychiatric care. The depression has been ascribed to environmental stresses which the mother specifies as the stress of being in co-dependent relationship with problem drinker. Her counsellors consider her issues are situational rather than innate. The petitioner currently maintains full-time employment at SIAST and was recently promoted to higher-paying position. [11] The custody and access report notes that in July, 1998 the father accused the mother of abusing the children. full investigation was conducted by child protection worker who found no protection concerns and that despite strong alliances ([M.M.D.] with dad, [T.B.D.] with mum), the children had no fear of either parent. [12] The report states the father denied having an alcohol problem. He appeared sincere when he said he had discontinued drinking. [13] Concluding that both parents were involved in “protracted pattern of dysfunctional, conflictual communication” and having regard in particular to the age and unwavering antagonism of the two eldest children, Mr. Prediger recommended that custody of [T.B.D.] remain with the mother, the parents have joint custody of [M.M.D.] whose primary residence would be with the father, and custody of [L.C.D.] remain with the mother. He recommended that access remain as set out in the interim order. [14] The respondent rejected the custody and access assessment. At trial, his opening bid was to introduce into evidence some 14 hours of telephone conversations he taped with the wife and children which he forcefully asserted would demonstrate the level of abuse occurring in the petitioner’s home. Only by hearing the tapes, he suggested, could the Court truly understand the petitioner’s violent nature and her dysfunctional relationships with the children. The respondent was adamant that the custody and access assessor never obtained an honest opinion from the children and the Court should not avoid the opportunity of hearing the children in their own words. [15] The father wished to present selected portions of the tapes for reasons that ultimately became obvious. Counsel for the mother objected strenuously to the tapes being admitted and particularly to any edited version of the recordings. In the ordinary course, tape recordings are inadmissible unless their authenticity is established, they are shown to be true and unaltered record, and the voices have been properly identified: See Simpson Timber Co. (Saskatchewan) v. Bonville et al. (1986), 1986 CanLII 3369 (SK QB), 49 Sask. R. 105 (Q.B.); Hauer v. Hauer, (1959), 1959 CanLII 238 (SK CA), 18 D.L.R. (2d) 742 (Sask. C.A.). They are, of course, subject also to the standard test governing the admissibility of evidence in that they must be relevant and probative. [16] In G.(R.) v. Christison, 1996 CanLII 6791 (SK QB), [1997] W.W.R. 641, 25 R.F.L. (4th) 51, 150 Sask. R. 1, 31 C.C.L.T. (2d) 263 (Sask. Q.B.), the court, relying on Fattali v. Fattali (1996), 1996 CanLII 7272 (ON SC), 22 R.F.L. (4th) 159 (Ont. Gen. Div.), refused to admit audiotapes of similar nature in custody hearing, stating “...[i]n my view, such forays into the gathering of potential evidence are to be discouraged in the strongest terms. Proceedings involving the best interests of the children should not be decided on evidence the product of calculated subterfuge”. Another line of cases such as Reddick v. Reddick (1997), 14 C.P.C. (4th) 175 (Ont. Gen. Div.), Britton v. Britton (1991), 37 R.F.L. (3d) 253 (Ont. Gen. Div.) and H.(M.) v. H.(B.A.), [1996] CarswellOnt. 2907, 10 O.T.C. 277 (Ont. Gen. Div.), have admitted evidence of that nature despite the failure to make full or timely disclosure of its existence, on the grounds that the court should have access to all available evidence when considering the children’s best interests, notwithstanding the court’s “repugnance” with respect to such conduct as voiced in the Reddick, case. [17] With the same degree of repugnance, and with the utmost reluctance, I allowed the tapes to be admitted here in their totality, but on the condition they went in unedited. The father, being without legal counsel, was insistent that the tapes were of central importance to his case and that they discredited the conclusions of the custody and access report and demonstrated the abuse that was occurring in the mother’s home. [18] After listening to the tapes in their entirety, I am of the view they have the opposite effect. They speak volumes about the father’s character and motivations while shedding little light on the mother’s. The tapes are primarily conversations between the father and the children, either individually or all together. There is really very little involving the mother directly. The keynote theme, as orchestrated by the respondent, is that the mother is deranged and violent but the father will always be there to rescue the children. It is hard to describe the tone and content of these interminable recordings without lapsing into cynicism and disbelief. They contain hour after endless hour of the father alternately interrogating the children about their mother and her parenting habits, suggesting the children are being abused, prompting the children to make unfavourable comments about their mother, magnifying every incident of childish squabbling into crisis, manipulating the children’s distress over the marital breakdown, encouraging the children to run to his home at every opportunity and generally undermining the mother’s parental authority at every available turn. [19] It is evident that there is discord in the mother’s household but it is primarily due to petty juvenile disagreements between the children or fairly predictable resistance to rules or discipline. The most mature voice on the tape is often [T.B.D.]’s. He recognizes early on that his father is seeking out disagreement, no matter how trivial, and will try to blow things out of proportion or attempt to turn them to his own advantage. Over time, [T.B.D.]’s distress escalates. He pleads with his father not to continue on in that fashion. [M.M.D.], on the other hand, appears to thrive on the discord between her parents. When the family unit was still intact, [M.M.D.] often voiced complaint that the respondent preferred to spend time with her brothers. In the past, she seemed to feel she was being denied her father’s love and attention and has fairly basked in the newfound attention she received from her father after the separation. [M.M.D.] happily reports every disagreement in her mother’s household because it draws the recognition she craves. Listening to her on the tapes, one gets the impression of headstrong, self-willed child who is somewhat oblivious to the feelings of others. [20] Some of the more memorable exchanges on the tapes are as follows: 1. The respondent interrogates the children about the age of their babysitters, whether their mother has been drinking, whether she has asked them to hide things or lie, what time they go to bed, what time mum left, when is she coming back, is she getting pushy and is she yelling at them? Despite the lack of any satisfactory responses, the respondent nevertheless assures the children he will make sure they can get out of there and he is “working on it”. When he tells them their mother needs to control things, the response is “so did you, you used to call us names and be really grumpy”. The respondent cautions them that their mother is on welfare and lies about things. 2. [L.C.D.], after his bedtime, and obviously in an overtired state, calls his father. [L.C.D.] and [M.M.D.] are arguing. [M.M.D.] complains about [L.C.D.] eavesdropping. The respondent says “it’s stressful at mum’s house, isn’t it”? The respondent says “the whole divorce crap is crazy and getting harder on everybody”. [L.C.D.] starts to cry endlessly. The petitioner comes on the phone, calmly suggesting [L.C.D.] should go back to bed. The respondent wants to come and pick him up and encourages him with the advice “you should tell people what you want and they’ll hear you”. [M.M.D.] interjects at some point with complaints about [T.B.D.] and the respondent’s advice is that “[T.B.D.] just says things to be mean, like mum does”. 3. There is conversation with [L.C.D.], once again where the child is obviously overtired but fretful at being left with babysitter. The respondent keeps him on the phone while he repeatedly suggests he “can’t solve all the problems at that house, these are mum’s problems”, etc. The conversation is interspersed with complaints from [M.M.D.] that she wants quality time with the respondent without the boys or that she deserves turn to talk. For the edification of the listener, the respondent frequently pauses to note that [L.C.D.] has been crying for 10 minutes, 15 minutes, 16 minutes and 30 seconds, and so on. [L.C.D.] eventually calms down after 19 minutes when the respondent starts talking about buying him new bike and helmet for his birthday. The conversation ends with the respondent’s rather smug observation that he has been on the phone 23 minutes while [L.C.D.] cries because he does not want to be at his mother’s house. [L.C.D.] continues to cry and asks his father four or five times to get him off speaker phone. The respondent says “no”. 4. There are numerous jabs at [T.B.D.] throughout the conversations. The respondent makes comments such as “[T.B.D.] is mean”, “[T.B.D.] likes to have his own way”, “the other two ([M.M.D.] and [L.C.D.]) should try to stick together”, “[T.B.D.] is the ‘family enforcer’” or “[T.B.D.] always wants things”. The conversations are always littered with asides about mum drinking, leaving the kids with babysitters, needing psychiatrist, coming from sick family background where violence and swearing is the norm, and cautions that [T.B.D.] will become just like his mother if he stays there. The maternal grandfather is referred to as “a drunken wife beater” and the respondent comments that “Gramma was happy when he killed himself”. The respondent tells [L.C.D.] and [M.M.D.] that “Gramma is sick also and that if mum died, she would give the kids to Gramma.” 5. There are numerous conversations where minor disputes have occurred between the children (i.e. [M.M.D.] complaining about [L.C.D.] throwing things, etc.), and the respondent immediately suggests they sound “wrecked” or “stressed out”, and with false tone of urgency, he suggests he will come and get them out or rescue them from the situation. 6. The respondent misses no opportunity to state that fighting is not allowed at his house, swearing is not allowed at his house and overall, his house is just “more fun” to be at. 7. [L.C.D.] calls his father to complain that mum didn’t give him his birthday present. He is met with the response “you have been talking to me three minutes and nine seconds, and you seem so sad is anyone yelling over there? Tell me what you want and you’ll get it” or suggestions like “talk to Grampa, he’ll get you out”. [M.M.D.] interrupts to observe that [L.C.D.] has had 15 minutes on the phone and he is only mad because he did not get to open his birthday present early. The respondent goes to the house to rescue [L.C.D.] and bring him back to his home. For additional flourish, he leaves an editorial comment on the tape that “[L.C.D.] went to bed stressed and looked like little zombie”. 8. The respondent asks [M.M.D.] if she is scared of something. She answers “no”, she “just bumped her toe”. After much repeated assurance to [M.M.D.] that she is “so special”, the respondent asks if “anyone’s arguing or fighting over there”. [M.M.D.] says “no, mum’s just reading” and she called because she felt lonely. The respondent starts talking about books. [M.M.D.] sharply observes that the respondent never read much before, mum did all the reading. Changing the subject, the respondent says [L.C.D.] went straight to sleep at his house. [M.M.D.] responds “[L.C.D.] was just overtired and wanted his presents”. Not to be outdone of the last word, the respondent says that “kids don’t get overtired here”. 9. In one lengthy conversation [M.M.D.] phones to inform that her mother has taken apart the phone and does so at 9:00 p.m. every night. The respondent expresses disbelief and alarm despite having asked earlier why the kids were calling so late. 10. conversation occurs when the children are in the care of teenage babysitter. [L.C.D.] has refused to go to bed and the babysitter has tried to make him. [M.M.D.] has decided to have tantrum. The babysitter is on the verge of tears. [T.B.D.] assures his father that he had everything under control, except [M.M.D.] started hyperventilating. The respondent, rather than telling the younger children to behave, calls Social Services and sends Gramma to rescue them, all the while commenting on the mother’s need to “grow up and realize the children are the biggest thing in her life”. Calm prevails as soon as [M.M.D.] and [L.C.D.] have got their way and can go to their father’s. [T.B.D.] remains at his mother’s house. [M.M.D.] ends by asking her father for some new clothes. The next day [T.B.D.] calls his father pleading with him to have [M.M.D.] and [L.C.D.] ready to return to their mother’s house and not to make scene. He is obviously distraught at the prospect of Social Services or the police becoming involved. He begs his father to please talk, saying “you just push me away”. The respondent, in an aside to [L.C.D.], who is clearly listening on the speaker phone, says “[T.B.D.] is just like mum when he is at her house”. 11. There is long conversation that occurs between [M.M.D.] and the respondent when [T.B.D.] and the petitioner are anxious to get [T.B.D.] to his cadets on time. What follows is petulant and protracted outburst from [M.M.D.] about the fact she is not allowed to wear black lipstick. [T.B.D.], although obviously wanting to get to his meeting, calmly explains to the respondent he was bothered that [M.M.D.] gets put down by her friends who said she looked horrible in her makeup. The respondent says “that’s [M.M.D.]’s decision”. [M.M.D.] says [T.B.D.] and mum don’t like her wearing makeup but nothing will stop her and she will do as she likes. The conversation goes on for an eternity with the respondent trying to rationalize with [M.M.D.] to no avail and eventually giving up. The petitioner finally interjects to politely remind everyone it is time to leave to drop [T.B.D.] at cadets. [M.M.D.] continues to reiterate she is not baby anymore, despite seeming evidence to the contrary. The respondent’s opening question on learning there was dispute in the house was “has your mother been drinking?” to which [M.M.D.] responded “no, I’ve been watching”, followed by the respondent’s comment “I’ll be around if anyone gets fighting or hitting, I’ll take them down”. There is follow-up conversation between the respondent and [M.M.D.] concerning the fact she has now found some purple lipstick. The respondent closes with suggestion “the more times you phone me, the more I’ll know you need me”. They end with discussion about the new shoes he bought for [M.M.D.]. 12. There is conversation late in the evening that occurs when the mother is playing cards at friend’s house and the grandmother is babysitting. [L.C.D.] is again cranky and wants to go to dad’s house. [M.M.D.] asks the respondent for new shoes. The respondent says he knows it is no fun with Gramma, he will come and get them. [M.M.D.] disputes that, saying Gramma was reading to [L.C.D.]. The respondent observes they have been talking for four minutes. [M.M.D.] sarcastically says “he’s got timer”. The respondent starts berating the petitioner to the children and engages [T.B.D.] in an argument about why he would prefer to live with his mother. He encourages [T.B.D.] to call Social Services or the help line. The respondent calls the petitioner at her friend’s house and the children complain she would rather be with her friends than be with them. There are discussions about why [T.B.D.] will not go to his father’s. The petitioner eventually hangs up. The respondent says he is going to call Child Protection Services. [M.M.D.], on the other line, urges her father on, saying he has threatened to do that before and didn’t. The respondent says to her “you’re right Mel, should follow through”. [T.B.D.] asks “what are they going to do” and the respondent says “they’ll pull custody from mum”. The respondent tells [T.B.D.] if he leaves him with his mother, he will be in foster home within year. The respondent calls Child Protection Services and advises he has two stressed-out kids whose mother would rather play cards than look after them and the twelve-year-old is crying. [T.B.D.] accuses his father of lying to them and blowing things up. [M.M.D.] tells [T.B.D.] that mum doesn’t want him. 13. There is long conversation with [M.M.D.] in which she is crying about everyone in Mum’s house calling her names. By turns, [M.M.D.] is alternately complaining, wheedling to get black overalls, teddy bear, CD and walkman, curtly admonishing her father for recording their conversation or saying that he should quit arguing with her. The respondent says he is tired of being bugged for money, he is “dog tired and just wants to read while because they were all over last week”. When [M.M.D.] denies it, the respondent says they all “ate him out of house and home” and “[L.C.D.] and his friends have appetites like hogs”. The conversation ends with the respondent saying their mother is the problem and if she’s got her boyfriend there, [M.M.D.] should just get out. [21] could go on and on, but the conversations are all variations on single theme: the children squabble or want attention, the father overreacts, the father blames it all on the mother, the father rescues the children from the “abusive” home. Particularly with respect to the two youngest, the father manipulates the children and the children manipulate the father. [L.C.D.] and [M.M.D.] can be excused by virtue of their young age and their unhappiness over separation they were ill-prepared to deal with. The father, however, has no redeeming excuse for such calculated, offensive and immature behaviour. He has exploited the children’s unhappiness at every turn and incited and encouraged willful and unruly behaviour to suit his own purposes. Even his current partner, Cheryld Backstrom, is blunt in her analysis of the situation. She was present during some of the exchanges. She heard the tapes and “found them pretty extreme silly situations blown out of proportion”. As she noted “take your pick as to who’s doing it”. She admitted the tapes were controlling and that the children were all aware it was being done and depending what mood they were in, they would ask “should we tape this one or what?” She was of the view if the kids didn’t get their way they were sent to their mother’s or vice versa. She disagreed with the respondent’s practice of putting locks on the children’s doors saying it discouraged the children from learning to share or sends the wrong message that someone may get violent. Unfortunately, her abundance of common sense has not had measurable effect on the respondent. [22] The mother undoubtedly has her faults, though not to the exaggerated degree the respondent alleges. Likely she has yelled and sworn and was difficult to live with during the marriage. Clearly that was standard method of communication during their time together. Living with someone experiencing depression is not easy, nor is cohabiting with drinker. But the mother has made concerted effort to put the past behind her and move on, recognizing her own limitations. She has struggled to keep the children fed, clothed and involved in their extra-curricular activities with little assistance from the respondent, financial or otherwise. She has managed to remain calm in the face of significant provocation from the respondent, fact that only infuriates him further. The father is still mired in the past and thirsty for vengeance. The best interests of the children have been secondary. witness called by the father to discredit the mother refused to do so and was non-committal in his support of the father. Stewart Manz acknowledged he had been friends with the father in the past and they had hunted, fished and golfed together. He acknowledged he had never seen the respondent drunk and at most they would consume 12 beer over long weekend, but also agreed that by law they were not allowed to hunt under the influence. He stated the father had good relationship with the children but he would also say he spoiled them with treats. Mr. Manz said he had not seen the respondent in two years and they were not the best of friends any more. Their relationship broke down because he helped the petitioner move out and when he tried to explain things to the respondent, the respondent did not want to hear. Mr. Manz said he had no concerns about the mother’s parenting skills or use of alcohol and he remained friends with her to the present time. [23] Occasionally, the respondent shows flashes of perception, indicating he knows what is required, but has difficulty translating it into action. He says [L.C.D.] needs to have consistency, with no apparent recognition that [L.C.D.] has had exactly the opposite. He said “[M.M.D.] needs to stop playing little mind games but that’s learned behaviour” said without the slightest apprehension that much of that behaviour was learned from him. As to the single, most significant problem in the current state of affairs, the respondent acknowledged he has removed the two youngest children from the petitioner’s house in excess of 100 times but did not feel it was reward system because they have to go straight to bed if he picks them up after 8:00 p.m. [24] The respondent persistently accuses [T.B.D.] of being rough and violent yet urges the children to indulge in play wrestling, pastime the respondent and his current partner will engage in for two hours at time, three or four times week, despite her being eight months pregnant. He acknowledges she sometimes gets bruised but says she is in “good physical condition”. [25] The respondent acknowledges his drinking has lessened but not discontinued as he suggested in the custody and access report. [26] The respondent does have good parenting qualities if they could only be exercised with an absence of malice. At the present time he is consumed by the need to punish his wife for past injustices in the marriage and for making him feel unmanned by her bossy behaviour and control of the family’s finances. In the result, he has created utter turmoil. The two younger children compete for his attention to an unwholesome degree, while the eldest child has all but rejected him. [27] It is the respondent’s view that the legal system is biased and has failed him. The legal system can only help those who help themselves and it is time for the respondent to turn his scrutiny inward. accept the petitioner was unpleasant to live with. Now it is time for the respondent to move on. He is soon to be father again in new relationship that holds the promise of stability and happiness. Until tensions ease, the children require consistency, stability and predictable rules with known consequences. The chaos that has reigned must end and in the current circumstances that can only be accomplished by granting sole custody to one party. I am of a view that sole custody must be awarded to the mother. [28] In one significant aspect have varied from the recommendations of Mr. Prediger who was of the view joint custody of [M.M.D.] was feasible with primary residence to her father. have had the advantage of hearing [M.M.D.] on the tapes in variety of situations. have had the benefit of more detailed evidence from the respondent’s new partner and from Donna Thiessen, long-time caregiver to the children, and this evidence sheds more insight into [M.M.D.]’s motivations and adamant desire to live with her father. [M.M.D.] told Mr. Prediger she hated her mother and was raised without love. Yet when [M.M.D.] calls her mother from the petitioner’s home, their conversations are typical affectionate chats between parent and child. It is only in matters where [M.M.D.] does not have her way that problem develops. Donna Thiessen was pleasant, matter-of-fact witness who has provided day care for [M.M.D.] and [L.C.D.] since Christmas of 1997. She has close and affectionate relationship with [M.M.D.]. [M.M.D.] candidly stated to her that the reason she wanted to move in with her dad was because mum had rules and curfews whereas at dad’s she could do pretty well as she chooses. Shortly before trial, Mrs. Thiessen saw [M.M.D.] crying on neighbour’s doorstep at 11:00 p.m. on Friday night. The house is frequently party location and she was concerned for [M.M.D.] but thought her interference might be resented. She feels [M.M.D.] is both precocious and impressionable and is apt to get into some trouble if not more carefully supervised. She has observed that when not with her mother, [M.M.D.] is apt to wear excessive makeup and clothes that display her navel. She is developing keen interest in boys. The respondent was quite aggrieved that Mrs. Thiessen had not informed him of the Friday night incident. Perhaps that oversight can be explained by the respondent’s rather rude dismissal when Mrs. Thiessen attempted to introduce herself to him early on, when she started looking after the children. He called the petitioner “fucking bitch” in [M.M.D.]’s presence and said he did not share his wife’s taste in babysitters. [29] Cheryld Backstrom was quite blunt in her assessment of [M.M.D.]. She says [M.M.D.] dresses inappropriately like her mother (although she had never met the petitioner in person). [M.M.D.] has had tantrums about doing dishes or having showers and it is Cherald’s view that [M.M.D.] “just wants to pick fight” or was “ranting and raving about half an hour about having to do dishes” and the respondent let it go little too long. She says [M.M.D.] is “allergic to water”. She mentioned time when [M.M.D.] was grounded for lying to both of them. One gets the distinct impression she is not taken with [M.M.D.]’s behaviour. [30] The respondent acknowledged he was squeamish about matters involving female development and hygiene and these matters are likely to be referred to his partner. That is concern, but relatively minor one. More significantly, the respondent acknowledged all three children should remain together. That is not an option if the respondent is given custody. The ruptures in his relationship with [T.B.D.] go far deeper than the differences between [M.M.D.] and her mother. In the father-son relationship, there is deep sense of emotional rejection on both sides whereas [M.M.D.]’s rifts with her mother are of more superficial nature. [T.B.D.] once had close bond with his father and it is loss he feels acutely. An order placing him in his father’s custody would be an invitation to disaster. The parties are urged to have [T.B.D.] participate in counselling, and possibly some joint counselling with his father in an effort to reconcile their differences. [31] The petitioner will have sole custody of the three children. The respondent will have access from Friday at 5:00 p.m. until Tuesday at 9:00 a.m. every second weekend. The children will continue to have their lunches at the respondent’s home on school days if the respondent can continue to accommodate this. The respondent will have reasonable telephone access to the children provided it is exercised prior to 9:00 p.m. The respondent will have access to the children for one-half of the summer, Christmas and Easter vacations and the mid-term break. [32] On the matrimonial property issues, the order of Noble J. should now be implemented and the property sold. As far as the division of the sale proceeds is concerned, the parties should be placed roughly in the same position they would have been in had the order of Noble J. been complied with. As the respondent stopped making the mortgagee payments after that order, but has continued to reside in the matrimonial home, I am of the view he should bear responsibility for the mortgage payments from July 1, 1998 until the date of sale and there will be a corresponding adjustment of the net sale proceeds in the wife’s favour. As well, the arrears of child maintenance as calculated by the Maintenance Enforcement Office to the date of sale should be satisfied from the respondent’s share of the sale proceeds. [33] Pursuant to the provisions of The Public Employees Pension Plan Act, S.S. 1996, c. P-36.2, the petitioner’s employment pension as at October 28, 1997 will be divided equally and one-half rolled over into an RRSP designated by the respondent. The parties’ RRSP funds will be divided equally and one-half rolled over to an RRSP plan designated by the wife. The parties will retain the furniture, household furnishings and personal effects currently in their possession. The petitioner will return to the respondent any hunting clothes or supplies in her possession, and one-half of the family photographs. [34] As to the loan from the respondent’s mother, the respondent says there was $3,000 outstanding at separation. The loan represents the ba[L.C.D.] of $5,000 down payment that the respondent’s parents advanced to allow the parties to purchase the matrimonial home in 1987. No repayments have been made in roughly 10 years and there were indications the parents had no intention to seek repayment until these proceedings were initiated. The debt itself is statute barred. At law, proceedings to claim debt must be initiated within six years of the date of the last payment. As noted in Russell v. Russell C.A. Docket No. 2760, September 17, 1999, Saskatchewan Court of Appeal, to the extent that The Matrimonial Property Act, 1997, S.S. 1997, c. F-6.2 permits an adjustment for debts, they must be legally enforceable. Accordingly, the mother’s debt cannot be considered legally binding on the petitioner. [35] The Credit Union mortgage and the line of credit will be paid from the proceeds of the sale of the matrimonial home. The only other debt is against the Chevrolet half-ton which the respondent acquired after separation and that debt is his sole responsibility. [36] Maintenance for the children is the last remaining issue. The respondent made no income disclosure until trial and the evidence regarding his 1999 income was unsatisfactory. His 1998 income, according to his T-4's was as follows: Canadian Corps of Commissionaires $9,588.83 Employment insurance 6,081.00 Lake Diefenbaker Potato Corporation 2,066.00 Total: $17,735.83 [37] The respondent also had renters in the house in 1998 who have sporadically paid him rent or given him gifts such as $680 stereo, in lieu of rent. consider the respondent could have obtained $250 or $300 per month had he rented out on more reasonable basis. If rental income of $3,000 to $3,600 was deemed to his 1998 income, his earnings approximate the $21,600 in annual income he was receiving at the time the maintenance order of December 19, 1997 was rendered. [38] For an undisclosed period of time, the respondent has worked for National Cartage/J.T. Trucking, driving truck on short and long distance hauls but the respondent was not inclined to produce any comprehensive details. He suggests his gross income is $1,000 per month although he can make $208 per day on trip to Calgary. In the absence of satisfactory confirmation of his earnings, the prior maintenance award of $405 per month will remain in effect. [39] I make no order for day care costs, again due to the absence of adequate proof as to what was incurred, either through the submission of receipts, cancelled cheques or other documentary evidence, and the absence of proof as to whether the services were required due to the mother’s employment or other reasons. The net after-tax cost of day care has also not been calculated. The petitioner did not provide full copy of her 1998 return and it is therefore unknown what amounts, if any, were claimed in that taxation year. The petitioner is not precluded from returning that issue, on more comprehensive evidence. Likewise, the respondent is not precluded from having review of his maintenance obligation conducted if he produces the necessary income information. [40] There will be a judgment for divorce, to be made final on the expiration of thirty-one days. [41] The petitioner will have her costs of the proceedings, to be taxed.

Custody, child support and division of matrimonial property were in dispute. The mother was awarded interim custody of the three children in 1997. The father was ordered to pay child support of $405 per month but had made only one voluntary payment of $100. He agreed to abandon his appeal of the order for sale of the matrimonial home. He had been unable to obtain financing to buy out her share. The father, unrepresented by counsel, sought to have selected portions of 14 hours of taped telephone conversations with the children and wife admitted into evidence. He insisted the tapes were of central importance to his case; that they discredited the conclusions of the custody and access report and demonstrated abuse was occurring in the mother's home. HELD: 1)Sole custody was awarded to the mother. The father was to have access Friday from 5:00 p.m. until Tuesday at 9:00 every second weekend. 2)The tapes were admitted in their totality, unedited. The two lines of cases respecting the admission of audiotapes in a custody hearing were reviewed. The tapes had the opposite effect to the father's intent. The father 'alternatively interrogated the children about their mother; prompted them to make unfavourable comments about her; magnified every incident of childish squabbling into a crisis; magnified the children's distress over the marital breakdown, encouraged the children to run to his home at every opportunity; and generally undermined the mother's parental authority at every available turn.' The petitioner's depression had been ascribed to environmental stresses rather than innate. The father acknowledged that his drinking had lessened but not discontinued as he suggested in the custody and access report. 3)The property was to be sold. The father was responsible for mortgage payments from July 1998 until the date of sale as he had stopped making mortgage payments after the previous order while continuing to reside in the home. A corresponding adjustment in the net sale proceeds was to be made in the wife's favour. Child maintenance was to be satisfied from the father's share of the sale proceeds. 4)The mother's employment pension was to be divided equally and one half rolled into an RRSP designated by the father. RRSP's were to be divided equally. Furniture, furnishings and personal effects in their possession would be retained by each party. Hunting clothes or supplies and one half of the family photographs were to be returned to the father. The loan from the respondent's mother was statute-barred. No repayments had been made in 10 years. The debt for the half ton acquired after separation was the father's sole responsibility. 5)The prior order of $405 for child support remained in effect. The father made no income disclosure until trial and evidence of his 1991 income was unsatisfactory. Rental income was deemed to his 1998 income. No order was made for day care costs due to inadequate proof. The parties could seek a review if more comprehensive evidence were produced. 6)Judgment for divorce would be made final on the expiration of 31 days.

c_1999skqb178.txt

J. 2003 SKQB 481 Q.B.G. A.D. 2003 No. 1063 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: THE UNITED STATES OF AMERICA, as represented by the Attorney General of Canada and ANDEL GRIFFITHS, a.k.a., MICHAEL CAMPBELL, MICHAEL GREEN AND ANDY GRIFFITHS, RESPONDENT H.H. Dahlem, Q.C. for The United States of America and for Attorney General of Canada M.W. Owens for Andel Griffiths JUDGMENT KOCH J. November 14, 2003 [1] Andel Griffiths (“Griffiths”) born September 7, 1975 is Jamaican national living in Saskatoon with his wife Jennifer, Canadian citizen. Griffiths entered Canada April 15, 2003 and is entitled to remain in Canada as permanent resident for the time being. He has permanent resident card which expires May 5, 2008. He has established residence in Saskatoon. [2] The United States of America (“USA”) seeks to extradite Griffiths to face a charge of conspiracy to import into the USA a substance containing cocaine. Griffiths was arrested in Saskatoon on May 28, 2003. On June 16, 2003 he was granted bail pending his extradition hearing. Subsequently the Attorney General of Canada caused to be filed with the court written authority to proceed pursuant to s. 15 of the Extradition Act, 1999, c. 18. Section 24 of the Act obligates the court to proceed with an extradition hearing. Pursuant to s. 29, the hearing must necessarily result in either committal under ss. (1), which places the matter once again before the Attorney General, or discharge under ss. (3). Section 29(1) provides (in part): 29. (1) judge shall order the committal of the person into custody to await surrender if (a) in the case of person sought for prosecution, there is evidence admissible under this Act of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the authority to proceed and the judge is satisfied that the person is the person sought by the extradition partner; [3] Each party has filed a motion as follows:(1) a motion dated September 9, 2003 on behalf of the Deputy Attorney General of Canada representing the USA for an order fixing a date for the hearing of the extradition request in this Court.(2) a motion dated September 25, 2003 on behalf of Griffiths for a stay of proceedings on one or more of the following grounds: contempt of court by the Attorney General of Canada for failing to provide proper disclosure; alternatively, the production by the Attorney General of witness statements and other evidence in compliance with the common law duty of procedural fairness as it applies in administrative proceedings; in the further alternative, the production by the Attorney General of witness statements and other information pursuant to s. of the Canadian Charter of Rights and Freedoms. [4] heard both motions concurrently. As the outcome of the motion on behalf of Griffiths will affect the disposition of the motion on behalf of the Deputy Attorney General, will first address the Griffiths motion. [5] The issues with respect to disclosure are as follows:1. It is alleged that the Attorney General has not disclosed all the evidence in his custody or control. Counsel for the Attorney General however has undertaken that everything within the control of the Attorney General has been turned over to the solicitor for Griffiths except only the diplomatic note from USA to Canada which initiated the process, which counsel contends is not relevant to the application for hearing. There has been no investigation in Canada of the alleged offence. The Attorney General has only that information which the USA authorities have seen fit to provide to him. accept the contention on behalf of the Attorney General that the diplomatic note is not relevant at this stage. 2. Griffiths’ counsel alludes to the following statement of Allbright J. of this Court when Griffiths was brought before the Court immediately following his arrest: Mr. Miller: It’s very serious allegation. The Court: Yes, it is and know that it’s would be in Mr. Griffiths’ best interest that all of the material available was disclosed, because know he would want to know everything that he has to deal with. And certainly know, Ms. LeClair-Harding that’s her way of she practises law, in wanting to know what’s there to provide the maximum of assistance to someone such as Mr. Griffiths. And subsequently the Court [addressing counsel for the Attorney General]: You will be providing to Ms. LeClair-Harding the information that she requires. He submits that this obligates the Attorney General to produce the investigational information that USA authorities plan to use to prosecute Griffith. Notwithstanding the able submission of counsel for Griffiths am unable to share his interpretation of the words of Allbright J. It does not follow from these comments of Allbright J. that Griffiths is entitled to disclosure additional to that otherwise required by law. Obviously Allbright J. directed or at least urged the Attorney General to make full and prompt disclosure. do not believe however that he intended to order any disclosure in addition to that otherwise required by law. [6] The hearing judge’s role in an extradition proceeding is limited to determining whether there is prima facie evidence that the act alleged would constitute crime in Canada. La Forest J. in the case of The Republic of Argentina v. Mellino, 1987 CanLII 49 (SCC), [1987] S.C.R. 536, 33 C.C.C. (3d) 334, put it this way (at p. 349): [The extradition hearing] is merely to determine whether the relevant crime falls within the appropriate treaty and whether the evidence presented is sufficient to justify the executive surrendering the fugitive to the requesting country for trial there. Responsibility for the conduct of our foreign relations, including the performance of Canada’s obligations under extradition treaties, is, of course, vested in the executive. repeat: the role of the extradition judge is modest one; absent express statutory or treaty authorization, the sole purpose of an extradition hearing is to ensure that the evidence establishes prima facie case that the extradition crime has been committed. See also U.S.A. v. Dynar, 1997 CanLII 359 (SCC), [1997] S.C.R. 462, 115 C.C.C. (3d) 481. [7] In the Mellino case, supra, La Forest J. went on to state at p. 350: In particular, it is not the business of an extradition judge to assume responsibility for reviewing the actions of foreign officials in preparing the evidence for an extradition hearing. This would seem to me to be in breach of the most elementary dictates of comity between sovereign states. foreign state obviously has jurisdiction over the actions of its officials, although, no doubt, the executive of this country must, on occasion, consider such matters in exercising its discretion to surrender fugitive. [8] The role of the hearing judge, vis-à-vis, the role of the Minister of Justice was described by Watt J. of the Ontario Superior Court of Justice in the case of Germany v. Schreiber, [2000] O.J. No. 2618 (S.C.J.), as follows: [71] It has been said, and said repeatedly by courts of the highest authority, that the role of an extradition hearing judge is narrow one, confined to what is specified in the enabling statute. That role is to determine whether there is prima facie case that an extradition crime has been committed by the person sought for extradition. [72] Under the Act, the Minister and the extradition judge occupy two (2) different solitudes. The Minister has role at the beginning and the end of the extradition process. The judge discharges his or her function in the middle. Each operates independently of the other, except to the extent that the Minister’s final involvement is contingent on judicial order for committal. Neither intrudes into the other’s area of responsibility. Neither reviews the other’s determination or decision. [9] Because of the limited role of the hearing judge Charter jurisdiction is necessarily restricted to those issues specific to the functions of the extradition hearing. As Arbour J. of the Supreme Court of Canada held in the case of U.S.A. v. Kwok, [2001] S.C.R. 532, 2000 SCC 18 (CanLII), 152 C.C.C. (3d) 225 (S.C.C.), s. 9(3) of the Extradition Act does not confer an expanded Charter jurisdiction upon the extradition judge. It simply permits the extradition judge to exercise the jurisdiction previously reserved for the habeas corpus judge which includes remedies only for Charter breaches that pertain directly to the circumscribed issues relevant at the committal stage of the extradition process. [10] In Thailand v. Karas, 2000 BCSC 1717 (CanLII), [2000] B.C.J. No. 2689 (S.C.), Lysyk J. stated: [32] line of authority under the former legislation and under the Act provides firm support for the proposition that applications for disclosure will be denied unless they are tied to the limited jurisdiction of the extradition judge. [33] The points made in Dynar include the following. The principles of fundamental justice guaranteed under s. of the Charter vary according to the context in which they are raised: para. 128. The context and purpose of the extradition hearing shape the level of procedural protection that is available to fugitive and the extradition process is not to be equated to the criminal trial process: para. 129. Accordingly, it is neither necessary nor appropriate to transplant into the extradition process all of the disclosure requirements set out in Stinchcombe, and developed in subsequent jurisprudence, relating to domestic criminal proceedings and in regard to the accused’s right to full answer and defence in Canadian trial: para. 130. The committal hearing is neither intended nor designed to provide the discovery function of domestic preliminary inquiry: para. 132. While the fugitive is entitled to know the case against him, for purposes of the extradition hearing, he is generally entitled to disclosure only of materials relied upon by the requesting state to establish its prima facie case: paras. 134-35. Disclosure may be required with respect to justiciable Charter issue, but the material before the extradition court must provide an “air of reality” to the contention that there has been violation of the fugitive’s Charter right(s): para. 136 et seq. [11] In recent decision in this Court on an application for detailed disclosure prior to an extradition hearing in the case of United States of America v. Daul, 2003 SKQB 272 (CanLII), [2003] S.J. No. 389 (Q.B.), Krueger J. commented as follows: [9] The right to make full answer and defence is paramount in trial. In extradition hearings guilt or innocent is not in issue. One must also bear in mind that the extradition procedure is based upon treaty where each state assumes that the reciprocating state has fair and just criminal system. The applicant is entitled to disclosure of the materials on which the United States is relying to establish prima facie case. He is not entitled, at the extradition stage, to present his defence on the assumption that fair hearing will not take place at the trial or in order to avoid trial in the foreign state. [11] Disclosure of the information and materials applied for might, if committed, assist the applicant in his attempt to persuade the Minister not to surrender him. That argument has not been advanced, nor is it expedient at this stage. An appeal to the Court of Appeal was dismissed. [12] Counsel for Griffiths argues that the application before Krueger J. in the Daul case was under s. of the Charter and no consideration was given to parallel common law rights advanced on behalf of Griffiths, specifically, denial of natural justice. see no merit in that argument. The fundamental issue is the extent of Griffiths’ right to disclosure of documents and information. If he is not entitled under s. of the Charter to what he has requested then concurrent common law rights cannot serve to expand his entitlement. [13] It follows that the motion on Griffiths’ behalf is without merit and it is accordingly dismissed. [14] am not prepared to award costs against Griffiths’ solicitor as requested by counsel for the Attorney General. [15] The motion on behalf of the Attorney General to set a date for the extradition hearing is granted. The hearing is to proceed on January 6, 2004 at 10:00 a.m. or at such other date and time as counsel may agree upon in consultation with the Local Registrar.

The United States of America sought to extradite the respondent to face a charge of conspiracy to import into the USA a substance containing cocaine. The USA brought a motion to set a date for the extradition hearing. The respondent brought a motion requesting further disclosure and alleged that the USA had not disclosed all of the evidence in its custody or control. HELD: The application for disclosure was dismissed. A date for the extradition hearing was set.

9_2003skqb481.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 99 Date: 2007 03 14 Docket: DIV. No. 07124/2005 Judicial Centre: Prince Albert, Family Law Division BETWEEN: CORY WADE PATRICK, Petitioner (Respondent by Counterpetition) and LOUISE VALERIE PROULX PATRICK, Respondent (Petitioner by Counterpetition) Counsel: Dale N. Blenner‑Hassett for the petitioner (respondent by counterpetition), Cory Wade Patrick Trent E. Forsyth for the respondent (petitioner by counterpetition), Louise Valerie Proulx Patrick JUDGMENT GOLDENBERG J. March 14, 2007 [1] The parties were recently before me in an action for custody, access, support, divorce and division of family property. Due to change in circumstances, it was necessary to sever of the matters of custody, access and support. This judgment deals with divorce and division of family property. DIVORCE [2] Grounds for divorce having been proven, it is ordered that Cory Wade Patrick and Louise Valerie Proulx Patrick who were married on the 17th day of August, 2002, are divorced and, unless appealed, this judgment takes effect and the marriage is dissolved on the 31st day after the date of this judgment. DIVISION OF FAMILY PROPERTY [3] Cory and Louise are young couple who, when together, resided in the family home on the SE¼‑27‑52‑05‑W3rd, in the Debden district, in the Province of Saskatchewan. [4] They met and dated when Louise was still in high school. lasting relationship was not formed at that time. [5] After completing grade 12, Louise moved to Saskatoon where she worked for period of time. She then returned to Prince Albert and obtained employment there. [6] The parties began seeing each other again at the end of May or the beginning of June 1999. Upon finding out that Louise was pregnant, they moved in together. The date they moved in together is uncertain from the evidence. However, find that they would have been living together by August 1, 1999. They resided in the home on the SE¼‑27‑52‑05‑W3rd (162 acres). [7] Upon his father’s death in 1996, Cory had inherited the SE¼ along with Ptn. NE¼‑27‑52‑05‑W3rd (23 acres). [8] The parties’ first child was born March 18, 2000. They had planned to marry thereafter, but upon Louise becoming pregnant again, the wedding was postponed. Their second child was born October 20, 2001. Cory and Louise were married August 17, 2002. [9] Cory began working at the Weyerhaeuser saw mill in Big River in January 2000. This continued until he was laid off by Weyerhaeuser in April 2006. He then took up employment as municipal labourer and also at waste management site. [10] Louise remained at home with the children until the youngest was about two years of age. In approximately October 2003, Louise began cosmetology course in Saskatoon. She would leave the farm home Tuesday mornings at about a.m. and return immediately after Saturday classes. Cory did not contribute to her tuition costs. To save costs Louise stayed with relatives in Saskatoon. Upon completion of the cosmetology course, Louise began working in hair salon in Debden in July 2004. This proved to be unprofitable. Louise terminated this in July 2005. She worked at Weyerhaeuser at Prince Albert from mid‑July to December 2005 and for few days in January 2006. [11] The parties separated on May 21, 2005. Louise left the family home and moved into vacant house on her parent’s farm in the Shell Lake district. Cory continued to live in the family home. [12] The principle asset is the family home, that is to say the SE¼‑27‑52‑05‑W3rd. In his evidence at trial, Cory indicated that he was willing to put it up for sale. specifically find that prior thereto, Cory never indicated that he was prepared to sell the SE¼‑27‑52‑05‑W3rd. The outset issue [13] One of the issues arising from the trial is the value of SE¼‑27‑52‑05‑W3rd. The parties arranged for an appraisal of the SE¼‑27‑52‑05‑W3rd and the Ptn. NE¼‑27‑52‑05‑W3rd and split the costs of same. As agreed, the appraisal was placed into evidence before me. The appraisal is what will simply call the usual type of appraisal that is accepted in this Court. The appraiser physically inspected the property with Cory in attendance. The Direct Comparison Approach to Value was utilized based on market data obtained as explained therein. Highest and best use was also analysed as explained therein. The appraised value as of the date of application, July 19, 2005, is $101,600. In cross‑examination Cory agreed that the appraised value for the SE¼‑27‑52‑05‑W3rd, including the house and yard site, was $95,100. [14] As part of Cory’s evidence, and as agreed, letter from real estate agent was placed into evidence. In the letter the real estate agent valued the SE¼‑27‑52‑05‑W3rd at $65,000 to $70,000 as of April 17, 2006. [15] The trial was held in November and December 2006. [16] can well understand why, given the limited value of the family property and the limited means of the parties, the evidence was placed before me as it was. However, must determine value. The appraisal is in format and follows procedure long recognized by this Court. The letter is simply that, letter from real estate agent. Cory’s counsel acknowledges that have no evidence as to the real estate agent’s knowledge or expertise in the area of land appraisal. There is no explanation as to how the value was arrived at other than an inspection of the property. There is no evidence before me as to any factors that would result in reduction, in the intervening nine months, from the application date value set out in the appraisal. [17] consider it appropriate to value the SE¼‑27‑52‑05‑W3rd as of the date of application, July 19, 2005, and find the value to be $95,100. [18] That, however, is not the end of the matter. Cory’s counsel, in his written submission, raises an issue which now refer to as the “outset issue”. Counsel, in effect, says that the value of the SE¼‑27‑52‑05‑W3rd is not material, that the SE¼‑27‑52‑05‑W3rd should be sold and from the sale price, be it “much or little”, the net proceeds is what is to be divided by the parties. With all due respect to learned counsel, this position is not in accordance with the legislation and the practice of this Court. [19] In Benson v. Benson (1994), 1994 CanLII 4554 (SK CA), 120 Sask. R. 17 (C.A.), the Saskatchewan Court of Appeal set out the approach to be taken by judge when rendering decisions pursuant to The Family Property Act, S.S. 1997, c. F‑6.3. At paras. 18 and 19 of that decision, Justice Cameron set out the methodology as follows: [18] Section 21(1) of the Act requires that the “matrimonial property or its value”, both as defined in s. 2, be distributed and distributed equally, subject only to the exceptions, exemptions, and equitable considerations mentioned elsewhere in the statute. “Matrimonial property” is defined by s. 2(h) to mean all manner of property that, “at the time an application is made under this Act”, is owned by one or other of the spouses or in which either has an interest. “Value” on the other hand is defined by s. 2(1) to mean the fair market value “at the time an application is made under this Act, or at the time of adjudication, whichever the court thinks fit”. [19] In the light of these and other provisions of the Act, the practice is to resolve these cases along the lines suggested by Carter, J., in Rathie v. Rathie (1980), 1980 CanLII 2016 (SK QB), Sask.R. 361, 17 R.F.L. (2d) 265 (Q.B.), determining, first, the property and its value subject to distribution. This ordinarily entails compiling an inventory of the property owned by the spouses as of the time of application and establishing the net value of that property as of that time or the time of adjudication. Exceptions aside, this is the property and its value which is subject to distribution. It is the practice to go on from there to next determine whether any of that property or its value is exempt from distribution; then to determine whether any of it ought not to be distributed equally having regard for the equitable considerations mentioned in the statute; and finally to decide how the distribution should be effected. [20] That certainly is the practice followed by the Court. See for example Crowe v. Crowe, 2001 SKQB 202 (CanLII), 205 Sask. R. 241, cited by Cory’s counsel and also the recent decision of Guderyan v. Meyers, 2006 SKQB 535 (CanLII), [2006] S.J. No. 797 (QL). [21] The Family Property Act, S.S. 1997, c. F‑6.3, as amended, provides in part: 2(1) In this Act: ... “family home” means, subject to subsection (2), property: (a) that is: (i) owned by ... one or both spouses, ... (ii) ... and (b) that is or has been occupied by one or both spouses as the family home ... and that is: (c) house or part of house, including the land appurtenant to it consisting of not more than 65 hectares; ... “family property” means any real or personal property, regardless of its source, kind or nature, that, at the time an application is made pursuant to this Act, is owned, or in which an interest is held, by one or both spouses, ... ... “household goods” means personal property that is ordinarily used, acquired or enjoyed by one or both spouses for transportation, household, educational, recreational, social or aesthetic purposes, but does not include heirlooms, antiques, works of art, clothing, jewellery or other articles of personal use, necessity or ornament or any personal property acquired or used in connection with trade, business, calling, profession, occupation, hobby or investment; ... “spouse” means either of two persons who: (a) at the time an application is made pursuant to this Act, is legally married to the other or is married to the other by marriage that is voidable and has not been voided by judgment of nullity; ... (c) is cohabiting or has cohabited with the other person as spouses continuously for period of not less than two years; ... “value” means: (a) the fair market value at the time an application is made pursuant to this Act, or at the time of adjudication, whichever the court thinks fit; or (b) if fair market value cannot be determined, any value at the time an application is made pursuant to this Act, or at the time of adjudication, that the court considers reasonable. ... 20 The purpose of this Act, and in particular of this Part, is to recognize that child care, household management and financial provision are the joint and mutual responsibilities of spouses, and that inherent in the spousal relationship there is joint contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities that entitles each spouse to an equal distribution of the family property, subject to the exceptions, exemptions and equitable considerations mentioned in this Act. 21(1) On application by spouse for the distribution of family property, the court shall, subject to any exceptions, exemptions and equitable considerations mentioned in this Act, order that the family property or its value be distributed equally between the spouses. (2) Subject to section 22, where, having regard to the matters mentioned in subsection (3), the court is satisfied that it would be unfair and inequitable to make an equal distribution of family property or its value, the court may: (a) refuse to order any distribution; (b) order that all the family property or its value be vested in one spouse; or (c) make any other order that it considers fair and equitable. (3) For the purposes of subsection (2), the court shall have regard to the following: (a) any written agreement between the spouses or between one or both spouses and third party; (b) the length of time that the spouses have cohabited; (c) the duration of the period during which the spouses have lived separate and apart; (d) the date when the family property was acquired; (e) the contribution, whether financial or in some other form, made directly or indirectly by third party on behalf of spouse to the acquisition, disposition, operation, management or use of the family property; (f) any direct or indirect contribution made by one spouse to the career or career potential of the other spouse; (g) the extent to which the financial means and earning capacity of each spouse have been affected by the responsibilities and other circumstances of the spousal relationship; (h) the fact that spouse has made: (i) substantial gift of property to third party; or (ii) transfer of property to third party other than bona fide purchaser for value; (i) previous distribution of family property between the spouses by gift or agreement or pursuant to an order of any court of competent jurisdiction made before or after the coming into force of this Act or The Miscellaneous Statutes (Domestic Relations) Amendment Act, 2001 (No. 2); (j) tax liability that may be incurred by spouse as result of the transfer or sale of family property or any order made by the court; (k) the fact that spouse has dissipated family property; (l) subject to subsection 30(3), any benefit received or receivable by the surviving spouse as result of the death of his or her spouse; (m) any maintenance payments payable for the support of child; (n) interests of third parties in the family property; (o) any debts or liabilities of spouse, including debts paid during the course of the spousal relationship; (p) the value of family property situated outside Saskatchewan; (q) any other relevant fact or circumstance. 22(1) Where family home is the subject of an application for an order pursuant to subsection 21(1), the court, having regard to any tax liability, encumbrance or other debt or liability pertaining to the family home, shall distribute the family home or its value equally between the spouses, except where the court is satisfied that it would be: (a) unfair and inequitable to do so, having regard only to any extraordinary circumstance; or (b) unfair and inequitable to the spouse who has custody of the children. (2) Where clause (1)(a) or (b) applies, the court may: (a) refuse to order any distribution; (b) order that the entire family home or its value be vested in one spouse; or (c) order any distribution that the court considers fair and equitable. 23(1) Subject to subsection (4), the fair market value, at the commencement of the spousal relationship, of family property, other than family home or household goods, is exempt from distribution pursuant to this Part where that property is: (a) acquired before the commencement of the spousal relationship by spouse by gift from third party, unless it can be shown that the gift was conferred with the intention of benefitting both spouses; (b) acquired before the commencement of the spousal relationship by spouse by inheritance, unless it can be shown that the inheritance was conferred with the intention of benefitting both spouses; or (c) owned by spouse before the commencement of the spousal relationship. (2) Subject to subsection (4), property acquired as result of an exchange of property mentioned in subsection (1) is exempt from distribution pursuant to this Part to the extent of the fair market value of the original property mentioned in subsection (1) at the commencement of the spousal relationship. (3) Subject to subsection (4), family property, other than family home or household goods, is exempt from distribution pursuant to this Part where that property is: (a) an award or settlement of damages in tort in favour of spouse, unless the award or settlement is compensation for loss to both spouses; (b) money paid or payable pursuant to an insurance policy that is not paid or payable with respect to property, unless the proceeds are compensation for loss to both spouses; (c) property acquired after decree nisi of divorce, declaration of nullity of marriage or judgment of judicial separation is made with respect to the spouses or, where the spouses are spouses within the meaning of clause (c) of the definition of “spouse” in subsection 2(1), property acquired more than 24 months after cohabitation ceased; (d) property acquired as result of an exchange of property mentioned in this subsection; or (e) appreciation on or income received from and property acquired by spouse with the appreciation on or income received from property mentioned in this subsection. (4) Where the court is satisfied that to exempt property from distribution would be unfair and inequitable, the court may make any order that it considers fair and equitable with respect to the family property mentioned in this section. (5) In making an order pursuant to this section, the court shall have regard to the following: (a) any of the matters mentioned in clauses 21(3)(a) to (p); (b) contributions in any form made by the spouses to their relationship, children or property prior to the commencement of their spousal relationship; (c) contribution, whether financial or in any other form, made by spouse directly or indirectly to the acquisition, disposition, preservation, maintenance, improvement, operation, management or use of property mentioned in this section; (d) the amount of other property available for distribution; (e) any other relevant fact or circumstance. (6) All family property is presumed to be shareable unless it is established to the satisfaction of the court that it is property mentioned in this section. 40 The court may, in any proceeding pursuant to this Act, take into consideration any agreement, verbal or otherwise, between spouses that is not an interspousal contract and may give that agreement whatever weight it considers reasonable. Determining the Property Subject to Distribution and its Value [22] As set out in Benson, supra, this requires the creation of an inventory of the property owned by either of the parties as of the date of application (July 19, 2005) and establishing its value as of that time or, alternatively, as of the time of adjudication. There is dispute between the parties as to what the assets are and their values. shall now proceed to deal with the various items. (a) What constitutes the family home and its value? [23] As counsel point out, pursuant to s. 22(1)and s. 23(1) of the Act, there is no exemption with respect to the family home. Accordingly it is the entire value of the family home as of application or adjudication that is to be determined. [24] Cory’s counsel takes the position that the “family home” to be divided does not necessarily have to be the entire piece of real property, that the “family home” may include “not more than 65 hectares” (s. 2(1) definition of the Act), and accordingly, the divisible property does not have to be the full piece of property and all the adjoining land. [25] Counsel goes on to cite from Crowe, supra, at paragraph 33, as follows: .. While the matrimonial home may include up to 65 hectares of adjacent land, the focus of the special status is the interest of the spouse in the home itself and not the adjacent land. ... [26] Counsel goes on to state that an “artificial carving out” of portion of section is not desirable, and is not what was contemplated by the legislature. (Crowe, at paragraph 33). Counsel points out that according to the appraisal, only three acres are occupied yard site, including the home itself, the balance of the quarter being comprised of field, grass, bush pasture and waste slough. [27] Cory’s counsel goes on to suggest that the Court order the sale and distribution of proceeds from something less than the entirety of SE¼‑27‑52‑05‑W3rd. By way of example, counsel suggests sale and distribution of 10 acres (including the home and yard site) with the remaining 152 acres being Cory’s to do with as he determines. Cory’s counsel also suggests that if the Court orders the sale of the entirety of the 162 acres of SE¼‑27‑52‑05‑W3rd, then some percentage of the proceeds would be divided 50:50 (not exempt, “family home”, divisible), and the remaining percentage would go to Cory (exempt, not divisible). As understand his submission, he also says that if the Court orders the entirety of the SE¼‑27‑52‑05‑W3rd be sold with the proceeds distributed equally, then an amount should be deducted from Louise’s share and added to Cory’s share to recognize the debt Cory has paid since the separation. [28] The issue then becomes, what is the family home? Cory’s counsel takes the position that while the three acres of occupied yard site constitute “family home” and are thus not exempt from distribution, the balance of the acres or some part of them (up to 159 acres) are not necessarily “family home” and should not be subject to distribution. [29] do note the SE¼‑27‑52‑05‑W3rd contains 162 acres. “Family home” as defined in s. of the Act, refers to “a house or part of house, including the land appurtenant to it consisting of not more than 65 hectares”. calculate 65 hectares to equal 160.62 acres (on the basis of hectare equals 2.4710 acres) Also, on the basis of acre equals 0.4047 hectares, calculate 162 acres to equal 65.5614 hectares. Accordingly, the SE¼‑27‑52‑05‑W3rd is in excess of 65 hectares (160.62 acres) by 0.5614 hectares (1.38 acres). consider Crowe to be distinguishable on its facts. Save for 0.5614 hectares (1.38 acres) and on the basis of what is before me, consider the SE¼‑27‑52‑05‑W3rd to be the family home. The SE¼‑27‑52‑05‑W3rd is to be distributed equally between the parties. The slight overage in the size of the SE¼‑27‑52‑05‑W3rd does not bring into play s. 22(1)(a) of the Act, “unfair and inequitable to do so, having regard only to any extraordinary circumstance”. In my subsequent calculations herein, an adjustment must be first made for the portion of 0.5614 hectares 1.38 acres) that is not the family home. [30] The appraisal fixed value for the land SE¼‑27‑52‑05‑W3rd and Ptn. NE¼‑27‑52‑05‑W3rd of $61,600. The appraisal sets out the yard site as being three acres. Cory agreed the Ptn. NE¼‑27‑52‑05‑W3rd (23 acres) had an appraised value of $6,500. Accordingly take the appraised value of the remaining 159 acres of SE¼‑27‑52‑05‑W3rd to be $55,100 or $346.54 an acre. Cory must receive an adjustment for the value of the 1.38 acres in the sum of $478.23 ($346.54 1.38). [31] There is no preference in The Family Property Act as between the date of application and the date of adjudication. The Courts have indicated generally preference for using the date of application. In Metz v. Metz (1991), 1991 CanLII 7873 (SK QB), 96 Sask. R. 95 at 102 (Q.B.), Dickson J. said: [34] Neither party has said much about the date of valuation, probably because there is not much difference in value of their property on the two dates open for selection: the date action was commenced or the date of adjudication. The date usually selected by the court is the former. The respondent receives notice that day that claim is being made. It follows that the interest of the parties should crystallize then. The court will select the date of adjudication only if some unusual circumstance, like substantial changes in value caused by market forces, will create an artificial result if the date of commencement is selected. ... [32] As to the family home, the evidence that have accepted is as of the date of application. There is nothing in the evidence that would lead to conclusion that the date of adjudication is to be preferred over the date of application. [33] As to the balance of the family property, I am again taken to the date of application. [34] I fixed July 19, 2005 (application date) for the valuation of the family home. For distribution purposes I fix that value at $94,621.77 as follows:Appraised value for SE ¼ & ptn. NE ¼ $101,600.00Less value ptn. NE ¼ ( 6,500.00)Less adjustment for 1.38 acres ( 478.23)Value for distribution $ 94,621.77 (b) Ptn. NE 27‑52‑05‑W3rd [35] Cory inherited this parcel from his father prior to the commencement of the spousal relationship. Cory claims it as exempt from distribution. Louise’s counsel in his written submission advises: “In this case the Respondent is not making any claim against the ptn. NE 27‑52‑05 W3rd”. Accordingly this parcel of land is not included in the family property to be distributed. (c) Division of other property [36] The parties are in agreement that other family property be divided equally between them. However, as indicated, there is dispute as to the composition of the remaining family property and their values. [37] do not have appraisal evidence as to values. have the evidence of Cory and Louise as to what each says is the value of the various items. In some instances Louise based her values on values from persons involved with that type of item, for example, tractor dealer, or from looking in catalogues. [38] Given the limited amounts involved and the costs of appraisals, understand why evidence was not provided in such fashion. accept that. However, must keep in mind that the evidence is not independent evidence; it is the evidence of the parties. Where the value is based on third party information, that party was not produced at trial in order that the value could be tested. Cory’s valuations are basically without explanation. They are his figures. Louise offers some explanation for her valuations, that she researched in order to arrive at the values she testified to at trial, and that this resulted in values higher and lower than those set out in her property statement at the outset of proceedings. (i) Household goods left in the house [39] Cory, in his property statement entered at trial at page 12, lists as divisible family property deepfreeze, kids’ beds, dressers, table and chairs. On the basis of Cory’s cross‑examination, find that he had other items but that he owned them prior to the commencement of the spousal relationship Cory did not give details as to what all these items were and their values. [40] Louise, in her evidence, detailed the items and their values. The items left in the house with Cory total $12,780 by Louise’s valuation. reduce that sum by 25 percent and arrive at valuation of $9,585 for the items of household goods left in the house with Cory. [41] will deal with the exemption claim when have completed my determination of what the family property is and its values. (ii) Household goods taken by Louise [42] Each party testified as to items of household goods that Louise took with her when she left the family home. There is dispute between them as to certain items taken and as to values. Cory arrives at total value, as of the time of the trial, of $8,000. Louise arrives at total value, as of the date of separation (May 21,2005, two months before the application) of $855. [43] Cory valued riding Yardman lawn tractor and bagger at $2,500. From the sales invoice it is clear that the lawn tractor was purchased at the end of May 2001 for $2,199 plus tax. Cory subsequently purchased bagger for it. Cory says the price now for new lawn tractor and bagger is $2,500. The tractor would have been four years old at the time of application. It may well be “practically brand new” now, but it is still used machine. cannot understand why assumably someone would want to pay new price for used machine, no matter how good its condition. While this unit is not household goods item, it certainly calls Cory’s valuations into question. [44] Cory also valued rocking chair at $800. From the sales invoice find the rocking chair was purchased mid December 1999 for $199 plus taxes. cannot accept his valuation. [45] do not consider Cory’s listing of household goods taken by Louise to have an air of reality to it, both as to contested items and as to values. prefer Louise’s evidence. Her value totals $855. increase that sum by 25 percent and arrive at valuation of $1,068.75 for the items of household goods that Louise took with her when she left the family home. (iii) Jewellery [46] Cory places value of $7,000 on Louise’s jewellery. Cory arrives at $7,000 on the basis that he paid $5,000 for her engagement and wedding ring. He made no effort to ascertain the value of her rings or other jewellery. [47] In her property statement filed at the outset of the proceedings, Louise placed value of $3,000 on her jewellery. Louise later made enquires. She says there is no jewellery store market for used engagement and wedding rings and that it would be necessary to go on the internet or to pawn shops to see if there was any such market or to sell the rings at pawn shop. Louise places sentimental value of $500 on the rings. [48] look to Louise’s evidence to find value. However, do not think it is appropriate to proceed by simply adjusting her sentimental value by 25 percent. am of the view that as part of her research, the internet and pawn shops should have been pursued. Doing the best can, fix the value of Louise’s jewellery at $2,000. (iv) Vehicles [49] There is blue F150 ½‑ton truck that Cory had owned prior to the commencement of the spousal relationship. He inherited it from his father. Without explanation he values the truck at $1,000. Louise values the truck at $1,500. She says when they were together, they were looking at trading it off and this is what they were quoted for value. In his written submission, Louise’s counsel acknowledges that the midpoint is $1,250. On that basis value the blue F150 truck at $1,250. [50] There is also 2001 Windstar van, and Cory places value of $10,000 on it. Cory says he was once offered $15,000 for it, and that at the time of their separation, the van was selling in newspapers for $10,000 to $15,000. He made no specific enquiries as to the value of the van. [51] Louise places value of $5,000 on the van. In July 2005, she obtained this value from Tom Naber, sales manager/owner of Ford dealership. Mr. Naber inspected the van. It had 145,000 kilometres on it. He valued it at $5,000. The evidence is silent as to the basis on which he arrived at his value. In her property statement (November 1, 2005) Louise, after “guesstimates from persons” swore value of $8,500 for the van. value the Windstar van at $8,500. (v) Sawmill [52] Cory values the sawmill and gooseneck trailer at $4,000. Louise, in her property statement, valued the sawmill at $2,000. Cory and Louise say they acquired the sawmill by trading truck plus $1,000. The transaction was in the late summer of 2004. Louise says that truck had been purchased for $3,000 and so she values the sawmill at $4,000. Cory acknowledges that the disposition of the truck is shown in his 2004 income tax return. note the value is shown as $3,000. Cory’s 2004 income tax return shows that he acquired sawmill valued at $4,000. Accordingly value the sawmill at $4,000. (vi) Gooseneck trailer [53] As indicated, Cory values the sawmill and the gooseneck trailer at $4,000. He says he has the bill of sale receipt for at home. He did not produce it at trial or disclose the document prior to trial. In cross‑examination Cory said he got fair deal on the trailer purchase and that the gooseneck trailer was worth $2,500 at the time of the purchase. He based this value on looking in newspapers. Based on the condition of the deck, Cory did not think the gooseneck trailer was worth $3,500 as of trial. [54] In her 2005 property statement, Louise valued the gooseneck trailer at $2,500. Louise examined the deck’s condition prior to their separation. She examined it again in October when she took photographs of the trailer. She took the photographs to the trailer dealership and told them about the trailer including the condition of the deck. She obtained value of $3,500 (November 14, 2006). Louise says that she values the gooseneck trailer at that value as of date of separation. reduce that sum by 25 percent and value the gooseneck trailer at $2,425. (vii) MF 135 285 tractors [55] Cory owned these tractors prior to the commencement of the spousal relationship. He claims them as exempt. The tractors had been in the family since Cory was child and he got them from his father. Counsel for Louise does not include these tractors in his written submission. take it therefore that there is no contest as to them being exempt, and do not include them in family property to be distributed. (viii) 1070 Case tractor [56] Cory purchased this tractor, used, from neighbour friend in 2003 for $8,500. He was aware that there was some “blow by”problem with the engine. Cory says the tractor has engine and tire problems. It was used around the farm for hauling hay for animal bedding, and for landscaping. It was also used in the field to pull cultivator. After separation it was used around the yard to move dirt and for landscaping. Cory placed value on the tractor as of time of trial at $3,000. [57] At trial Louise placed value of $9,000 on the tractor. Just prior to trial Louise attended at Martodam Motors to obtain value for the tractor. She told the salesman the year of and the hours on the 1070 Case tractor, that there was some “blow by” and that the tires were worn. Louise showed him photographs of the tractor and of the hours on the hour meter. These photographs were entered at trial. She was given written valuation of $9,000 which was entered into evidence. Louise adopted that valuation as the value she placed on the tractor. [58] The Martodam valuation is based on the tractor having been used for 5,979 hours. Five thousand nine hundred seventy‑nine is certainly the number of hours shown on the tractor’s hour meter as is set out in the photograph shown to the salesman. In cross‑examination Cory initially said that the hour meter had between 8,000 and 9,000 hours on it and that the meter was broken. Later in cross‑examination Cory said that when he bought the tractor from his neighbour, he was told that the hour meter had been broken for long time and the neighbour figured the tractor had between 8,000 to 9,000 hours on it when Cory purchased it from him. have reviewed my notes of Cory’s evidence. am unable to determine the number of hours that Cory says would have been on the tractor either at the time of application or at trial. do accept that the meter was broken. [59] Cory’s valuation is simply that. His value is without explanation as to how he arrived at that value. note that he never had anyone value the tractor for him, and never took it to repair shop to be looked at or repaired. [60] In her November 1, 2005, property statement, Louise swore to value of $5,000 for the tractor. At trial Louise explained this lower value on the basis that she had access to Cory’s statement at the time, she looked at his numbers and tried to put her numbers close to or halfway equal to his, and that she did subsequent research, and this proved not to be the case. [61] am unable to accept either party’s value for the tractor. Under the circumstances must determine fair market value that consider to be reasonable. do note that in his written submission, Cory’s counsel acknowledges that Cory’s $3,000 value may be low and that value of $5,000 or $6,000 was appropriate. place value of $6,000 on the tractor. (ix) Riding Yardman lawn tractor [62] Cory valued riding Yardman lawn tractor and bagger at $2,500. From the sales invoice it is clear that the lawn tractor was purchased at the end of May 2001 for $2,199 plus tax. Cory subsequently purchased bagger for it. Cory says the price now for new lawn tractor and bagger is $2500. The tractor would have been four years old at the time of application. Louise says that at the date they separated she sought information from the store where the riding Yardman lawn tractor was purchased as to its value. She was given value of $500 and that is the amount she values the tractor at. have no evidence from anyone as to the original cost of the bagger or of its subsequent value. Doing the best can, determine the value of the riding Yardman lawn tractor and bagger, by increasing the Louise’s value for the tractor by 25 percent and then adding on $100 for the bagger. therefore value the riding Yardman lawn tractor and bagger at $725. (x) Ice auger [63] In cross‑examination Cory acknowledged the existence of an ice auger. He agreed it was worth around the $400 mark somewhere. Louise values it at $400. increase the value by 25 percent and value the ice auger at $500. (xi) Boat motor and trailer [64] Cory made no mention of the boat, motor and trailer in the property portion of his financial statement, nor in his evidence‑in‑chief. In cross‑examination he acknowledged the existence of this item. He had bought SeaDoo in 1997 and had traded it for the boat and motor in 2001. He later made trailer for it. Cory says the boat, motor and trailer are probably worth $2,000 to $2,500. [65] Louise, in her 2005 property statement, valued the boat and motor at $1,500. She acknowledges that this value of $1,500 was to the best of her knowledge and belief. have no evidence as to how she arrived at this value. Louise took photographs of the boat, motor and trailer in October 2006 and then obtained information from boat dealer that the approximate value of the unit was $2,500. Louise values the unit at $2,500. In light of Cory valuing the unit as of trial at $2,000 to $2,500, value the unit as of date of application at $2,250. [66] Arising from the written submission of Cory’s counsel, there is an exemption issue which will deal with later on. (xii) Cory’s income tax refund from his 2004 return and received in 2005 [67] In the spring of 2005 Cory received an income tax refund of $5,647.11. Included in this refund was the sum of $1,350 as result of Louise transferring educational credits to him. Cory’s counsel, in his written submission, says that the tax refund was used to pay down debt owed by them. The evidence is clear that subsequent to separation, Cory certainly payed debts. However, the evidence is not clear as to role, if any, that this income tax refund played in the payment of debt. On balance of probabilities, am unable to find that the income tax refund was used for or had role in the payment of debt. consider the income tax refund of $5,647.11 to be family property. (xiii) Cheque from Weyerhaeuser [68] In cross‑examination Cory acknowledged that he had delivered lumber to Weyerhaeuser and month or so later got cheque for it. Cory initially said that the delivery was prior to their separation. He then said he did not know if the delivery was before or after separation. Cory did not recall Louise being with him when he delivered this particular load. Cory was uncertain as to the amount of the cheque, but thought it was around $1,500. Cory said he declared all the lumber sales on his 2005 income tax return. When shown the $2,800 line item on his income tax return, Cory said that this must have included lumber sold in the fall. Cory then said that he did not know if the amount he got for wood was included or not, but he was sure he hauled wood after they separated. [69] Louise says Cory was selling trim blocks to Weyerhaeuser. Trim blocks are the square blocks that go in between piles of lumber. Louise says that at the end of April 2005, they hauled load of trim blocks to Weyerhaeuser using the gooseneck trailer. They were not paid for the load at the time, but they knew how much they would be paid for it as they got printout as to how much they had hauled in and the amount they would be paid. That amount was $2,800. She was there when they got the printout. Louise says she does not have the printout, but that is her recollection. [70] must determine if the payment constitutes family property. When was the load delivered, when was payment made, and what was the amount of the payment? [71] In Lisitza Estate v. Van Oirschot (2003), 2003 SKQB 162 (CanLII), 234 Sask. R. (Q.B.), varied in part but appeal otherwise dismissed (2004), 2004 SKCA 21 (CanLII), 241 Sask. R. 300 (C.A.), said: [9] must deal with the conflict in the evidence, the credibility of the witnesses. [10] As have said previously: (Purdy v. Olson, 1996 CarswellSask 164 (Q.B.), at para. 40, [1996] S.J. No. 176, Q.B. No. 960 of 1993, J.C.S.; Hill v. Hill (1990), 1990 CanLII 7548 (SK QB), 88 Sask.R. 170 (Q.B.), at 174; Hannah v. Pollard (1991), 1991 CanLII 7676 (SK QB), 91 Sask.R. 67 (Q.B.), at 70): “Hrabinsky, J., dealt with the matter of assessing credibility in Grimwood v.Grimwood (1988), 1988 CanLII 5291 (SK QB), 68 Sask.R. 179, at p. 184: ‘.. However, where there is conflict of evidence, as is the case here, the credibility of witnesses cannot be determined solely on the demeanour of the witnesses even where they testify before the presiding judge. refer to the decision of O’Halloran, J.A., in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] D.L.R. 354, where at pp. 356‑357 there is the following: “If trial judge’s finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with purely arbitrary finding and justice would then depend upon the best actors in the witness box. On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of the evidence of witness. Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility, and cf. Raymond v. Bosanquet (1919), 1919 CanLII 11 (SCC), 50 D.L.R. 560, at p. 566; 59 S.C.R. 452, at p. 460, 17 O.W.N. 295. witness by his manner may create very unfavourable impression of his truthfulness upon the trial judge, and yet the surrounding circumstances in the case may point decisively to the conclusion that he is actually telling the truth. am not referring to the comparatively infrequent cases in which witness is caught in clumsy lie. “The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of witness in such case must be its harmony with the preponderance of the probabilities which practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can court satisfactorily appraise the testimony of quick minded, experienced and confident witnesses, and of those shrewd persons adept in the half‑lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth. Again witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For trial judge to say ‘I believe him because judge him to be telling the truth’, is to come to conclusion on consideration of only half the problem. In truth it may easily be self‑direction of dangerous kind.”’” [72] Louise’s evidence is of specific occasion, with specific events. Cory’s evidence contains uncertainty as to date and amount. find that the delivery took place prior to separation, and that the amount owed to them was $2,800. The payment received by Cory in that amount constitutes family property. (xiv) Cory’s Weyerhaeuser pension [73] Cory started working at the Big River Lumber plant of Weyerhaeuser on January 24, 2000, and continued working there until he was laid off as of April 19, 2006, due to an indefinite plant shut down. Cory contributed to pension plan while working at the plant. He is entitled at age 65 to pension of $339.25 per month based on 5.9 years of credited service. [74] The issue is what portion of the pension is family property. Cory’s counsel submits that: (i) the portion of the pension earned from the date of marriage (August 2002) to date of separation (May 2005) should be divided equally, with 50 percent thereof being transferred to Louise; and (ii) the portion earned before the date of the marriage (August 2002) and after the date of separation (May 2005) should remain in the plan, with Cory only. Louise’s counsel submits that the pension should be divided equally between them from the date Cory commenced working for Weyerhaeuser at the Big River Lumber plant until the date the petition issued. [75] have found that the parties were living together by August 1, 1999. The definition of spouse in the Family Property Act includes: ... ... either of two persons who: ... (c) is cohabiting or has cohabited with the other person as spouses continuously for period of not less than two years; [76] And in Rimmer v. Adshead, 2004 SKQB 536 (CanLII), 259 Sask. R. 161, Dawson J., at page 171‑172, said: [20] One of the issues to be determined is the period of the pension accumulation which is subject to division. The parties commenced cohabiting in March 1984. The Courts have, in number of cases, determined that where parties have cohabited, the appropriate commencement date for calculation of the division of assets is two years from the date the parties starting living together. see no reason to differ from that reasoning in this case. The pension benefits accumulated by John prior to March 1986 are exempt property pursuant to s. 23(1)(c) of The Family Property Act. The period of the pension benefits which are divisible is from March 1986 to the date of application. [21] The other issue is whether the pension should be divided other than equally, having regard to the fact that after the parties separated in October 1996 and John continued to contribute to the pension, thereby increasing its value. ... [23] ... Likewise, although John continued to contribute to the pension after the parties separated, during that period he continued to earn an income that was substantially greater than Donna’s and no spousal support was payable. During the period post‑separation to date John held the majority of the family assets without payment to Donna. In the circumstances of this case, do not find it unfair or inequitable to divide the pension equally. ... [77] consider the above quotations to have application to the matter before me. The parties separated May 21, 2005. The date of application is July 19, 2005. Cory would have contributed to his pension during this short period. From the evidence, the exact date of the commencement of the cohabitation is unknown. have found that the parties were living together by August 1, 1999. Taking all of that into account, do not find it unfair or inequitable to divide Cory’s pension for that period in question equally. [78] Accordingly do order that Cory’s pension accumulation, based on the period from August 1, 1999, to July 19, 2005, be divided equally between Cory and Louise and that Louise’s 50% entitlement be transferred to her at source. Leave is given to either party to apply to me or to any Judge of this Court if anything further is required in that regard. (xv) Severance package [79] The evidence before me is that there is no severance package available to Cory arising from his layoff. Assuming, without deciding that such severance package is family property, leave is granted to either party, upon the granting of severance package to Cory, to bring an application before me or before any Judge of this Court to have the matter determined and, if applicable, divided. (xvi) Equipment [80] Cory says he has miscellaneous equipment, discers, etc. which he valued at $1,000. In his written submission, Cory’s counsel raises an issue of exemption. In the property portion of his financial statement, under property exempt from distribution, Cory did list equipment. Cory did not lead evidence as to the history of the equipment. Louise led no evidence with respect to this equipment. have no knowledge as to condition, age, etc. Louise’s counsel does not deal with equipment in his written submission. Accordingly consider the equipment to be exempt. (xvii) Cory’s tools [81] In the property portion of his financial statement, Cory lists table saw, router table, deepfreeze, kids’ beds, dressers, table and chairs, and places value of $1,500 for all of them as of trial. Cory provided no explanation for his values. Cory’s counsel, in his written submission, says value of $1,500 should be used for the table saw and router table. [82] Louise values the table saw at $1,200, and the router table (router and router mount) at $300. Louise also prepared listing of Cory’s other tools that she says he had and values them at $2,000. Louise says she looked through tool catalogues to arrive at her cash values as of date of separation. As of the date of application, value the table saw at $1,200 and the router table at $300. reduce the other tools value by 25 percent and value the other tools at $1,500. (xviii) Cows and calves [83] must first determine if all of the cattle in question belonged to Cory and Louise. find as fact that four of the cattle bore the brand of Louise’s parents, and that these cattle were not given to Cory and Louise as gift. These cattle were placed with Cory and Louise as breeding stalk, and they were entitled to all offspring. [84] Cory valued all the cattle at $9,500. Reducing this total for these four cattle (two heifers at $1,600 and two cows at $1,000), Cory’s valuation is $6,900 for the remaining cattle. [85] Louise took all the cattle with her upon separation. Louise values the remaining cattle at $4,435 as of the date of separation. She attended at Heartland Livestock Services and told them about the cattle and obtained valuation in that sum from them. [86] am not prepared to fully accept either valuation. Cory has been involved with cattle all his life. He last sold cattle in 2004. He was not familiar with exact cattle prices in May 2005. Louise’s valuation is based on the value she obtained from Heartland. That value, in turn, is based on what Louise told them. do note and accept Louise’s evidence that May 2005 market values were bad due to BSE (mad cow disease). As of the date of application, value the cattle that belonged to Cory and Louise at the midpoint of their values, namely, $5,667.50. (xix) Louise’s horse [87] Louise had horse which she had owned prior to the commencement of the spousal relationship. Cory acknowledges that it is exempt. Accordingly it is not included in the family property. (xx) Chickens and turkeys [88] Chickens and turkeys were purchased from hatchery on April 12, 2005, for $180.67. They were not purchased for resale but were to be butchered at later time for family consumption. [89] Louise took the chickens and turkeys with her upon separation. They were then about six weeks old. Cory, in the property portion of his financial statement, lists the chickens and turkeys and values them at $1,500. The chickens and turkeys are family property. value them as of the date of application at $180.67. Determination of family property (excluding agreed exemptions) Cory Louise has/had has/had Family home (SE 27‑52‑05‑W3rd) 94,621.77 Household goods left in house 9,585.00 Household goods taken by Louise 1,068.75 Jewellery 2,000.00 Blue F150 ton truck 1,500.00 Windstar van 8,500.00 Sawmill 4,000.00 Gooseneck trailer 2,425.00 1070 Case tractor 6,000.00 Riding Yardman lawn tractor 725.00 Ice auger 500.00 Boat, motor trailer 2,250.00 Income tax refund 5,647.11 Weyerhaeuser cheque 2,800.00 Table saw 1,200.00 Router table 300.00 Other tools 1,500.00 Cattle 5,667.50 Chickens turkeys 180.67 $132,328.88 18,141.92 Total $150,470.80 *# (* plus Cory’s pension for the period from Aug 1, 1999 to July 19, 2005) (# leave granted to apply re Cory’s severance package if one comes into being) Determination of opposed exemptions [90] In Gaetz v. Gaetz (1996), 1996 CanLII 5033 (SK CA), 144 Sask. R. 268 (C.A.), the Court of Appeal considered s. 23(1)(c) of The Matrimonial Property Act, S.S. 1979, c. M‑6.1, repealed, and the definition of “household goods” in that Act. The Court held that: (i) as to household goods previously acquired, absent s. 40 agreement, there was no exemption; (ii) vehicles used for transportation came within the definition of household goods and even if previously acquired there was no exemption; (iii) boat, motor and trailer used for recreation came within the definition of household goods and even if the boat, motor and trailer had been obtained as result of trade of boat, motor and trailer previously acquired, there was no exemption. [91] look to the evidence. There is no s. 40 agreement. There is nothing in the evidence before me to suggest that the truck was not used for transportation or that its predominant use was for another purpose. There is nothing in the evidence to suggest that the boat, motor and trailer were not used for recreation or that the predominant use was for another purpose. Cory is the one raising the exemption claims. It is incumbent on him to lead evidence to support his claims. He has not done so. [92] None of the claims for exemption as to the (i) household goods left in the house; (ii) blue F150 ½‑ton truck; or (iii) boat motor and trailer, are made out. The family property remains as have set it out previously. Equitable considerations [93] Cory raises two issues: (a) whether he should be given credit for debt payments in the sum of $19,887.46 that he has made since separation; and (b) what is to be done with the outstanding debt, with Cory suggesting that portions of that debt be assigned to Louise. (a) Whether he should be given credit for debt payments in the sum of $19,887.46 that he has made since separation. [94] firstly look to the $19,887.46 sought to be credited. [95] am not, on balance of probabilities, satisfied that the following have been proven: (a) CIBC overdraft of $1,000; and (b) Debden C.U. of $500. [96] The $300 insurance bill for the van is not creditable item. Cory was uncertain what this debt was. Louise wanted Cory to transfer the van to her but he refused to do so for considerable period of time. Cory paid the insurance on the van while it was in his name. The insurance is an ongoing expense item. Further, Cory cannot claim credit for the insurance when he was refusing to transfer the van. [97] The applicable portion of the account at Debden Farm Sales (to May 21, 2005) totals $4,835.80, not $6,000.00 as claimed by Cory and not $4,868.80 as claimed by Louise. [98] consider property taxes ($1,000) and insurance on home and real property ($1,500) to be ongoing expenses and not pre‑existing debt. [99] find that Cory made the following debt payments: CIBC consolidated loan re vehicles 6,357.46 Debden Credit Union 3,230.00 Debden Farm Sales 4,835.80 Total $14,423.26 [100] In Guderyan v. Meyers, supra, Ryan‑Froslie J., commencing at paragraph 32, said: [32] Section 20 of The Family Property Act describes the purpose of the Act which is to distribute family property equally between spouses, subject to the exceptions, exemptions and equitable considerations mentioned in the Act. One of those equitable considerations is debts (s. 21(3)(o)). [33] Justice Jackson of the Saskatchewan Court of Appeal in Russell v. Russell, [(1999), 1999 CanLII 12313 (SK CA), 180 Sask. R. 196 (C.A.)], at paras. 109 to 110, discussed how debts should be dealt with in the division of family property as follows: [109] The phrase “matrimonial debt” does not appear in The Matrimonial Property Act. The only mention of debts in that Act is as factor in making an unequal distribution. Subsection 22(1) of the Act directs the court to have regard to debts or liabilities “pertaining to the matrimonial home,” but debts which do not pertain to the matrimonial home are only factor in making an unequal distribution under s. 21. If the Court is satisfied, having regard for number of factors enumerated in s. 21(2), that it would be unfair and inequitable to make an equal distribution, it may make any order pursuant to s. 21(2)(t) that it considers fair and equitable. The factors which the Court can consider include the following: 21(2) Subject to section 22, where, having regard to: (a) any written agreement between the spouses or between one or both spouses and third party; ... (e) the contribution, whether financial or in some other form, made directly or indirectly by third party on behalf of spouse to the acquisition, disposition, operation, management or use of the matrimonial property; ... (n) interests of third parties in the matrimonial property; (o) any debts or liabilities of spouse, including debts paid during the course of the marriage; ... (q) any other relevant fact or circumstance. Debts could be taken into account under any of the above clauses, but are specifically referred to in s. 21(2)(o). It should be noted that this clause does not mandate that “debts or liabilities” must be divided equally. [110] Like many other considerations under The Matrimonial Property Act, adjusting matrimonial property division for debts incurred during the marriage is matter left solely to the discretion of the trial judge. Obviously, that discretion must be exercised in fair and just fashion. There are, however, few additional constraints. [34] In applying s. 21, the court may make any order “.... it considers fair and equitable ...” in the circumstances. [101] am of the view that no credit should be given to Cory for the payments as have determined them to be, for the following reasons: (a) Cory has had possession of and has lived in the home on SE¼‑27‑52‑05‑W3rd since the date of separation and has paid no occupation rent; (b) Cory has had possession of the bulk of the remainder of the family property since the date of the separation; and (c) Cory has refused to pay and continues to refuse to pay spousal or child support absent court order. (b) What is to be done with the outstanding debt, with Cory suggesting that portions of that debt be assigned to Louise? [102] Louise’s counsel, in his written submission, acknowledges, that in order to obtain fairness the outstanding debt should be taken into account. [103] The outstanding debt is as follows: CIBC consolidated loan re vehicles $10,901.55 Debden Credit Union 2,831.31 Total $13,732.86 [104] The CIBC loan is consolidation of two vehicle loans loan on the Windstar van that Louise has and loan on Ford F250 truck. Cory sold the F250 truck not long after separation with the proceeds going to the consolidated loan. have no evidence as to how much of the $10,901.55 owing to CIBC can be attributed to the Windstar. [105] The matter is best dealt with by an order that Cory shall assume and pay the outstanding debts totalling $13,732.86, being $10,901.55 to the CIBC and $2,831.31 to the Debden Credit Union, and he shall indemnify and save harmless Louise from any liability pertaining thereto. so order. Cory is to be credited with such sum by reducing the value of the family property attributed to him by $13,732.86 as follows: Value of family property attributed to Cory $132,328.88 Less outstanding debt to be paid by Cory 13,732.86 Adjusted value of family property attributed to Cory $118,596.02 Total adjusted value of family property attributed to Cory and Louise: Adjusted value of family property attributed to Cory $118,596.02 Value of family property attributed to Louise 18,141.92 Total adjusted value of family property attributed to Cory and Louise $136,737.94 Equalization payment [106] Each party is entitled to one half of $136,737.94, that is to say, $68,368.97. The amount of family property attributed to Louise is $18,141.92. Accordingly, Louise is to receive from Cory an equalization payment of $50,227.00 ($50,227.05 rounded). [107] Section 26 of The Family Property Act provides for effecting distribution pursuant to Part IV of the Act. am of the view that the appropriate order at this time is that the Cory pay to the Louise the sum of $50,227.00, with interest thereon at the rate of percent per annum, within 90 days of the date of this judgment. In the event that such payment is not made, leave is given to the Louise to bring an application before me or any Judge of this Court for further order directed to ensuring receipt by Louise of the sum of $50,227.00, together with interest as above. [108] To secure the monies so owing to Louise by Cory, Louise is now to register charge against the following land Surface Parcel #133153488, Reference Land Description: SE Sec 27 Twp 52 Rge 05 W3 Extension 0, as described on Certificate of Title 97PA08553. Upon payment of those monies to Louise, the charge created by this judgment is to be removed from the said land. [109] Additionally, and by way of equalization: (a) Louise is to receive one half of Cory’s pension for the period from August 1, 1999, to July 19, 2005, and that entitlement is now to be transferred to her at source; and (b) Leave is granted to either party to apply with respect to Cory’s severance package if one comes into being. [110] There shall be no order as to costs as the results of this action are mixed.

This judgment dealt with divorce and division of family property. At issue was the value of the matrimonial home and the balance of family property. HELD: Decree of divorce issued. Valuations of the family home and property were made, and exemptions and equitable considerations were addressed. Equalization payments were prescribed. As the results of the action were mixed, no costs were ordered.

2_2007skqb99.txt

Q.B. No. 03705 J.C. R. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF REGINA BETWEEN: PATRICIA MARGARET PEARSON RESPONDENT (PETITIONER and GLEN MARTIN PEARSON APPLICANT (RESPONDENT) Jeffrey G. Brick for the respondent (petitioner) Hal B. Wellsch for the applicant (respondent) FIAT ZARZECZNY J. May 19, 2000 FACTS [1] The applicant divorced husband applies to vary the spousal support provisions contained in a separation agreement dated June 18, 1975 (the "agreement) between he and the respondent, Patricia Margaret Pearson. By virtue of paragraph 4(a) of the agreement the parties agreed that the initial sum of $550.00 would be paid for spousal support and further agreed “the said payment shall continue until the wife remarries or dies, whichever date occurs the sooner”. The agreement provided for annual adjustments to the spousal amount payable based upon the increase in the Consumer Price Index for Regina-Saskatoon. The respondent asserts that the amount that should now be paid pursuant to the terms of the agreement exceeds $1,000.00. Although this was paid as the adjusted amount due in 1995 it was unilaterally reduced by the applicant to $627.55 per month in February of that year. [2] The applicant continues to pay this spousal support which (except for the unilateral reduction in 1995) he has been paying for in excess of 25 years in accordance with the terms of the agreement. The basis of the applicant’s variation application is that he is now 67 years old and retired. His retirement income is substantially less than was his employment income at the time that he entered into the agreement. The applicant also asserts that the respondent is now employed part-time and earns an income which was not the case at the time the agreement was entered into. [3] At the time the agreement was entered into this couple had five children, all of whom lived with the respondent and whom she raised. The separation agreement makes provision for child support payments. The children have now grown up and lead lives of their own. The respondent works part-time as clerk at Regina jewellery company and earns gross monthly income of $849.33 (including modest pension of $34.33 monthly). The respondent will be 64 years of age on July 1, 2000. She deposes that she lives in modest apartment in the north end of Regina and drives 1978 vehicle which is in need of repair. [4] The applicant is graduate professional engineer and was the founder and partner in an engineering firm in Saskatchewan. He had always earned a considerable income although he deposes to a number of substantial business investment losses in the United States. He has holding company through which he had provided computer sales and consulting services, business he has substantially wound down and from which he expects little or no income this year and into the future. He deposes to total gross monthly income of $2,674.00. He has locked-in pension with an asset value of $215,000.00 and house worth approximately $126,000.00 (with mortgage of $54,000.00 which he co-owns with his present wife). He married approximately two years ago. [5] In trilogy of cases the Supreme Court of Canada concluded that in order for court to vary support provisions in valid settlement or separation agreement or consent order, material or radical change in circumstances causally connected to the marriage needs be established. [6] The decree nisi for divorce dated September 26, 1977, incorporated the support provisions of the separation agreement. In the Saskatchewan Court of Appeal decision of Masters v. Masters (1991), 1991 CanLII 8022 (SK CA), 93 Sask. R. 241, the court upheld the dismissal of an application to vary spousal support order contained in divorce decree on the same basis as the Supreme Court trilogy namely; the failure of the applicant to establish radical unforeseen change in circumstances causally connected to the marriage. (See also Remenda v. Remenda (1996), 1996 CanLII 7102 (SK QB), 142 Sask. R. 313 (Q.B.) and Ireland v. Gessner (1996), 1996 CanLII 6848 (SK QB), 150 Sask. R. 298 (Q.B.)). [7] The retirement of one or other of these parties was reasonably foreseeable at the time that they entered into the terms of the separation agreement. It was also foreseeable that retirement income is most often less than employment income. The applicant clearly has a higher and better standard of living than the respondent. As the financial calculations submitted by the respondent demonstrates, the applicant’s net disposable income after tax and after deduction of the current support payment ($627.00) is $1,548.00 whereas the respondent’s net disposable income is $1,218.00 after receiving the taxable support payment of $627.00. [8] The agreement between the parties, in its preamble, clearly expresses the intention of the parties when they made it, namely; "that there shall be a complete, final and effective settlement of their respective rights". The retirement of the applicant and the reduction of his income as a consequence is or was reasonably foreseeable at the time the agreement was entered into. The fact it has now occurred is not that kind of radical unforseen change in circumstance required to be established upon the authorities to support the variation application. Nor am I persuaded that the respondent's modest income provides any proper ground for variation of the agreement. She still has a much lower standard of living than the applicant even after taking into account the amount she is receiving as spousal support. [9] In all the circumstances and for the reasons stated the variation application is dismissed with costs to the respondent.

FIAT. The husband seeks to vary the spousal support provisions of the parties' 1975 separation agreement. This agreement held that the sum of $550 (adjusted for inflation) is to be paid to the wife until she dies or remarries, whichever comes first. The applicant paid this amount (except for a unilateral deduction in 1995) for over 25 years. The basis of his application is that he is now retired and earning less income. In addition, the respondent now earns part-time income that she did not have at the time of the agreement. At the time of the agreement, the wife raised the couple's five children and received child support from the applicant. HELD: The application is dismissed with costs to the respondent. The SCC has held that in order for a Court to vary support provisions in a valid settlement, separation agreement or consent order, a material or radical change in circumstances causally connected to the marriage needs to be established. Retirement of one of the parties was reasonably foreseeable at the time they entered into the agreement. It was also foreseeable that retirement income is most often less than employment income. This is not the kind of radical unforeseen change in circumstance required to vary the support. The preamble of the parties' agreement states that they intended it to be a complete and final settlement. The applicant has always earned considerable income and continues to have a better standard of living than the respondent. The respondent's modest income does not provide grounds to vary the agreement as she still has a much lower standard of living that the applicant, even after receiving the spousal support.

c_2000skqb232.txt

QUEEN’S BENCH FOR SASKATCHEWAN 2017 SKQB 144 Date: 2017 05 18 Docket: QBG 254 of 2016 Judicial Centre: Battleford BETWEEN: NICOLE PORTERFIELD and RONI MARIE PIROT and RONALD MICHAEL PIROT and MICHAEL PIROT Counsel: Justin M. Luddington for the applicants Paula Bittman for the respondents DECISION MESCHISHNICK J. May 18, 2017 [1] Nicole Porterfield [Nicole] and Roni Marie Pirot [Roni] [Applicants] are sisters. They apply for partition and sale of lake front recreational property [Property] owned by them together with their Father Ronald Michael Pirot [Ronald] and their brother, Michael Pirot [Michael] [Respondents] at Cochin Saskatchewan. [2] Each of the parties owns an undivided one quarter interest as tenants in common in the Property. [3] The parties inherited the Property from Ronald’s mother after her passing in 1996. The lot was wedding gift to her and her husband in 1931 from her father-in-law who had acquired the land in 1928. [4] Nicole now resides in Edmonton. Roni resides in Winnipeg. It is not obvious from the material where Michael resides. His title shows his address as General Delivery, Cochin, Saskatchewan. [5] The Property is located next door to another that until recently was the permanent residence of the Applicants’ parents. They are now separated. Ronald no longer resides at the next door property and says that as result of the separation it may have to be sold. Ronald does not reside on the Property the evidence suggesting he has other properties in Cochin and Arizona. [6] Ronald says that the Property is “family” property and the only meaningful property left from his mother. He says that it has considerable tangible and intangible value because of its history which includes being the meeting place for the extended family since 1948. Ronald says that it was his mother’s wish that the Property remain in the family for its use and enjoyment. He is of the same view. He says that it was not his mother’s intention that the parties sell the Property to realize on its capital value. [7] Ronald says that currently neither he nor Michael are in position to purchase the Applicants interest in the Property. [8] Ronald also says that he has contributed approximately $40,000 in materials and $40,000 in time to maintain and improve the Property and that these contributions are over and above the contributions of the others. Ronald is of the opinion that these improvements have added to the value of the Property. He says he was under no obligation to provide these materials or work and did so only on the expectation that the Property would remain in the family for the use of his children and grandchildren. [9] The Applicants disagree with Ronald’s estimates of the value of the materials and the time he has spent on maintenance and improvements. They also point out that the Property has been rented when not being used and that until 2012 Ronald and the Applicants mother, Lynn, were responsible for renting the Property. They used the rental income for taxes, utilities and maintenance and did not provide any accounting. In 2012 Nicole took over managing the rental of the Property and 2016 was the first time that surplus has been generated from the rentals although final accounting of the expenses relating to the Property has not yet been finalized. The Applicants do clarify though that at no time have they ever received for their personal use any of the proceeds from the rental of the Property. [10] The Applicants also point out that they have never been provided with an accounting of the costs of the maintenance and improvements that Ronald is now claiming nor until the Applicants pursed their desire to realize on their interest did he ever make claim for reimbursement of his contributions. [11] In addition, the Applicants attest that they too have had hand in maintaining and improving the Property having taken on or assisting with various maintenance and improvement projects. [12] Finally, the Applicants contest that the improvements made to the Property have been responsible for increasing its value. The cabin on the Property was built in the 1930’s. In their opinion the current value of the Property is founded on the demand for lake front lots. [13] It is clear that there is factual dispute about the value of Ronald’s contributions and whether they have increased the market value of the Property. What will be called upon to decide at this point is whether the legal issues raised by Ronald if decided in his favor would block the Applicants request for partition and sale of the Property. The Partition Act [14] The Partition Act, 1868, 31 32 Vict, 40 [UK] [Act] continues to apply in Saskatchewan. Grunert Grunert (1960), 1960 CanLII 230 (SK QB), 32 WWR (NS) 509 (Sask QB), Wiebe 101105260 Saskatchewan Ltd., 2013 SKQB 440 (CanLII), 435 Sask 79 [Wiebe]. It contains three sections which the Respondents say are germane to the issues they raise: 3. In Suit for Partition, where, if this Act had not been passed, Decree for Partition might have been made, then if it appears to the Court that, by reason of the Nature of the Property to which the Suit relates, or of the Number of the Parties interested or presumptively interested therein, or of the Absence or Disability of some of those Parties, or of any other Circumstance, Sale of the Property and Distribution of the Proceeds would be more beneficial for the Parties interested than Division of the Property between or among them, the Court may, if it thinks fit, on the Request of any of the Parties interested, and notwithstanding the Dissent or Disability of any others of them, direct Sale of the Property accordingly, and may give all necessary or proper consequential Directions. 4. In Suit for Partition, where, if this Act had not been passed, Decree for Partition might have been made, then if the Party or Parties interested, individually or collectively, to the Extent of One Moiety or upwards in the Property to which the Suit relates, request the Court to direct Sale of the Property and Distribution of the Proceeds instead of Division of the Property between or among the Parties interested, the Court shall, unless it sees good Reason to the contrary, direct Sale of the Property accordingly, and give all necessary or proper consequential Directions. 5. In Suit for Partition, where, if this Act had not been passed, Decree for Partition might have been made, then if any Party interested in the Property to which the Suit relates requests the Court to direct Sale of the Property and Distribution of the Proceeds instead of Division of the property between or among the Parties interested, the Court may, if it thinks fit, unless the other Parties interested in the Property, or some of them, undertake to purchase the Share of the Party requesting Sale, direct Sale of the Property, and give all necessary or proper consequential Directions, and in case of such Undertaking being given the Court may order Valuation of the Share of the Party requesting Sale in such Manner as the Court thinks fit, and may give all necessary or proper consequential Directions. [15] If owners holding “One Moiety (a half interest) or more” request partition and sale s. directs that the court “shall, unless it seems good reason to the contrary, direct Sale of the Property” whereas if the owners requesting the relief hold less than half interest it is s. that operates. It directs that “if it appears that Sale of the Property and Distribution of the Proceeds would be more beneficial to the Parties then division of the Property between them the Court may, if it thinks fit direct Sale of the Property”. In either case if sale is directed the court may or shall “give all necessary or proper consequential directions” which may include, where one of the owners gives an undertaking to purchase the interest of the party requesting sale, valuation of the property. The Court’s Discretion Under the Act [16] The court’s discretion to refuse partition under s. is limited whereas under s. broader discretion exists. This necessitates determining whether it is s. or s. which operates in these circumstances. [17] The Respondents acknowledge that the Applicants hold “one moiety” of the legal title to the Property but argue that the contributions made by Ronald, through the operation of the principle of unjust enrichment and resulting or constructive trusts, entitle him to an equitable interest in the Property. If so, then his total legal and equitable interest will reduce the Applicants interest to less than one half which in turn will put the case into s. 3. [18] As mentioned earlier, the discretion to deny the Applicants the relief requested is limited if the application is to be determined under s. of the Act. Recently, this court has denied partition under this section where it would override the terms of an agreement for sale Matovich Matovich, 2013 SKQB 205 (CanLII), 421 Sask 266 [Matovich] or where, as in Wiebe, there existed an agreement that decisions regarding disposition of the property would have to be approved by two thirds majority. [19] Other reasons to deny request for partition and sale under s. are found in earlier case law. They are summarized in Matovich in paras. 24 The law respecting partition is set out succinctly in Coburn v. Coburn (1984), 1984 CanLII 2235 (SK QB), 36 Sask.R. 41, [1984] S.J. No. 550 (QL) (Q.B.), wherein Geatros J. states in para. ... joint tenant has prima facie right to partition or sale and the court will compel such partition or sale unless justice requires that such an order should not be made. ... 25 Geatros J. also deals with this matter in Reed v. Reed(1985), 1985 CanLII 2388 (SK QB), 40 Sask.R. 289, 40 R.P.R. 90 (Q.B.), wherein he states at para. [18] The judgment of Craig, J., in Reitsma v. Reitsma, 1974 CanLII 1786 (BC SC), [1975] W.W.R. 281 is most helpful in determining whether the plaintiff is precluded from determining the joint tenancy by an action for partition. Craig, J., stated at p. 283: “There are numerous authorities for the proposition that joint tenant has prima facie right to partition or sale at any time. The court has discretion to refuse partition, but this discretion is ‘severely limited’: see Bergen v. Bergen (1969), 1969 CanLII 1071 (BC SC), 68 W.W.R. 196 (B.C.), and the cases therein referred to. The plaintiff must come into court ‘with clean hands’: McGeer v. Green (1960), 1960 CanLII 345 (BC SC), 22 D.L.R. (2d) 775, at 779 (B.C.). In seeking partition, the plaintiff must not be motivated by malice, or by desire to be vexatious or oppressive. In partition cases, the word ‘oppressive’ means ‘oppressive economically’: Korolew v. Korolew (1972), R.F.L. 162, at 165 (B.C.)." He quotes at p. 284 what Seaton, J., said in Bergen v. Bergen,supra, at p. 199: “That the order would cause inconvenience and hardship to the defendant would not be sufficient reason to refuse the relief sought”. And, later Craig, J., said: “Hardship’ is relative term. It seems to me that before hardship can be basis for refusing partition order (to which the plaintiff is otherwise entitled) the hardship must amount to economic oppression.” [20] If this case is governed by s. the application will be allowed as cannot see anything in the evidence that suggests that the Applicants are motived by malice or are being vexatious as those terms have been interpreted in Reed Reed (1985), 1985 CanLII 2388 (SK QB), 40 Sask 289 (QB) at para 25 or that the result would be economically oppressive as that term has been interpreted and applied in such cases as Reitsma Reitsma, 1974 CanLII 1786 (BC SC), [1975] WWR 281 (BCSC). Unjust Enrichment and Trust Remedies [21] Turning then to the question of whether expenditures for upkeep and improvements by one joint owner can result in that owner establishing an equitable proprietary interest in property, first note that cases which dealt with claims for unequal contributions under the Act have made adjustments for these “equities” when distributing the sales proceeds. [22] For example, Justice Gabrielson in Wionzek Magyar, 2013 SKQB 194 (CanLII) at para 48, 421 Sask 102 relied on academic authority: 48 In the text by Anne Warner La Forest, Anger Honsberger Law of Real Property, 3rd ed., looseleaf (Aurora, Ont.: Canada Law Book Inc., 2012) vol. at 14-28.1, it is stated: s.14:20.140 Joint Tenancy Partition or Sale by Court Order ... The general rule in accounting is that joint tenant, unless ousted by his co-tenant, cannot sue him for use and occupation but, if the joint tenancy is terminated by court order for partition or sale, the court may make all allowances and should give such directions as will give complete equity to the parties. What is equitable depends on the circumstances of each case. If the occupying tenant claims for upkeep and repairs, the court, as term of allowing the claim, usually requires him to submit to an allowance for use and occupation. If one tenant has made improvements which increased the selling value, the other tenant cannot take advantage of the increase without submitting to an allowance for the improvements and, if one tenant paid more than his share of encumbrances, he is entitled to an allowance of the excess. ... Although the reference was to valuation in circumstances of joint tenancy, at page 14-37 (s.14:30.140), the author confirms that the same principles apply in respect to partition or sale by court order in respect to tenancies in common such as was found here. [23] similar approach was followed in McNabb Fortin (1999), 1999 CanLII 12750 (SK QB), 183 Sask 150 (QB) at para 14 [McNabb] where Justice McLellan wrote: 14 The Court, when ordering the sale of the property, may also determine the equity of each joint tenant in the property by taking into account capital payments, improvements, surplus payments towards encumbrances on the property and use and occupation of the property. The Ontario Court of Appeal in Mastron v. Cotton, 1925 CanLII 464 (ON CA), [1926] D.L.R. 767 indicated that the court may make all just allowances and should give such directions as will do complete equity between the parties [24] The Mastron case (Mastron Cotton, 1925 CanLII 464 (ON CA), [1926] DLR 767 (Ont CA)[Mastron]) relied on by Justice McLellan in McNabb also summarized the circumstances when equity would make adjustments and when it would not: What is just and equitable depends on the circumstances of each case. For instance, if the tenant in occupation claims for upkeep and repairs, the Court, as term of such allowance, usually requires that the claimant shall submit to an allowance for use and occupation: Rice v. George (1873), 20 Gr. 221; Pascoe v. Swan (1859), 27 Beav. 508, 54 E.R. 201. Again, if one tenant has made improvements which have increased the selling value of the property, the other tenant cannot take the advantage of increased price without submitting to an allowance for the improvements: Leigh v. Dickeson, 15 Q.B.D. 60, per Cotton, L.J., at p. 67; 21 Hals., p. 851, para. 1595. And, once again, when, as here, one tenant has paid more than his share of encumbrances, he is entitled to an allowance for such surplus: Re Curry, Curry v. Curry (1898), 25 A.R. (Ont.) 267; 33 Corp. Jur., p. 909. These allowances being made as equitable allowances, there may as matter of course be circumstances under which they should not be made. For instance, the circumstances may indicate that the improvements were made or the surplus payments were made or intended to be made as gifts by one tenant to the other as by the husband for the benefit of the wife; and it may be that had the surplus payments in this case been made by the husband rather than by the wife the Court would, in the absence of something to show contrary intention, presume that they were gifts to the wife: Dunbar v. Dunbar, [1909] Ch. 639. [25] The point to be noted from these cases is that when applying the Act the equities that might result in an unequal division of the sale proceeds are taken into account after the sale and are not used to determine the ownership interest of title holder opposing partition and sale. [26] The question posed by the Respondents is whether this remains proper analysis in light of the developments in the law of unjust enrichment and resulting and constructive trusts starting with Pettkus Becker, 1980 CanLII 22 (SCC), [1980] SCR 834. The Respondents argue that if their evidence is accepted all requirements for finding of unjust enrichment will have been established and that the remedy of constructive or resulting trust will give the Respondents collectively an interest in the Property greater than 50%. If so the application will have to be considered under s. of the Act and not s. 4. [27] The question is good one and raises number of issues. will address two of them which in my view determine the issue. No Juristic Reason [28] One of the most recent clarifications in this area of the law from the Supreme Court of Canada is found in Kerr Baranow, 2011 SCC 10 (CanLII), [2011] SCR 269 [Kerr]. [29] In Kerr the court was clear that the law of unjust enrichment and the remedies flowing from it would not be applied differently in different areas of law saying: 33 The application of unjust enrichment principles to claims by domestic partners was resisted until the Court’s 1980 decision in Pettkus. In applying unjust enrichment principles to domestic claims, however, the Court has been clear that there is and should be no separate line of authority for “family” cases developed within the law of unjust enrichment. Rather, concern for clarity and doctrinal integrity mandate that “the basic principles governing the rights and remedies for unjust enrichment remain the same for all cases” (Peter v. Beblow, 1993 CanLII 126 (SCC), [1993] S.C.R. 980, at p. 997). [30] Justice Cromwell also addressed the availability of “common intention resulting trust” in these circumstances rejecting its application: 25 First, as the abundant scholarly criticism demonstrates, the common intention resulting trust is doctrinally unsound. It is inconsistent with the underlying principles of resulting trust law. Where the issue of intention is relevant to the finding of resulting trust, it is the intention of the grantor or contributor alone that counts. As Professor Waters puts it, “In imposing resulting trust upon the recipient, Equity is never concerned with [common] intention” (Waters’, at p. 431). The underlying principles of resulting trust law also make it hard to accommodate situations in which the contribution made by the claimant was not in the form of property or closely linked to its acquisition. The point of the resulting trust is that the claimant is asking for his or her own property back, or for the recognition of his or her proportionate interest in the asset which the other has acquired with [page290] that property. This thinking extends artificially to claims that are based on contributions that are not clearly associated with the acquisition of an interest in property; in such cases there is not, in any meaningful sense, “resulting” back of the transferred property: Waters’, at p. 432. It follows that resulting trust based solely on intention without transfer of property is, as Oosterhoff puts it, doctrinal impossibility: “... resulting trust can arise only when one person has transferred assets to, or purchased assets for, another person and did not intend to make gift of the property”: p. 642. The final doctrinal problem is that the relevant time for ascertaining intention is the time of acquisition of the property. As result, it is hard to see how resulting trust can arise from contributions made over time to the improvement of an existing asset, or contributions in kind over time for its maintenance. As Oosterhoff succinctly puts it at p. 652, resulting trust is inappropriate in these circumstances because its imposition, in effect, forces one party to give up beneficial ownership which he or she enjoyed before the improvement or maintenance occurred. [31] Justice Cromwell then went on to consider unjust enrichment and, if it is found to exist, when the remedy of constructive trust should be granted. [32] Without determining whether the first two elements of unjust enrichment could be established in this case will focus on the third element as it seems to me it is an area that will upend the Respondents argument. [33] In Kerr the court in reviewing and applying previous authority from that court said this about the third element: (2) Absence of Juristic Reason 40 The third element of an unjust enrichment claim is that the benefit and corresponding detriment must have occurred without juristic reason. To put it simply, this means that there is no reason in law or justice for the defendant’s retention of the benefit conferred by the plaintiff, making its retention “unjust” in the circumstances of the case: see Pettkus, at p. 848; Rathwell, at p. 456; Sorochan, at p. 44; Peter, at p. 987; Peel, at pp. 784 and 788; Garland, at para. 30. 41 Juristic reasons to deny recovery may be the intention to make gift (referred to as “donative intent”), contract, or disposition of law (Peter, at pp.990-91; Garland, at para. 44; Rathwell, at p. 455). The latter category generally includes circumstances where the enrichment of the defendant at the plaintiff's expense is required by law, such as where valid statute denies recovery (P.D. Maddaugh, and J. D. McCamus, The Law of Restitution (1990), at p. 46; Reference re Excise Tax Act (Canada), 1992 CanLII 69 (SCC), [1992] S.C.R. 445 (S.C.C.); Mack v. Canada (Attorney General) (2002), 60 O.R. (3d) 737 (Ont. C.A.)). However, just as the Court has resisted purely categorical approach to unjust enrichment claims, it has also refused to limit juristic reasons to closed list. This third stage of the unjust enrichment analysis provides for due consideration of the autonomy of the parties, including factors such as “the legitimate expectation of the parties, the right of parties to order their affairs by contract (Peel, at p. 803). 43 In Garland, the Court set out two-step analysis for the absence of juristic reason. It is important to remember that what prompted this development was to ensure that the juristic reason analysis was not “purely subjective”, thereby building into the unjust enrichment analysis an unacceptable “immeasureable judicial discretion” that would permit “case by case ‘palm tree’ justice”: Garland, at para. 40. The first step of the juristic reason analysis applies the established categories of juristic reasons; in their absence, the second step permits consideration of the reasonable expectations of the parties and public policy considerations to assess whether recovery should be denied: First, the plaintiff must show that no juristic reason from an established category exists to deny recovery [...] The established categories that can constitute juristic reasons include contract (Pettkus, supra), disposition of law (Pettkus, supra), donative intent (Peter, supra), and other valid common law, equitable or statutory obligations (Peter, supra). If there is no juristic reason from an established category, then the plaintiff has made out prima facie case under the juristic reason component of the analysis The prima facie case is rebuttable, however, where the defendant can show that there is another reason to deny recovery. As result, there is de facto burden of proof placed on the defendant to show the reason why the enrichment should be retained. This stage of the analysis thus provides for category of residual defence in which courts can look to all of the circumstances of the transaction in order to determine whether there is another reason to deny recovery. As part of the defendant’s attempt to rebut, courts should have regard to two factors: the reasonable expectations of the parties, and public policy considerations. [paras. 44-46] 45 Policy arguments concerning individual autonomy may arise under the second branch of the juristic reason analysis. In the context of claims for unjust enrichment, this has led to questions regarding how (and when) factors relating to the manner in which the parties organized their relationship should be taken into account. It has been argued, for example, that the legislative decision to exclude unmarried couples from property division legislation indicates the court should not use the equitable doctrine of unjust enrichment to address their property and asset disputes. However, the court in [page298] Peter rejected this argument, noting that it misapprehended the role of equity. As McLachlin J. put it at p. 994, “It is precisely where an injustice arises without legal remedy that equity finds role.” (See also Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83 (CanLII), [2002] S.C.R. 325, at para. [34] In the first step then if the party defending an unjust enrichment claim can show “disposition at law” which permits what might otherwise be an inequitable result there will be juristic reason to deny claim. In the second step it is available to the party defending the claim, when reasonable expectations and public policy are considered, to establish that juristic reason exists to deny the claim. This opens the door to consider the manner in which the parties organized their relationship and whether an injustice has arisen that without equity cannot be remedied. [35] An example of “disposition at law” that amounts to juristic reason for enrichment is found in the case dealing with the harsh consequences that follow even the inadvertent loss of registration of security agreement under Personal Property Security Act regimes. In KBA Canada, Inc. 3S Printers Inc., 2014 BCCA 117 (CanLII) [KBA] (leave to appeal to the SCC denied) the British Columbia Court of Appeal noted: 34 There are three elements that must be satisfied in order for claim in unjust enrichment to succeed: there must be an enrichment of the defendant, corresponding deprivation of the plaintiff, and an absence of juristic reason for the enrichment: Garland v. Consumers' Gas Co., 2004 SCC 25 (CanLII) at para. 30, citing Pettkus v. Becker, 1980 CanLII 22 (SCC), [1980] S.C.R. 834 at 848 and Peel (Regional Municipality) v. Canada, 1992 CanLII 21 (SCC), [1992] S.C.R. 762 at 784. 35 In the case before us, it is apparent that the inadvertent cancellation of KBA’s financing statement, through no fault of its own, resulted in it losing the priority of its security, and in Supreme Graphics and CIT gaining corresponding priority for theirs. accept, therefore, that the first two elements of the test for unjust enrichment are satisfied. The question is whether the statutory priorities scheme represents “juristic reason for the enrichment”. [36] Then, after summarizing the case of Central Guaranty Trust Co. Dixdale Mortgage Investment Corp. (1994), 1994 CanLII 1429 (ON CA), 24 OR (3d) 506 (Ont CA), decided by the Ontario Court of Appeal, the court in KBA went on to discuss when “disposition at law” provides juristic reason: 37 Supreme Graphics notes that Central Guaranty Trust was decided twenty years ago, and says that it has been overtaken by developments in the law of restitution. In particular, it says that the Supreme Court of Canada’s analysis of “juristic reason” in Garland must be considered. In Garland, Iacobucci J., for the Court, said this about “juristic reason”: [44]... [In] the proper approach to the juristic reason analysis..., the plaintiff must show that no juristic reason from an established category exists to deny recovery. By closing the list of categories that the plaintiff must canvass in order to show an absence of juristic reason, Smith’s objection [L. Smith, “The Mystery of ‘Juristic Reason”, (2000), 12 S.C.L.R. (2d) 211] to the Canadian formulation of the test that it required proof of negative is answered. The established categories that can constitute juristic reasons include contract (Pettkus, supra), disposition of law (Pettkus, supra), donative intent (Peter [Peter v. Beblow, 1993 CanLII 126 (SCC), [1993] S.C.R. 980], supra), and other valid common law, equitable or statutory obligations (Peter, supra). If there is no juristic reason from an established category, then the plaintiff has made out prima facie case under the juristic reason component of the analysis. 38 Justice Iacobucci elaborated on "disposition of law" as juristic reason for an enrichment: [49] Disposition of law is well established as category of juristic reason. In Rathwell [Rathwell v. Rathwell, 1978 CanLII (SCC), [1978] S.C.R. 436], supra, Dickson J. gave as examples of juristic reasons “a contract or disposition of law” (p. 455). In Reference re Goods and Services Tax, 1992 CanLII 69 (SCC), [1992] S.C.R. 445 (“GST Reference”), Lamer C.J. held that valid statute is juristic reason barring recovery in unjust enrichment. This was affirmed in Peter, supra, at p. 1018. Most recently, in Mack v. Canada (Attorney General) (2002), 60 O.R. (3d) 737, the Ontario Court of Appeal held that the legislation which created the Chinese head tax provided juristic reason which prevented recovery of the head tax in unjust enrichment. In the leading Canadian text, The Law of Restitution [Peter D. Maddaugh and John D. McCamus, The Law of Restitution (Aurora, Ontario: Canada Law Book, 1990)], supra, McCamus and Maddaugh discuss the phrase "disposition of law" from Rathwell, supra, stating, at p. 46: ... it is perhaps self-evident that an unjust enrichment will not be established in any case where enrichment of the defendant at the plaintiff's expense is required by law. It seems clear, then, that valid legislation can provide juristic reason which bars recovery in restitution. 39 Garland did not, itself, concern statutory provision. In Gladstone v. Canada (Attorney General), 2005 SCC 21 (S.C.C.) (CanLII), however, the Supreme Court dealt with the question of whether an allegedly unjust enrichment was justified by statutory disposition. In that case, the Crown had seized herring spawn on kelp allegedly harvested in violation of the Fisheries Act, R.S.C. 1985, c. F-14. When charges were eventually stayed, it paid the proceeds of sale of the herring spawn to the respondents. The respondents claimed entitlement to interest, as well, and relied on the doctrine of unjust enrichment. The Supreme Court denied recovery, on the basis that the matter was governed by statute: [19] In the case at bar, the seizure, sale, and return of the proceeds were all done pursuant to the Fisheries Act. The statute provides for the return of any fish, thing, or proceeds realized from its disposition. This is what happened. Any residual gain or loss is ancillary. Relying upon such statutory basis fall within the "disposition of law" category of juristic reason.... 42 In my view, the PPSA’s priorities provisions constitute clear juristic reasons for the enrichment in this case. The PPSA comprehensively governs priority among creditors, and the judge erred in finding that the doctrine of unjust enrichment could be used to navigate around the clear statutory provisions. [37] At the core of the rule set out in these authorities is the notion that if the result in case is governed by valid statute unjust enrichment cannot be employed to change the result. As noted earlier, the Act is in force in Saskatchewan. The cases like Mastron which have interpreted it and, in particular, the phrase “give all necessary and proper consequential directions” as found in s. have concluded that the Act already provides an “unjust enrichment” like remedy but explicitly provides that the remedy shall only be invoked in the disposition of the proceeds of sale. In other words, the Act does not allow the equitable principles of unjust enrichment and constructive trust to operate to create proprietary interest. [38] In my view the same result flows when looking for juristic reason under the second step. In this case the parties became equal owners of the Property by inheritance. They became owners of undivided interests at tenants in common. They did not have choice in formulating their legal relationship. It was decided for them by Ronald’s mother. [39] In addition, by Ronald’s own admission, he says at para. 25 of his affidavit that he undertook to maintain and upgrade the Property not with the expectation of being compensated or acquiring greater interest but with “… the reasonable expectation that the cabin would remain in the family for my use and benefit, and the use and benefit of my children and grandchildren”. [40] Since the parties did not participate in formulating their relationship it could only have been the expectations Ronald’s mother at the time of making her will that influenced her decision. If indeed Ronald’s mother had desire to have the Property stay in the family she should have considered using an express trust which in turn would have been subject to the law limiting its application and duration. [41] Furthermore, at the heart of this second step analysis is the principle that there must be an injustice without remedy before equity will intervene. This is case for partition and sale under the Act. The Act, as noted above, provides a remedy but it is a monetary remedy and not a proprietary one. [42] Since the Act has directed how and when the equities between the parties will be determined there is juristic reason why Ronald cannot succeed outside the Act in claim for unjust enrichment. And, without that finding he cannot get to remedy in constructive trust, and without that remedy he cannot establish an ownership interest in the Property greater than his legal interest of an undivided one quarter. Monetary Remedy Sufficient [43] Even if Ronald could succeed in establishing claim for unjust enrichment there is another reason why he cannot succeed. Just because claim is made out for unjust enrichment proprietary remedy does not always follow. The first remedy to consider is always monetary award, Kerr in para 47, relying on Peter Beblow, 1993 CanLII 126 (SCC), [1993] SCR 980 (WL) [Peter]. Kerr also directed that: 52 The plaintiff must also establish that monetary award would be insufficient in the circumstances (Peter, at p. 999). In this regard, the court may take into account the probability of recovery, as well as whether there is reason to grant the plaintiff the additional rights that flow from recognition of property rights (Lac Minerals, at p. 678, per La Forest J.). [44] In Peter, Madame Justice McLachlin (as she was then) (La Forest, Sopinka and lacobucci JJ. concurring) stated: 28 Nor does the distinction between commercial cases and family cases on the remedy of constructive trust appear to be necessary. Where monetary award is sufficient, there is no need for constructive trust. Where monetary award is insufficient in family situation, this is usually related to the fact the claimant’s efforts have given her special link to the property, in which case constructive trust arises. 34 To summarize, it seems to me that the first step in determining the proper remedy for unjust enrichment is to determine whether monetary award is insufficient and whether the nexus between the contribution and the property described in Pettkus v. Becker has been made out. If these questions are answered in the affirmative the plaintiff is entitled to the proprietary remedy of constructive trust. In looking at whether monetary award is insufficient the court may take into account the probability of the award’s being paid as well as the special interest in the property acquired by the contributions: per La Forest J. in Lac Minerals. The value of that trust is to be determined on the basis of the actual value of the matrimonial property the “value survived” approach. It reflects the court’s best estimate of what is fair having regard to the contribution which the claimant’s services have made to the value surviving, bearing in mind the practical difficulty of calculating with mathematical precision the value of particular contributions to the family property. [45] The very nature of this application protects Ronald. It is an application for sale and the distribution of the sale proceeds. If Ronald can establish that he is entitled to some amount for his maintenance and improvement costs he will be protected for that amount when the proceeds of sale are distributed. The recovery of successful claim is certain and there is no need for propriety award to protect him. This then becomes another reason why Ronald would not succeed in establishing constructive trust. Conclusion [46] As a result of this analysis I have concluded that this application is governed by s. 4 of the Act and that the Respondents have not established a circumstance which would allow me to deny the application. [47] I therefore order that the Property be sold. If the parties are unable to agree as to the process to be utilized to sell the Property they shall apply back to me for further directions. [48] I further order that the proceeds from the sale of the Property after the payment of all reasonable selling costs and the deduction of an amount necessary to protect Ronald’s claim can be paid to the parties equally. Any balance not paid to the parties shall be paid into court and not disbursed without further court order or the agreement of the parties. If the parties are unable to agree on the amount of the deduction necessary to protect Ronald’s claim the full amount of the proceeds of sale after the payment of all reasonable selling costs shall be paid into court and any party may apply back to me for further directions to settle the amount to be disbursed. [49] Finally, direct Ronald’s claim for the payment of his maintenance and improvement costs to trial. Ronald shall be the plaintiff in the action and the action shall be brought and proceed in accordance with The Queen’s Bench Rules. [50] The Applicants shall have one set of costs to be taxed against the Respondents. J. G.A. MESCHISHNICK

HELD: The application was granted. The court ordered that the property be sold and the proceeds of sale take into account the amount necessary to protect the respondent father’s claim. The Partition Act, 1868 applies in the province. It did not allow the equitable principles of unjust enrichment and constructive trust to operate to create a proprietary interest. The court found that s. 4 of the Act applied, which provides a monetary remedy so that if the respondent father could establish entitlement to some amount for his maintenance and improvement costs, he would be protected for that amount for his costs.

c_2017skqb144.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2017 SKQB 53 Date: 2017 01 03 Docket: CRM 100 of 2016 Judicial Centre: Regina BETWEEN: HER MAJESTY THE QUEEN and DEAN FRANKLIN LOMMERSE Restriction on Publication: There is court order prohibiting the publication or broadcast of any evidence tendered or submissions made in this application, including this decision, until the conclusion of the trial. Counsel: Maura Landry for the Crown Brian J. Smith for the accused JUDGMENT MEGAW J. JANUARY 3, 2017 INTRODUCTION [1] The accused has applied for relief pursuant to ss. 24(2) of the Canadian Charter of Rights and Freedoms [Charter] to exclude evidence seized through the execution of a search warrant. The actual evidence seized was not disclosed at the hearing. It is apparently located on either the accused’s laptop computer or his cell phone. [2] The application proceeded by way of voir dire. The Crown called evidence to amplify the statements set forth in the Information to Obtain Warrant to Search [ITO]. The admissibility of this evidence is in issue. [3] The accused called no evidence. He disputed the facial validity of the search warrant. He also argued his s. 8 Charter rights had been violated as a result of the search. [4] The determination of whether any evidence seized should be excluded was dependent on the decision on the above captioned issues. As result, argument on the exclusion of any evidence pursuant to ss. 24(2) of the Charter was to await the determination of these issues. BACKGROUND [5] The accused is charged in an Indictment as follows:1. THAT HE, the said Dean Lommerse between the 2nd day of April, A.D. 2013 and the 30th day of May, A.D. 2013 at or near Regina, Saskatchewan, did commit a sexual assault on ----- --------, contrary to section 271 of the Criminal Code of Canada.2. THAT HE, the said Dean Lommerse between the 2nd day of April, A.D. 2013 and the 30th day of May, A.D. 2013 at or near Regina, Saskatchewan, did being in position of trust or authority toward ------ --------, a person aged sixteen years, for a sexual purpose, touch, directly or indirectly, with a part of the body, any part of the body of ------ --------, contrary to section 153(1)(a) of the Criminal Code of Canada.4. THAT HE, the said Dean Lommerse on or about the 25th day of October, A.D. 2013 at or near Regina, Saskatchewan, did have in his possession child pornography to wit: possessing digital files of a person who is or depicted as being under the age of eighteen years engaged in or depicted as being engaged in explicit sexual activity, or the dominant characteristic of which is the depiction, for sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen, contrary to section 163.1(4) of the Criminal Code of Canada. [6] The accused originally came to the attention of the Regina Police Service when the complainant reported having had sexual contact with Mr. Lommerse. The complainant was young person at the time of the alleged contact. The officer who received the complainant’s information was Constable Howell. He was working with the vice unit of the police service and had 15 years of police experience. [7] The complainant told Cst. Howell that while she was present in the accused’s apartment, he had sexually assaulted her. She said that when she was there, the accused was always on one of two websites: “Plenty of Fish” or an unnamed pornographic massage site. The officer determined evidence of the accused viewing these sites, when the complainant said she was in his apartment, would provide corroboration of the complainant’s allegations. [8] The officer prepared an ITO setting forth his belief the accused had committed the offences of sexual assault and sexual exploitation of the complainant between April and May 30, 2013. There is no reference in the ITO to the offence of possession of child pornography. He relayed the history of his investigation and, in support of his request for warrant, stated: At present, the evidence in this investigation hinges around the video statement of believe her statement to be credible because the actions of Dean Lommerse as described by and because of ’s knowledge of Dean Lommerse’ [sic] dating web site. ‘s reluctance to file police report would also suggest that she does not have motive for making false statement. The search history on the computer used by Dean Lommerse will show how often he was viewing “massage porn” and provide evidence to the fact that he was viewing those sites while in the presence of The computer storage devices will also provide evidence towards Lommerse’ [sic] obsession with massage porn, and the credibility of [9] The justice authorized the warrant to search the following locations: (i) Any devices which are capable of analyzing, creating, displaying, converting, storing or transmitting electronic or magnetic or optical computer impulses or date. These devices include computers, computer components, computer peripherals, modems and routers, external and internal hard drives, USB flash drives, cameras and other computer related devices. (iv) Any information and/or data stored in the form of magnetic or electronic or optical coding on computer media or on media capable of being read by computer with the aid of computer related equipment. This media includes floppy diskettes, fixed hard disks, removable hard disk cartridges, tapes laser disks, CDs, DVDs and any other media or device which is capable of storing computer data. (v) Documentation pertaining to the occupant or occupants of the home, that will assist in proving their occupation of the residence and control of the computer equipment located therein and/or assist in proving the elements of the offence. The numbering of (ii) and (iii) are not included in the warrant. There was no explanation provided for this omission. [10] The ITO sought only search of the “search history on the computer.” The warrant does not use such limiting words. [11] According to the evidence of Cst. Howell, after the complainant completed her formal statement, she then provided additional information that the accused had taken pictures of her while she was naked and in the shower. This information is not included in the ITO. [12] Cst. Howell explains it was an oversight on his part to leave this information out. He testified he wanted to get the search warrant out prior to the end of his shift. He did not amend the ITO. Neither did he swear further ITO disclosing this additional information and seeking further search warrant with different search parameters. [13] Cst. Howell executed the search warrant. He seized laptop, an iPhone, various accessories, charger, cable and CDs. He delivered the material to Sergeant Kuan, computer forensic specialist with the Royal Canadian Mounted Police. At the time of the delivery, Cst. Howell requested of Sgt. Kuan that he complete forensic search of the computer and phone to obtain the following: 1. General search of the internet history; 2. Pictures of the complainant; and 3. Messages between the complainant and the accused. [14] Cst. Howell knew the search of pictures was not included on the search warrant. Yet, he still made this specific request to Sgt. Kuan. Sgt. Kuan did not review the terms of the warrant prior to completing his forensic examination. The practice in 2013 was not necessarily to review the warrant. That practice has since changed. [15] To complete forensic search, Sgt. Kuan first creates mirror image of the contents of the computer and the phone. This includes all files on the device including deleted files. The software employed automatically gets everything on the device and then it is up to the forensic examiner to delve into the device in accordance with the search warrant or his/her instructions. [16] He obtained the search history of the internet, all of the photographs and videos and the text messages. It is unclear from the evidence given by Sgt. Kuan whether any actual messages between the complainant and the accused were obtained. [17] Sgt. Kuan testified his forensic analysis would allow him to obtain from the devices specific items requested. For example, if he had been asked only for the internet search history, he could carve this out from the mirror image created and send that to the investigators. He further testified he uses different software to get at different items located on the devices, be those items pictures, internet history or other. This process applies equally to the laptop and to the cell phone. [18] As indicated do not know the nature of the evidence actually obtained. That information was not placed before the court as part of this voir dire. ISSUES [19] The following issues are raised for consideration on this voir dire:1. What is the correct procedure to be used to challenge evidence seized pursuant to a search warrant;2. Is the Crown able to call amplification evidence and have it considered in support of the search and seizure conducted;3. Does the ITO set forth reasonable and probable grounds that the items sought are evidence with respect to the commission of an offence;4. Does the ITO use boiler plate clauses;5. Does the ITO establish reasonable and probable grounds that the items are likely to be found in the place to be searched;6. What is the extent of a search of a computer or computer device. 1. What is the correct procedure to be used to challenge evidence seized pursuant to search warrant? [20] The accused filed an application for Charter relief in the form of the exclusion of evidence pursuant to ss. 24(2) as result of breach of the s. rights of the accused. The date for the conduct of the voir dire was established by agreement of counsel at pre-trial conference. There was no dispute taken by the Crown to the procedure employed by the accused in this regard. [21] The procedure to be followed on voir dire is set forth in Sadikov, 2014 ONCA 72 (CanLII), 305 CCC (3d) 421 as follows: 30 voir dire is held to determine the admissibility of evidence proposed for admission by party to criminal proceeding: R. v. Parsons (1977), 1977 CanLII 55 (ON CA), 17 O.R. (2d) 465 (C.A.), at p. 469, aff'd 1980 CanLII 31 (SCC), [1980] S.C.R. 785. On the voir dire, it is for the trial judge to determine whether the conditions precedent to the admissibility of the proposed evidence have been met. The voir dire is separate proceeding from the trial proper and the evidence taken on voir dire forms no part of the evidence at trial unless the parties expressly agree to its incorporation: R. v. Erven, 1978 CanLII 19 (SCC), [1979] S.C.R. 926, at p. 932; R. v. Darrach, 2000 SCC 46 (CanLII), [2000] S.C.R. 443, at para. 66; R. v. Dela Cruz, 2007 MBCA 55 (CanLII), 220 C.C.C. (3d) 272, at para. 24; and R. v. Gauthier, 1975 CanLII 193 (SCC), [1977] S.C.R. 441, at p. 454. 31 Each admissibility issue warrants separate inquiry or voir dire. It seems logically to follow from the very nature of voir dire as separate proceeding that evidence adduced on one voir dire does not, without more, become evidence on another voir dire held to determine different admissibility issue. The Procedure on voir dire 32 The manner in which voir dire is to be conducted is left to the discretion of the presiding judge, and is not subject to rigid or pre-fabricated rules. Relevant factors include, but are not limited to, the nature of the issue under consideration and of the case itself, as well as the means of proof available: R. v. Kematch, 2010 MBCA 18 (CanLII), 252 C.C.C. (3d) 349, at para. 43. See also Rule 34.01 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), (Criminal Proceedings Rules). 33 In many instances, evidence proposed for admission may implicate more than one admissibility rule. In prosecutions for unlawful homicide, for example, statements the deceased has allegedly made to others, expressing fear of the accused and recounting incidents of actual or threatened violence, may engage both the hearsay and bad character rules. police interview of the accused may be challenged on voluntariness and constitutional grounds. It is commonplace to conduct single voir dire to determine admissibility in these cases and prudent use of judicial resources to do so. That said, presiding judges must be scrupulous to ensure that their rulings respect differing burdens and standards of proof and reflect an informed understanding of the governing admissibility rules: R. v. Voss (1989), 1989 CanLII 7167 (ON CA), 50 C.C.C. (3d) 58 (Ont. C.A.), at pp. 79-80. The Warranted Search voir dire 34 Admissibility challenges occur frequently where Crown counsel seeks to adduce evidence, real evidence, of things found and seized during search of person, place, or thing. Real evidence, like items found and seized during search, which meets the standards of relevance and materiality, is prima facie admissible. And this remains so whether the investigative conduct that yielded the evidence is lawful or unlawful. 35 Challenges to the admissibility of real evidence seized during a search involve a two-step inquiry. Because the criminal trial process cares about the constitutionality of state conduct that produces evidence that the Crown proposes to introduce in criminal prosecution, the first step is an inquiry into constitutionality. The second step, reached only after demonstration of constitutional infringement, is an inquiry into the admissibility of the evidence obtained by the infringement. Both inquiries impose an onus on the person who claims unconstitutional conduct and seeks exclusion of the evidence obtained by it. The standard of proof required is proof on balance of probabilities. 36 In trials in the Superior Court of Justice, an accused who seeks exclusion of evidence alleged to have been obtained by constitutional infringement is required to comply with Rule 31 of the Criminal Proceedings Rules. The Rule promotes constructive use of judicial resources and avoids surprise by requiring, among other things, written application that contains precise, case-specific statement of the basis and grounds upon which exclusion is sought, detailed summary of the evidence or other material upon which reliance is placed, and statement of the manner in which the applicant proposes to introduce the evidence. Challenges to the constitutionality of warranted searches may involve either or both facial and sub-facial attack on the authorizing warrant. No reason in principle requires separate voir dire for each mode of attack, although many prefer discrete hearing for each. 37 facial validity challenge requires the reviewing judge to examine the ITO and to determine whether, on the face of the information disclosed there, the justice could have issued the warrant: R. v. Araujo, 2000 SCC 65 (CanLII), [2000] S.C.R. 992, at para. 19. The record examined on facial review is fixed: it is the ITO, not an amplified or enlarged record: R. v. Wilson, 2011 BCCA 252 (CanLII), 272 C.C.C. (3d) 269, at para. 39. 2. Is the Crown able to call amplification evidence and have it considered in support of the search and seizure conducted? [22] The Crown seeks to introduce evidence of Cst. Howell’s discussion with the complainant that the accused took photographs of her while she was naked and showering. [23] This information is, apparently, not contained in the complainant’s original statement given to Cst. Howell. It was allegedly provided after the formal interview in the police station had been completed. This information is not set forth in the ITO. The suggested criminal offence of possession of child pornography is not contained in the ITO. [24] Based on the information allegedly received from the complainant, Cst. Howell requested Sgt. Kuan to search other areas of the computer looking for child pornography. The evidence of the discussion between Cst. Howell and the complainant is sought to be entered to amplify what Cst. Howell actually swore to in the ITO. In the result, the Crown seeks to then justify, or authorize, the seizure of additional items taken in the execution of the search warrant. [25] In James A. Fontana David Keeshan’s The Law of Search Seizure in Canada, 9th ed (Toronto: LexisNexis, 2015) at 338-339, the issue of amplification is explained as follows: In certain circumstances, the reviewing court is entitled to take into account material that was adduced on the review but that was not placed before the issuing justice. This practice may be referred to as “amplification”. In R. v. Garofoli [1990 CanLII 52 (SCC), [1990] SCR 1421], Sopinka J. touched on this question in passing when the stated: The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge. (Emphasis added in original) He developed the concept further in R. v. Plant [1993 CanLII 70 (SCC), [1993] SCR 281], where the information on search warrant application compressed two parts of the police investigation by stating that an informant had supplied the police with particular address, when the informant actually supplied precise description of the house that enabled the police to identify its address: In considering the material that was properly before the authorizing judge, however, only the information actually obtained from the tipster should be included. In addition, this information could be amplified by reference to the fact that the police were able to locate residence matching the description which they were given. This information, coupled with the results of the computer check, were, in my opinion, sufficient to constitute reasonable grounds for the issue of the warrant. The Nova Scotia Court of Appeal in R. v. Morris [(1998), 1998 CanLII 1344 (NS CA), 134 CCC (3d) 539], building on R. v. Garofoli and R. v. Plant, set out general framework for the use of amplification on review of search warrant. Speaking for the court, Cromwell J.A. stated: Although evidence obtained in violation of the Charter and evidence that was deliberately or purposefully false or misleading must be excluded from consideration on review, this principle does not extend to all misleading and incorrect material. Misleading or inaccurate information does not have to be totally excluded from consideration unless it is part of deliberate attempt to mislead the issuing justice. Erroneous material may be amplified by evidence on review showing the true facts. Evidence is admissible to explain non-deliberate errors or omissions on the review provided that the information was known to the police officers involved in obtaining the warrant at the time it was obtained and subject to the requirement that unconstitutionally obtained evidence cannot be considered. [Emphasis in original] [26] In Araujo, 2000 SCC 65 (CanLII), [2000] SCR 992, Madam Justice LeBel, speaking for unanimous court described the balancing act which court must employ when considering amplification evidence: 59 When using amplification, courts must strike balance between two fundamental principles of search and seizure law that come into rather unique tension in these kinds of situations: see Morris, supra, at pp. 567-68. As result of this tension, the cases disclose divergent attitudes to incomplete or incorrect affidavits and amplification thereof: see Morris, at pp. 560-67; cf. R. v. Madrid (1994), 1994 CanLII 1682 (BC CA), 48 B.C.A.C. 271, at pp. 285-90, and R. v. Harris (1987), 1987 CanLII 181 (ON CA), 35 C.C.C. (3d) (Ont. C.A.), at pp. 23 and 27 (leave to appeal refused, [1987] S.C.R. vii). The danger inherent in amplification is that it might become means of circumventing prior authorization requirement. Since prior authorization is fundamental to the protection of everyone’s privacy interests (Hunter v. Southam Inc., supra, at p. 160), amplification cannot go so far as to remove the requirement that the police make their case to the issuing judge, thereby turning the authorizing procedure into sham. On the other hand, to refuse amplification entirely would put form above substance in situations where the police had the requisite reasonable and probable grounds and had demonstrated investigative necessity but had, in good faith, made some minor, technical error in the drafting of their affidavit material. Courts must recognize (along with investigative necessity) the two principles of prior authorization and probable grounds, the verification of which may require close examination of the information available to the police at the time of the application for wiretap, in considering the jurisprudence on amplification. The approach set out earlier to erroneous information in an affidavit on wiretap application attempts to reconcile these principles. Courts should take similar approach to amplification. [Emphasis added] [27] Amplification evidence is intended to correct minor or technical errors made by the investigators, but which were done in good faith and not with an intent to either deceive or mislead. good discussion of this was completed by Dufour J. in Wonitowy, 2010 SKQB 346 (CanLII), 358 Sask 303: 24 An amplification hearing was conducted at the opening of the voir dire to deal with the accused’s motion to exclude evidence. Sgt. Parisien reiterated that which was contained in the ITO, but testified to much that was not in it. For example, he provided further details of his training as an internet child pornography investigator, explained how “deleted” computer files can be recovered by police experts, provided more information regarding the amount of child pornography on the computer and related anecdotal evidence as ostensible support for his belief that those who download child pornography tend to keep it. He also explained why there was seven month gap between his discovering the pornography on the computer and the swearing of the ITO. 25 In my opinion, none of Sgt. Parisien’s testimony in the amplification hearing is admissible in respect of whether the accused’s s. Charter rights were violated. 26 The scope of evidence at an amplification hearing is limited to correcting “some minor, technical error in the drafting of their affidavit material” or to “exclude erroneous information” in the ITO from the Court’s consideration in the review (R. v. Araujo, supra, at paras. 58 and 59). The evidence the Crown sought to adduce here goes well beyond those very narrow parameters and to admit it would be to permit the use of amplification evidence as “a means of circumventing prior authorization” (Morelli, supra, at para. 42). 27 Counsel for the Crown takes the position that the evidence of Sgt. Parisien at the amplification hearing is admissible and refers me to R. v. Fougere, 2010 NSSC 169 (CanLII), 290 N.S.R. (2d) 307. The basis for authorizing the search in that case was tip from an informant that the accused was growing marijuana in his backyard. The ITO did not indicate when the tipster actually observed the marijuana plants and therefore, the accused argued, there was insufficient evidence to support the inference that the marijuana would still be in his backyard at the time of the search. There was an amplification hearing at which Edwards J. admitted testimony from the police officers that they had received the tip “within month” of the issuance of the search warrant. Edwards J. considered Morelli and concluded that the Crown could adduce evidence at the amplification hearing to establish the recency of the tip because that information was known to the police at the time the ITO was sworn. As such, he appears to reason, the Crown was entitled to supplement the evidence in the ITO with testimony of that which was in the minds of the police at the time of the search. 28 With respect, in my opinion it matters not that which the police knew at the time of the search. What matters is whether there was sufficient evidence in the ITO. To hold otherwise would be contrary to Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] S.C.R. 145, wherein Dickson J. held that the purpose of s. of the Charter is to protect individuals from unjustified searches “before they happen, not simply of determining, after the fact, whether they ought to have occurred in the first place” (at para. 160). To allow the Crown to supplement the record with Sgt. Parisien’s testimony would be to countenance subsequent validation. 29 No evidence was adduced at the amplification hearing that identified errors in the ITO that should be corrected or misleading statements that should be excised. Thus, my considerations in this review will be based solely on that which was put before the justice in July 2007. [28] The Supreme Court of Canada in Morelli, 2010 SCC (CanLII), [2010] SCR 253 [Morelli] made the point succinctly and directly: 40 In reviewing the sufficiency of warrant application, however, "the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued" (R. v. Araujo, 2000 SCC 65 (CanLII), [2000] S.C.R. 992, at para. 54 (emphasis in original)). The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place. 41 The reviewing court does not undertake its review solely on the basis of the ITO as it was presented to the justice of the peace. Rather, "the reviewing court must exclude erroneous information" included in the original ITO (Araujo, at para. 58). Furthermore, the reviewing court may have reference to "amplification" evidence that is, additional evidence presented at the voir dire to correct minor errors in the ITO so long as this additional evidence corrects good faith errors of the police in preparing the ITO, rather than deliberate attempts to mislead the authorizing justice. 42 It is important to reiterate the limited scope of amplification evidence, point well articulated by Justice LeBel in Araujo. Amplification evidence is not means for the police to adduce additional information so as to retroactively authorize search that was not initially supported by reasonable and probable grounds. The use of amplification evidence cannot in this way be used as "a means of circumventing prior authorization requirement" (Araujo, at para. 59). 43 Rather, reviewing courts should resort to amplification evidence of the record before the issuing justice only to correct "some minor, technical error in the drafting of their affidavit material" so as not to "put form above substance in situations where the police had the requisite reasonable and probable grounds and had demonstrated investigative necessity but had, in good faith, made" such errors (para. 59). In all cases, the focus is on "the information available to the police at the time of the application" rather than information that the police acquired after the original application was made (para. 59). [29] During argument, the Crown emphasized that Cst. Howell was proceeding in good faith. It was submitted he had merely erred in failing to include the information in the ITO. [30] What the Crown seeks to do here is really to advance an argument that the ends justify the means. Cst. Howell knew of this information but testified he just made an error in not including it in the original ITO. The unsaid portion of that argument is that the state surely would have got the search warrant for the expanded material if it had been properly included so it can properly be included at this stage. It may also go so far as to say the information received, ultimately turned out to be correct because child pornography was actually found. [31] This argument necessarily requires review of first principles with respect to the necessity of the state to obtain authorization prior to completing search of an individual’s possessions. Dickson J. in Hunter Southam Inc., 1984 CanLII 33 (SCC), [1984] SCR 145 stated at 155: 16. It is clear that the the [sic] meaning of "unreasonable" cannot be determined by recourse to dictionary, nor for that matter, by reference to the rules of statutory construction. The task of expounding constitution is crucially different from that of construing statute. statute defines present rights and obligations. It is easily enacted and as easily repealed. constitution, by contrast, is drafted with an eye to the future. Its function is to provide continuing framework for the legitimate exercise of governmental power and, when joined by Bill or Charter of Rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the constitution and must, in interpreting its provisions, bear these considerations in mind. Professor Paul Freund expressed this idea aptly when he admonished the American courts "not to read the provisions of the Constitution like last will and testament lest it become one". [32] In this case, the officer testified it was his error in failing to include the child pornography information in the ITO and he committed the error because he was rushing to complete the matter prior to the end of his shift. He suggested he recognized his error after the search warrant was issued. He testified as to relative lack of experience in completing search warrant materials. He told Sgt. Kuan about searching for child pornography. Why he did not complete further ITO and seek warrant putting this information before the justice is not explained in any way. Rather, the Crown simply relies on the indicated ends justify the means argument. [33] This is not how amplification evidence is intended to work. The present attempt is little more than cloaked way of “circumventing prior authorization requirement.” It does not allow for reflection and consideration by the justice as is required on these types of matters. The sought after exclusion is neither minor nor technical. It seeks to allege a whole new criminal offence and a whole new area of search on the accused’s computer devices. [34] As a result of this analysis, I am not prepared to admit the amplification evidence sought by the Crown. 3. Does the ITO set forth reasonable and probable grounds that the items sought are evidence with respect to the commission of an offence? [35] The accused argues the search history to provide evidence of visits to the “Plenty of Fish” and pornographic massage websites are providing nothing more than propensity evidence against the accused. Accordingly, it is argued the warrant was not seeking evidence with respect to the commission of an offence. [36] The Crown responds the evidence was not sought to show the accused’s propensity for either pornographic or dating websites. Rather, the Crown argues the website information has the potential to corroborate portions of the complainant’s evidence. The complainant has provided statement saying when she was at the accused’s apartment, he was on his computer visiting these specific websites. The Crown submits the time and actual website will assist in providing corroborative evidence of the complainant’s statement. [37] The ITO provides basis for both of these submissions. Cst. Howell swears viewing of the sites while in the presence of the complainant will provide evidence to assist with the credibility of the complainant. However, Cst. Howell swears that this information will also provide evidence of the accused’s “obsession with massage porn.” [38] The point of this voir dire is not to determine admissibility of evidence outside of the search warrant context. That determination may yet occur at the trial of this matter, should the Crown seek to introduce this material as part of its case. The Crown has indicated the sole purpose for which it seeks to obtain the evidence of the website visits. It may be that at the trial, the accused determines to advance arguments disputing the admissibility of this evidence. That does not result in the warrant not seeking evidence with respect to the commission of the evidence. In many cases the police are seeking evidence in support of the allegations made. There is no requirement this evidence be directly connected to the complainant or the actual subject matter of the complaint. [39] This part of the accused’s argument is dismissed. 4. Does the ITO use boiler plate clauses? [40] The ITO refers to the following search parameters: (i) Any devices which are capable of analyzing, creating, displaying, converting, storing or transmitting electronic or magnetic or optical computer impulses or date. These devices include computers, computer components, computer peripherals, modems and routers, external and internal hard drives, USB flash drives, cameras and other computer related devices. (ii) Any information and/or data stored in the form of magnetic or electronic or optical coding on computer media or on media capable of being read by computer with the aid of computer related equipment. This media includes floppy diskettes, fixed hard disks, removable hard disk cartridges, tapes laser disks, CDs, DVDs and any other media or device which is capable of storing computer data. (iii) Documentation pertaining to the occupant or occupants of the home, that will assist in proving their occupation of the residence and control of the computer equipment located therein and/or assist in proving the elements of the offence. [41] The conclusion indicates what Cst. Howell sought to obtain from these devices was the “search history”. [42] The accused argued originally that the ITO made no reference to cell phone in support of the other computer related devises. Counsel, during argument, recognized this assertion was incorrect. Cst. Howell indicated the information received from the complainant was that the accused “texted” her. It was accepted this was reference to cell phone for the texting capability. [43] I do not determine the ITO uses impermissible boiler plate clauses when it is read in its entirety. Cst. Howell seeks to obtain the search history from the computer devices. In this context it is not boiler plate language. Rather, it is explicitly directed at getting the search history as potential evidence in this matter. [44] What is not clear from the argument conducted is whether the language is sufficient to capture text messages contained on the accused’s cell phone. As indicated, there is reference in the ITO about the accused texting the complaint: “Lommerse continued to text to times day”. [45] However, nowhere in the ITO does Cst. Howell refer to the need to search the cell phone for text messages to obtain evidence with respect to the commission of an offence. Other than the statement cited, there is simply no other reference in the materials. [46] It appears the ITO does not set forth reasonable and probable grounds that the text messages are evidence with respect to the commission of an offence. 5. Does the ITO establish reasonable and probable grounds that the items are likely to be found in the place to be searched? [47] Cst. Howell seeks the “search history” off the computer devices. It is necessary to review the principles for reviewing warrant. In Garofoli, 1990 CanLII 52 (SCC), [1990] SCR 1421, the jurisdiction of the court reviewing the ITO is put as follows at 1452: The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge. [48] In the text The Law of Search and Seizure in Canada, the authors refer to the decisions which have set forth convenient summary of the principles governing review at 329-330: In R. v. Allain, Drapeau J.A. (as he then was) provided statement of the general principles that at that time governed trial judge’s review of the validity of search warrant. The New Brunswick Court of Appeal in R. v. Arsenault neatly summarized those principles as follows: 1) trial judge’s review must be undertaken from the standpoint that the impugned search warrant and the ITO are presumed valid; 2) The burden rests on the challenger to satisfy the reviewing judge that the ITO does not comply with the substantive requirements set by law; 3) The reviewing court must not assess the substantive quality of the ITO by confining itself to the evidence which is explicitly set out in it. The court must bear in mind the undoubted power of the issuing judge to draw reasonable inferences from such explicitly stated evidence; 4) The assessment by the reviewing court must take into account the totality of the ITO, interpreting its constituent parts in context; 5) An overly strict interpretation of the words used in the ITO is not warranted by the jurisprudence, or by s. of the Charter, but the reviewing court must remain vigilant and not allow its tolerance for drafting errors or deficiencies to extend to material omissions with respect to substantive requirements; 6) Ultimately, where the ITO does not expressly or by implication disclose the required reasonable grounds, the resulting warrant cannot be said to have been properly issued; 7) Where the evidentiary record before the reviewing judge is not materially different from the record before the issuing judge, the test on review is whether there was some evidence before the issuing judge upon which that judge could, acting judicially, issue the warrant to search; 8) However, where the record that can be considered by the reviewing court is materially different from the record before the issuing judge, such as where material parts of the ITO have been excised, the test on review is whether the warrant would have issued on the basis, of the evidence which remains; 9) Where the evidentiary record before the reviewing court is materially less significant than the record before the issuing judge, there is no longer any principled justification for deference and it is up to the Crown to satisfy the reviewing judge that (the warrant would have issued on the basis of the remaining evidence. [49] The accused’s argument is to the effect that reference to “search history” is not specific enough and is technical term requiring explanation and definition, from an expert in computer technology. This argument was confined to the issue of the information received that the accused visited certain websites when the complainant was in his apartment. However, it may also apply to the texting history between the accused and the complainant which may be found on the phone. [50] The search warrant and ITO are presumed to be valid. The issuing justice is entitled to draw reasonable inferences from the material. The ITO explicitly makes reference to the particular websites alleged to be visited by the accused. Here, the term “search history” is expanded upon in the ITO: At present, the evidence in this investigation hinges around the video statement of believe her statement to be credible because the actions of Dean Lommerse as described by and because of ’s knowledge of Dean Lommerse’ [sic] dating web site. ’s reluctance to file police report would also suggest that she does not have motive for making false statement. The search history on the computer used by Dean Lommerse will show how often he was viewing “massage porn” and provide evidence to the fact that he was viewing those sites while in the presence of The computer storage devices will also provide evidence towards Lommerse’ [sic] obsession with massage porn, and the credibility of [51] In my view, it is a reasonable inference to draw that search history means the search history of the accused with respect to the websites identified in the ITO. Accordingly, the ITO provides sufficient description. As indicated, there will need to be further argument on whether the texts contained in the phone are caught by this phrase. 6. What is the extent of search of computer or computer device? [52] In this case, the entire contents of both the laptop computer and the cell phone were examined by Sgt. Kuan and the evidence disclosed was provided to Cst. Howell. In particular, Cst. Howell asked Sgt. Kuan to look for items of child pornography. These items were not indicated to be included in the search history. [53] The decision of Fish J. in Morelli completely describes the nature of computer search: [2] It is difficult to imagine search more intrusive, extensive, or invasive of one’s privacy than the search and seizure of personal computer. [3] First, police officers enter your home, take possession of your computer, and carry it off for examination in place unknown and inaccessible to you. There, without supervision or constraint, they scour the entire contents of your hard drive: your emails sent and received; accompanying attachments; your personal notes and correspondence; your meetings and appointments; your medical and financial records; and all other saved documents that you have downloaded, copied, scanned, or created. The police scrutinize as well the electronic roadmap of your cybernetic peregrinations, where you have been and what you appear to have seen on the Internet generally by design, but sometimes by accident. [54] The police, upon seizure of a computer or computer related device are not entitled to rummage through the entire contents of the device searching for other evidence. In Jones, 2011 ONCA 632 (CanLII), 278 CCC (3d) 157, the Ontario Court of Appeal states: [42] do not accept that the right to examine the entire contents of computer for evidence of one crime (fraud, in this case) carries with it the untrammelled right to rummage through the entire computer contents in search of evidence of another crime (possession of child pornography, in this case) without restraint even where, as here, the warrant may properly authorize unlimited access to the computer's files and folders in order to accomplish its search objectives. computer search pursuant to warrant must be related to the legitimate targets respecting which the police have established reasonable and probable grounds, as articulated in the warrant. [55] Here the ITO sought only the “search history”. Accordingly, the only place they are permitted to search through is the search history and not the entire contents of the computerized devices. [56] As a result of the forgoing, evidence of the search history was validly obtained pursuant to the execution of the search warrant. Any other evidence obtained was not pursuant to the search warrant and is accordingly a violation of the accused’s s. 8 Charter rights.

The accused was charged with the commission of sexual assault, sexual touching in relation to a 16-year-old and possession of child pornography. The accused came to police attention via a report by the complainant. She reported that the accused was often viewing a pornographic website while in her presence. The police prepared an information to obtain a search warrant (ITO). The ITO stated that the search would provide evidence of the accused’s viewing of pornography in the presence of the complainant, bolstering the complainant’s credibility. The ITO did not reference possession of child pornography. The ITO sought only a search of the “search history on the computer”. The issued warrant authorized a search of the accused’s computer and related devices and media, as well as documents pertaining to occupancy of the home and control of computer equipment. The complainant subsequently alleged that the accused had taken photos of her in the shower. The police did not amend the ITO to include a search for photos. The police executed the search and seized, inter alia, a laptop, an iPhone and CDs. The police delivered the material to a computer forensic specialist at the RCMP and requested a complete forensic search of the computer and phone to obtain a general search of the Internet history, pictures of the complainant and messages between the complainant and the accused. The police knew that the search of pictures was not included on the search warrant. The RCMP did not review the terms of the warrant prior to completing the examination and examined the entire contents of the laptop and phone. The accused submitted that his s. 8 Charter rights had been violated by the search and applied for exclusion of evidence pursuant to s. 24(2). The application proceeded by voir dire. The evidence was apparently located on either the accused’s laptop or cell phone, but the nature of the evidence obtained was not disclosed at the voir dire. The following issues were raised: 1) What is the correct procedure to be used to challenge evidence seized pursuant to a search warrant; 2) Was the Crown able to call amplification evidence and have it considered in support of the search and seizure conducted; 3) Did the ITO set forth reasonable and probable grounds that the items sought were evidence with respect to the commission of an offence; 4) Did the ITO use boiler plate clauses; 5) Did the ITO establish reasonable and probable grounds that the items were likely to be found in the place to be searched; and 6) What was the extent of a search of a computer or computer device. | HELD: Evidence of the accused’s search history was validly obtained. Other evidence was beyond the scope of the search warrant and obtained by violation of the accused’s s. 8 rights. The court held: 1) There is a two-step inquiry to be made when real evidence is seized during a search. The first step is an inquiry into constitutionality, and the second is reached only after a constitutional infringement has been established. Both inquiries impose an onus on the person claiming infringement. The standard of proof is the balance of probabilities. Challenges to constitutionality of warranted searches may involve either or both a facial and a sub-facial attack on the authorizing warrant. The record examined on facial review is fixed: it is the ITO, not an amplified or enlarged record; 2) In attempting to enter evidence of the complainant’s allegation that the accused took pictures of her in the shower, the Crown relied on an argument that the ends justified the means. This amplification evidence sought to allege a whole new offence and area of search. It was not admitted; 3) The point of this voir dire was not to determine admissibility of evidence outside of the search warrant context. There was no requirement that evidence sought in support of allegations made be directly connected to a complainant or the actual subject matter of a complainant; 4) The ITO did not use impermissible boiler plate clauses when read in its entirety. However, it did not set forth reasonable and probable grounds that text messages were evidence with respect to the commission of an offence; 5) The ITO provided sufficient description. It was reasonable to infer that search history meant search history of the accused with respect to the websites defined in the ITO. Further argument was required on whether text messages could be included; and 6) Police are not entitled to rummage through entire contents of a device searching for other evidence. The ITO sought only the search history.

8_2017skqb53.txt

nan THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2010 SKCA 79 Date: 20100610 Between: Docket: 1598 Her Majesty the Queen and David Raymond Horkoff Coram: Gerwing, Jackson and Richards JJ.A. Counsel: Douglas G. Curliss for the Crown Hans J. Doehring for the Appellant Appeal: From: Q.B. No. 2039 of 2007, Judicial Centre of Yorkton Heard: June 10, 2010 Disposition: Dismissed (Orally) Written Reasons: June 15, 2010 By: The Honourable Mr. Justice Richards In Concurrence: The Honourable Madam Justice Gerwing The Honourable Madam Justice Jackson Richards J.A. I. Introduction [1] Following a jury trial, David Horkoff was convicted of three drug offences and two Criminal Code driving offences. He was sentenced to a total of 35 months in prison. Mr. Horkoff appealed his convictions and his sentence, arguing that the former were unreasonable and the latter was too severe. We dismissed his appeals with oral reasons following argument and indicated that brief written reasons would follow. These are those written reasons. II. Basic Background [2] In 2002, the R.C.M.P. received information that Mr. Horkoff was involved in growing marihuana and proceeded to obtain warrant to search farmyard near Canora, Saskatchewan. The farmyard was registered in the name of Mr. Horkoff’s deceased father. On August 22, 2002, in preparation for the execution of the warrant, police officers were shown two pictures of Mr. Horkoff and told that he was likely driving white Tempo. [3] On that same day, the R.C.M.P. searched the farmyard. They discovered an active 323 plant marihuana grow-op. They also found scales, packaged marihuana, score sheets and plastic bags. [4] No one was present at the farmyard when the search was conducted. However, later in the day, R.C.M.P. Constable Badger and another officer riding with him observed white Tempo leave the farmyard and proceed toward them on rural road. Constable Badger stopped his patrol car and engaged the emergency lights. The driver of the Tempo, who Constable Badger identified as being Mr. Horkoff on the basis of the photographs, did not stop. After 41 kilometre high speed chase, the Tempo was driven into ditch and, although Constable Badger gave chase, the driver escaped on foot. [5] Some four years later, Mr. Horkoff was arrested on Salt Spring Island in British Columbia and brought to trial. Mr. Horkoff did not testify. However, the theory of his defence was that he had left Saskatchewan at or near the end of April 2002 and that someone else had driven the Tempo and had been operating the grow-op. He pointed, in particular, to James Holoboff. Mr. Holoboff gave evidence at the trial and denied any involvement with the grow-op and claimed he was not driving the Tempo. [6] Mr. Horkoff was ultimately convicted of: (a) unlawfully producing marihuana contrary to s. 7(1) of the Controlled Drugs and Substances Act (“CDSA”), (b) unlawfully possessing marihuana for the purpose of trafficking contrary to s. 5(2) of the CDSA, (c) unlawfully attempting to produce cannabis resin contrary to s. 7(1) of the CDSA, (d) operating motor vehicle in manner dangerous to the public contrary to s. 249(1)(a) of the Criminal Code, and (e) failing to stop his vehicle without lawful excuse contrary to s. 249.1(1) of the Code. [7] The trial judge imposed concurrent 30 month sentences for the production and possession offences, time-served sentence of one month for the attempt to produce offence and five month sentences (to be served concurrently with each other but consecutive to the drug sentences) for the dangerous driving and evading police offences. As result, the total sentence was 35 months. A. The Conviction Appeal [8] Mr. Horkoff says his convictions were unreasonable and cannot be supported by the evidence. He seeks to engage this Court’s jurisdiction under s. 686(1)(a)(i) of the Criminal Code: 686. (1) On the hearing of an appeal against conviction or against verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal (a) may allow the appeal where it is of the opinion that (i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, [9] The root issue in an appeal based on s. 686(1)(a)(i) is well settled. The question is whether, on the whole of the evidence, the verdict reached by the jury was one that properly instructed trier of fact, acting judicially, could reasonably have rendered. See: R. v. Yebes, 1987 CanLII 17 (SCC), [1987] S.C.R. 168 at p. 186. [10] Mr. Horkoff grounds his argument on a number of concerns. They can be summarized as follows: (a) Constable Badger’s eye witness identification evidence cannot support a conviction, (b) the trial judge made inappropriate comments about whether, if it was Mr. Holoboff driving the Tempo, he could have outrun Constable Badger at the end of the car chase, (c) an adverse inference should have been drawn from the Crown’s failure to call the officer who was in the police car with Constable Badger, (d) the trial judge’s treatment of the photographs of Mr. Horkoff misled the jury about what had to be proven in order to establish that Mr. Horkoff was driving the Tempo, (e) the jury was improperly led to place particular reliance on an assessment of Mr. Holoboff’s credibility made by an R.C.M.P. officer who questioned him about possible involvement in the grow-op. will deal with each of these matters in turn. 1. Constable Badger’s Identification Evidence [11] Mr. Horkoff contends Constable Badger’s evidence as to the identity of the driver of the white Tempo was undercut by numerous considerations: (a) the Constable did not know Mr. Horkoff and had not seen him before the car chase, (b) the Constable was looking for white Tempo and had thereby been conditioned to expect Mr. Horkoff to be at the wheel, (c) the Constable had only limited opportunity to view the driver as the Tempo went past him, (d) the Constable was engaged in operating his cruiser when the Tempo drove by, and (e) it was dusk and the road was dusty at the time the Constable made the identification. [12] It is perhaps useful to begin by noting that Constable Badger’s position was not quite as compromised as Mr. Horkoff suggests. First, Constable Badger said it was daylight when the Tempo drove past (it was dusk by the time the car chase ended). Second, Constable Badger said nothing about it being dusty at the time he identified Mr. Horkoff. Third, Constable Badger was not operating his cruiser at the time the Tempo went by. He had stopped the cruiser and engaged the emergency lights. Fourth, Constable Badger said he got “good look” at the driver of the Tempo because he was able to observe him beginning when the Tempo was about 40 metres away and continuing through to the point when the Tempo passed by him only five feet away. [13] In our view, the issues identified by Mr. Horkoff do not operate to make his convictions unreasonable. The trial judge warned the jury about the dangers of eye witness identification evidence. In this regard, she explained that people had been wrongly convicted by such evidence and she underscored that an honest and apparently convincing witness can be mistaken on identification issues. The trial judge also laid out number of relevant factors for the jury to consider in assessing the reliability of Constable Badger’s evidence. [14] We note, as well, that this is not case like R. v. Bigsky, 2006 SKCA 145 (CanLII), [2007] W.W.R. 99 where the convictions turned exclusively on eye witness identification evidence. number of pieces of circumstantial evidence tied Mr. Horkoff to the grow-op: (a) the farm property where the grow-op was located was registered in his deceased father’s name, (b) the evidence suggested the farmhouse was being occupied by single male, (c) Mr. Horkoff’s fingerprints were found on the grow-op equipment and on various papers relating to the grow-op, and (d) personal cheques and papers belonging to Mr. Horkoff were found in the house. In addition, Mr. Holoboff testified that Mr. Horkoff had shown him the grow-op at one point. In response, Mr. Horkoff says that none of this necessarily means he was at the grow-op as late as August 22, 2002, the date of the alleged offences. However, Mr. Holoboff also said that, although he purchased the Tempo from Mr. Horkoff in 2002, he subsequently had left it and the keys with Mr. Horkoff for repair work and had done so prior to August 22, 2002. It was open to the jury to accept Mr. Holoboff’s version of events. [15] We readily acknowledge that Constable Badger’s identification evidence had its frailties. However, the jury was alerted to them and we are unable to conclude that Mr. Horkoff’s convictions were unreasonable in light of the evidence as a whole. 2. Whether Mr. Holoboff Could Have Outrun Constable Badger [16] Mr. Horkoff also is concerned that, in the course of her charge, the trial judge suggested the jury might wish to consider whether, with two or three second head start after the car chase, Mr. Holoboff could have successfully outrun Constable Badger. It appears that, at the time of the trial, Mr. Holoboff was not in good physical condition. Accordingly, in light of Mr. Holoboff’s age (he was 53 at the time of the offences) and physical circumstances, the consequence of the trial judge’s comment was significant. If Mr. Holoboff could not have outrun the Constable, this would suggest that it was Mr. Horkoff who had been driving the Tempo. [17] In our view, Mr. Horkoff’s argument on this point is misplaced. The trial judge recharged the jury on this very issue. After her original charge, and following Mr. Horkoff’s counsel’s disapproval of this aspect of her instructions, she recalled the jury and underlined that the physical condition of individuals changes over time. She also said that, just because Mr. Holoboff did not look like he could reasonably outrun Constable Badger on the trial date, this might not have been the situation six years earlier at the time of the offence. [18] Mr. Horkoff says this aspect of the recharge did not sufficiently neutralize the “speculative aspect” of the trial judge’s original comments. We do not agree. It was open to the jury to consider, on a common sense basis, whether it was likely that Mr. Holoboff could have outrun Constable Badger. The trial judge’s caution about changes in physical condition over time adequately put that issue into a proper perspective. 3. Failure to Call Constable Badger’s Passenger [19] Mr. Horkoff’s next complaint concerns the Crown’s decision not to call the R.C.M.P. sergeant who was in the patrol car with Constable Badger on the date of the offences. He says the sergeant was the more experienced officer and must have had better opportunity to see the driver of the Tempo than did Constable Badger. Mr. Horkoff’s argument, as we understand it, is that the trial judge had an obligation to tell the jurors they must draw an adverse inference from the fact the sergeant was not called to testify. [20] In our view, this argument involves misapprehension of the applicable law. In R. v. Cook, 1997 CanLII 392 (SCC), [1997] S.C.R. 1113, the Supreme Court underlined the broad discretion enjoyed by the Crown in the prosecution of offences. It specifically indicated that the Crown does not have duty to call all witnesses who have relevant testimony. There are situations, of course, where failure to call witness can properly lead finder of fact to draw the adverse inference that, if the witness has been called, his or her testimony would have been unfavourable to the Crown. See: R. v. Jolivet, 2000 SCC 29 (CanLII), [2000] S.C.R. 751 at paras. 22-30. However, even in such situations, it is the trier of fact who decides whether the inference should be drawn. [21] In this case, the trial judge clearly indicated to the jury that it could draw an adverse inference from the Crown’s failure to call Constable Badger’s passenger. She said it might appear “extremely relevant” that he was not brought forward to testify on the critical issue of identification. In the circumstances of this case, we are not persuaded that the trial judge was required to do more. Assuming this is in fact a situation when an adverse inference could have been drawn, the trial judge was not obliged to instruct the jury that it must proceed to draw the inference. 4. The Photographs of Mr. Horkoff [22] Mr. Horkoff also expresses concern about two photographs of him that were introduced as evidence at the trial. These were the photos Constable Badger had been shown before the execution of the search warrant. They were put into evidence after being identified by the Constable during the course of his testimony. [23] The pictures are full face and apparently were taken when Mr. Horkoff had been arrested in connection with prior incident. They were cropped so as to remove the “R.C.M.P.” labelling and other identifiers which are typically associated with such pictures. Mr. Horkoff’s counsel initially opposed the introduction of only one of the photos. He did so on the basis that it made Mr. Horkoff look like he had been drinking. However, he changed his position through the course of argument and ultimately objected to the introduction of both photographs on the ground that the jury would recognize them as being “mug shots.” The trial judge rejected this argument. In her view, the Crown was entitled to introduce both pictures because both had been shown to Constable Badger before the search. She did not believe the jury would see them as being mug shots. [24] In this Court, Mr. Horkoff’s main argument concerning the photographs is that the trial judge had left the jury with an erroneous sense of their significance. He says her charge would have led the jurors to believe that, if they concluded the photographs were of Mr. Horkoff, they should also conclude Mr. Horkoff was driving the Tempo. His concerns are rooted in part of the charge where the trial judge told the jurors they could decide for themselves whether the individual depicted in the photographs was Mr. Horkoff. [25] We are not persuaded by this aspect of Mr. Horkoff’s argument. When the charge is considered as a whole, we do not believe the jury was in any way left with the impression that, if it concluded the photographs were of Mr. Horkoff, it somehow followed that he was the driver of the Tempo. The resemblance between Mr. Horkoff and the individual depicted in the photographs was self-evidently only part of larger inquiry concerning the identity of the driver. 5. Constable Laurent’s Assessment of Mr. Holoboff [26] Mr. Horkoff also points to comments made by the trial judge that are said to have created an impression that Constable Laurent’s assessment of Mr. Holoboff’s credibility should be given special weight or consideration. The background to this submission can be briefly stated. Constable Laurent questioned Mr. Holoboff about his possible involvement in the grow-op and the car chase. During cross-examination of Constable Laurent, counsel for Mr. Horkoff pressed the Constable about his impressions of Mr. Holoboff. In response to counsel’s questions, Constable Laurent said he had believed Mr. Holoboff was telling the truth and that he did not believe Mr. Holoboff was connected to the grow-op. In her charge, the trial judge referred to Constable Laurent’s comments when reviewing how the jury should treat the evidence given by Mr. Holoboff. [27] We do not believe the jury was left with the impression that it should place special, or indeed any, weight on Constable Laurent’s assessment of Mr. Holoboff’s veracity. Three points merit special emphasis here. First, after referring to Constable Laurent’s statement that he believed Mr. Holoboff was telling the truth, the trial judge immediately went on to say “[o]bviously it is for you [the jury] to decide. You watched Mr. Holoboff testify. You watched him walk in and out of this courtroom. You will have formed your own opinions.” Second, the trial judge also told the jury it could accept some, none or all of Mr. Holoboff’s evidence. Third, in more general terms, the trial judge also instructed the jury to treat police witnesses like any other witnesses when assessing their testimony. While it would have been better if the trial judge had not referred to the contested aspects of Constable Laurent’s testimony in the way she did, her charge as whole would not have misled the jury about the significance of his comments. [28] It is also worth noting that the trial judge reviewed the circumstances under which Mr. Holoboff made his statement to police and underlined that he had reason to lie. [29] In sum, we are not persuaded that the trial judge’s remarks would have unduly or improperly influenced the jury’s assessment of Mr. Holoboff’s credibility. B. The Sentence Appeal [30] Mr. Horkoff acknowledges that the sentences imposed on him fall within the standard range of sentences for similar offences. He did suggest, however, that certain personal circumstances warrant his period of incarceration being reduced to time served. We are not persuaded by these submissions. [31] In the end, we are not persuaded that, either individually or collectively, the concerns raised by Mr. Horkoff warrant his convictions being set aside on the basis they were unreasonable or not supported by the evidence. Further, the sentences imposed by the trial judge were not demonstrably unfit. [32] The conviction appeals and the sentence appeals are dismissed.

The RCMP conducted search of farmland near Canora. They were also shown pictures of the accused who was likely driving white Tempo. The search revealed marijuana grow-op. The accused was later seen by officers driving. The officers chased the Tempo for 41 kms, but the vehicle was driven into the ditch, and the driver escaped on foot. Four years later the accused was arrested in British Columbia and brought to trial. The accused was convicted of three drug offences and two driving offences following a jury trial. He was sentenced to a total of 35 months in prison. The accused appeal both the convictions and the sentence. HELD: The accused argued the convictions were unreasonable and not supported by the evidence. The grounds were: (a) the officer's eye witness identification evidence cannot support a conviction; (b) the trial judge made inappropriate comments about whether the accused could have outrun the officer at the end of the car chase, if he was the driver; (c) an adverse inference should been drawn from the Crown's failure to call the second officer; (d) the trial judge's treatment of the photographs of the accused misled the jury about what had to be proven to establish the accused was driving the Tempo; (e) the jury was improperly lead to place reliance on an assessment of a witness's credibility made by an officer who questioned him about his possible involvement in the grow-op. The Court found: (a) the jury was alerted to the frailties of the officer's identification evidence, and the convictions were not unreasonable in light of the evidence as a whole; (b) it was open to the jury to consider whether the accused could have outrun the officer, and the judge's caution about changes in physical condition over time put the issue into a proper perspective; (c) the judge told the jury that it could draw an adverse inference from the Crown's failure to call the second officer, but the decision lies with the jury and the judge is not obliged to tell the jury that it must draw the inference; (d) when the charge is considered as a whole, the jury was not left with the impression that if it concluded the pictures were of the accused that it somehow followed that he was the driver of the Tempo; (e) the judge's remarks did not improperly influence the jury's assessment of the witness's credibility. The imposed sentences fall within the standard range for similar offences and were not demonstrably unfit.

e_2010skca79.txt

C.A.C. No. 123233 NOVA SCOTIA COURT OF APPEAL Pugsley, Bateman and Flinn, JJ.A. BETWEEN: KEVIN RILEY and HER MAJESTY THE QUEEN Respondent Louis M. Walsh for the Appellant William D. Delaney for the Respondent Appeal Heard: March 19, 1996 Judgment Delivered: May 10, 1996 THE COURT: Appeal allowed per reasons for judgment of Pugsley, J.A.; Flinn, J.A., concurring and Bateman, J.A., dissenting. Pugsley, J.A. Kevin Riley applies for leave to appeal, and if granted, appeals from the sentence of five months' incarceration to be followed by eighteen months' probation, imposed on him by a Provincial Court judge, after Mr. Riley pleaded guilty to theft of property of a value exceeding $5,000 contrary to Section 334 of the Criminal Code. Mr. Riley stole his grandmother's car from her home at Newport Station at about 12:30 a.m. on June 20th, 1995, and together with two friends, drove to the Canada-U.S. border station at St. Stephen, New Brunswick where they were arrested by the border guards when they attempted to cross into the US at approximately 8:00 a.m. later the same morning. The three had total of $20 in their pockets. The car was eventually returned to the owner without damage. Mr. Riley is single and has no children. His prior record is conviction for mischief for breaking window for which he was required to pay $50 fine plus restitution. The principal ground of appeal is that the sentencing judge failed to give sufficient weight to the principle of rehabilitation. BACKGROUND The information developed by Correctional Services and placed before the sentencing judge, in the form of pre-sentence report, discloses that: Mr. Riley was born on November 24th,1976, and was raised primarily by his paternal grandparents. During his late childhood, he lived with his father for 3-4 years but eventually returned to his grandparents where he remained until he was 17. He was then directed to leave their home as they were concerned about an excessive telephone bill, lack of respect, and negative attitude; Mr. Riley moved to the house of the parents of girlfriend, and then to the home of his sister in Windsor where he resided at the time this offence was committed; He has grade seven education and has basic reading and writing skills. Although he attempted to complete grade eight on number of occasions, in each case he quit before completing the school year; When he was 14, his grandmother took him to see psychiatrist as she was concerned about his behaviour in school. After attending two or three appointments, Mr. Riley refused to continue with any further sessions. He was prescribed medication but refused to take it; Mr. Riley acknowledged regular, heavy use of cannabis products since 1991. He would start using drugs shortly after he rose in the morning and used them intermittently throughout the day. He experimented with LSD and cocaine. He acknowledged consuming alcohol regularly, but maintained that he had no problem with these substances; He failed to report for his first pre-sentence interview, arriving later on the same day confessing that he had overslept; The probation officer writes: He acknowledged he was under the influence at the time of the Pre­Sentence Report interview. He seemed to be more relaxed than most offenders interviewed for Pre-Sentence Report. He was very open about his use of drugs to the point where he bragged about the quantity of cannabis and alcohol he sometimes consumes. Kevin Riley openly accepted full responsibility for his offence but he did not express remorse. In fact, he smiled frequently when relating the details of the offence, which suggested to this writer that he does not recognize the seriousness of his behaviour and the extent to which it upset other family members, particularly his grandparents. From Kevin Riley's point of view, his main problem is that he lives in an economically-depressed area which provides him with few opportunities. His solution is to move to Western Canada where he would have more opportunities. He seems to have very little understanding about the role his limited education, weak work history, substance abuse, friends, and his attitude play in his current circumstances. Mr. Riley was unemployed at the time of the offence, having been laid off from his previous job for missing too much work. SENTENCE HEARING DECEMBER 5, 1995 fair interpretation of the submissions of Crown counsel to the sentencing judge would suggest to an independent observer that the Crown was recommending that sentence be suspended. Crown counsel submitted: indicated to Legal Aid at the time of the plea that (the Pre-Sentence) report was favourable, that obviously something short of incarceration could work because Mr. Riley is relatively young and Mr. Riley, as understand it, has one minor mischief charge in the past. So he does not have lengthy record and one would like to do anything sort of incarceration when its possible. So the question is what's the best thing to do for Mr. Riley. And the best thing to do for Mr. Riley is to get him off the drugs and the alcohol and try to get him on some sort of counselling program. The question is whats the best way to do that. I'll leave that to Your Honour. One option, of course, is to throw him in jail for awhile and hope that dries him out. Whether there's an option today or not, guess depends on what Mr. Riley has to say today. Ideally, of course, would be to get Mr. Riley treated outside of any form of incarceration so that he can also function in society. Defence counsel, in short submission, recommended period of probation and advised the sentencing judge, in response to an invitation from the bench, that Mr. Riley did not wish to say anything personally to the Court. The sentencing judge was obviously influenced by the negative information contained in the Pre-Sentence Report to which Mr. Riley had made no effective response. The purpose of the report is, in the words of Chief Justice MacKeigan of this Court, in R. v. Bartkow (1978), 24 N.S.R. (2d) 518 at 522: to supply picture of the accused as person in society his background, family, education, employment record, his physical and mental health, his associates and social activities, and his potentialities and motivations. It was, in my opinion, quite appropriate for the sentencing judge to use the information in the report to assess Mr. Riley's character so as "to relate the offence to the individual" (R. v. Brown (1985), 1985 CanLII 3479 (MB CA), 31 Man.R. (2d) 268 per Monnin, C.J., at 274). The sentencing judge said in part: You certainly have certain attitude with respect to your habits and think the evidence shows that you do have problem with the use of cannabis and other drugs. You have not used your time very constructively and can understand, you were 18 you're 19 now, you want to enjoy your particular freedom. And it is fine to do so and you are at liberty to do so as long as you don't hurt others and you don't break the law and now you have, for the second time, and now your business has become our business. The sentence that I'm going to pronounce is one which hopefully will fit you and your particular needs. think you must understand that you will have to be responsible for yourself and you do have problems that must be addressed since left to you alone they will go unheeded. Mr. Riley was granted release pending appeal on the usual conditions together with the following restrictions: that he reside with his father, Larry Riley; that he not use or have in his possession at any time any drug prohibited by the Narcotic Control Act or the Food and Drugs Act; that he not consume or have in his possession at any time any alcoholic beverages; that he actively seek gainful employment and if he obtains employment, to maintain that employment; that he not associate with any person known to him to have Youth Court record or criminal record; that on or before the 10th day of January, 1996, he attend before counsellor with the Nova Scotia Drug Dependency Services for assessment and thereafter as directed by the counsellor. HEARING BEFORE THIS COURT ON MARCH 19, 1996 Mr. Riley's present counsel made number of submissions to this Court that were based upon facts or inferences that were not readily apparent from the record before us; in particular, 1. The Pre-Sentence report was prepared on November 29, 1995. Neither Mr. Riley or his counsel were aware of the contents of the report except for verbal advice from Crown counsel to Mr. Riley's Legal Aid representative that the Pre-Sentence Report was positive. Mr. Riley's Legal Aid lawyer, assuming that Mr. Riley would receive suspended sentence in view of his discussion with Crown counsel, sent his articled clerk to the hearing; 2. Mr. Riley has seen the errors of his ways, is truly remorseful, has attempted to secure employment, and has apologized to his grandparents who are paying for the cost of this appeal in the hope of keeping him out of jail; Counsel asked the Court to consider short letter report dated March 18, 1996, from one Laura Nichols, who has Masters of Education, and is described in the letter, as clinical therapist employed by the Drug Dependency Section of the Nova Scotia Department of Health. The contents of the letter were only given to Crown counsel late in the afternoon of March 18 the day before the hearing of this appeal. Crown counsel attempted to verify the information by speaking to Ms. Nichols, but she refused to discuss any details of the report since she did not have Mr. Riley's consent to do so. Section 687(i) of the Code provides: Where an appeal is taken against sentence, the court of appeal shall, unless the sentence is one fixed by law, consider the fitness of the sentence appealed against, and may on such evidence, if any, as it thinks fit to require or to receive, (a) vary the sentence within the limits prescribed by law for the offence of which the accused was convicted; or (b) dismiss the appeal. This Court has adopted relatively flexible guidelines respecting the acceptance of minor factual matters in sentence appeals, particularly when the evidence is tendered in favour of accused persons (R v. Hogan (1979), 1979 CanLII 2895 (NS CA), 34 N.S.R. (2d) 641 at 652). Crown counsel acknowledged, candidly and fairly, that this type of case would generally attract suspended sentence with probationary period tied to certain conditions, but for the negative information in the Pre-Sentence Report. The matters raised by Mr. Riley's counsel are, in my opinion, proper matters for consideration in sentence appeal. The panel was concerned, however, about the manner in which critical information was presented to the Court by defence counsel and the lack of opportunity afforded to the Crown to assess, let alone contest the information. Shortly after reserving decision, the Court advised that defence counsel would be given an opportunity to file affidavits with the Registrar of the Court up to April 9, 1996, respecting the issues raised, and in particular: 1. Mr. Riley's alcohol and drug use since December 4, 1995, including assessment and counselling programs; 2. Mr. Riley's employment since December 4, 1995, and his present employment opportunities; 3. His association, or lack of association, with offenders since December 4, 1995. The Crown was then given an opportunity to file affidavits in response with the Registrar, up to April 16, 1996. One Affidavit, that of Mr. Riley's father, Larry Riley sworn March 30, 1996, was filed on behalf of Mr. Riley. The Crown elected not to file any affidavits. Larry Riley deposes in part: 2. THAT since (my son) was released on bail pending the determination of this Appeal he has resided with me and do verily believe that he has complied with all of the conditions of his release. 3. THAT am totally disabled and unable to be gainfully employed and while (my son) resided with me he painted and repaired my home, which had not had any maintenance for three years, cut firewood in my woodlot and in his grandfather's woodlot. His grandfather paid him $10.00 per day as spending money and was adequately compensated for his room and board by the work he did for me while he stayed with me. 4. THAT attached hereto as Exhibit "A" to this my Affidavit is note from the owner of P.E. Lowe Salvage Ltd. and pay stub confirming that (my son) was employed for the first week in March by that company and further that his work was satisfactory and he would be re-employed as soon as that company obtains another salvage contract requiring the hiring of employees. 5. THAT (my son) has not consumed alcohol or used any nonmedically prescribed (drugs) while he was residing with me and has not had any behaviour or personality changes which would indicate use without my knowledge. 6. THAT (my son) has an initial counselling appointment with Laura Nichols of the Alcohol/Drug unit of the Hants Community Hospital on April 23, 1996 which was the earliest available date. 7. THAT (my son) has not given me any concern and has not shirked any work requested of him since his release on bail and his residence with me. 8. THAT (my son) has had no association with any of the individuals which were mentioned in the presentence report as part of (my son's) problem and to my knowledge has not associated with anyone known to have criminal record. 9. THAT (my son) has become integrated into our family again since he has returned and takes an interest in his younger brother and sister. 10. THAT (my son) has responded extremely well to the supervision and structured guidelines which have been placed on him while he has resided with me and has never refused chore or task. He does not procrastinate when he is working and has volunteered to preform jobs or simply done work that needed to be done without being asked. 11. THAT while (my son) was employed by P.E. Lowe he left home at 4:30 am. and did not return until between 7:00 9:00 pm. He was truly pleased to have the job and disappointed when it ended. 12. THAT the owner of P.E. Lowe has advised that he expects another contract which will require (my son's) services in New Glasgow area in the near future. (My son) is eager to be employed although with the travelling to the job site it will again make for 16 hour days. It is possible that the employees may be required to stay overnight at the job site on occasion. 13. THAT it is my assessment that (my son) has undergone significant rehabilitative change since he came to live with me and is not likely to become involved in the type of attitude and behaviour which resulted in his conviction. He is appreciative of the things which are done for him, has apologized to his grandmother for his improper behaviour, become socially involved with our family and there have been no problems in his compliance with the strict terms of his bail release. Counsel for Mr. Riley had directed our attention to Larry Riley's affidavit of December 12, 1995, filed in support of his son's application for release pending appeal, which affidavit provides in part: 2. That was in Court on Monday, December 4, 1995 when my son was sentenced for the theft of his grandparents' motor vehicle. 3. That Mrs. Etter was representing my son at the hearing and advised that the Crown would not be recommended term of imprisonment and that my son would receive sentence involving probation and possible fine. 11. That no evidence was called or representations made to refute certain negative comments made at the hearing which were not true or based on fact. 12. That is it my understanding that Mrs. Etter was an article clerk who was also surprised by the sentence imposed and advised my son after the hearing that this was not supposed to happen. 13. That Kevin's grandparents, who were the victims of the theft do not want Kevin to serve jail term and have offered to pay for the legal expense of having the sentence reviewed. consider the information disclosed in Larry Riley's two affidavits to be significant and relevant to the disposition that should be made in this appeal. The letter of March 18, 1996, from Ms. Nichols does not, in my opinion, have significant probative value. Ruby on Sentencing (4th ed.) at page 204 writes: The proper sentencing of first offenders requires that the sentencing judge exhaust all other possibilities before concluding that imprisonment is required... thus, in examining the possibility of custodial term, the court should ask whether it is "the only appropriate sentence to be imposed". One may be treated as if one were first offender, in appropriate circumstances, if custodial sentence has never been imposed, or even if one has served only very minor term of imprisonment. The notion that first offender should be treated leniently in the hope that lesser punishment would be effective has been characterized as "doubly so" in the case of youthful first offenders. There is presumption of fact that one who has not offended previously is capable of reform and not to be dealt with accordingly. Mr. Riley should be considered as youthful first offender. While there is authority that the "fitness" of the sentence should be assessed in light of the facts available to the trial judge, Ruby writes at page 462 that: The general position in Canada is that conduct after sentence may be considered if there has been change of circumstances after the fact of conviction and sentence, unknown to the trial judge, the court should exercise its discretion and act on it pursuant to the obligation to assess the fitness of the sentence at the time when the appeal is heard. The negative information contained in the pre-sentence report, not available to Mr. Riley or his counsel until the morning of the sentence hearing, obviously played significant part in the disposition reached by the sentencing judge. The Affidavit of Larry Riley of March 30, 1996, effectively illustrates that there is sound reason for concluding that rehabilitation has reasonable chance of success. In view of the age of Mr. Riley, and the absence of any significant past criminal record, as well as the information now available to us, I conclude that the sentence imposed is not fit. It is not in society's interest that Mr. Riley should be removed out of his present positive environment and placed in custody. I would grant leave to appeal, allow the appeal, set aside the sentence of five months' imprisonment, to be followed by probation of eighteen months, and substitute a sentence suspended for two years, subject to the same terms and conditions attached to the probation determined by the sentencing judge. PUGSLEY, J.A. Concurred in: FLINN, J.A. BATEMAN, J.A.: (Dissenting) have had the advantage of reading the judgment of my colleague, Pugsley, J. A., and need not review the facts underlying this appeal. accept that authority can be found, within s. 687 of the Criminal Code, augmented by the case law, to accept on appeal evidence of an offender's circumstances, subsequent to sentence. (See for example, R. v. Woof (1973), 1973 CanLII 1383 (ON CA), 14 C.C.C. (2d) 396 (Ont. C.A.); R.. v. Pigeon, 1969 CanLII 1007 (QC CA), 1970] C.C.C. 177 (Que. C.A.); R. v. Alfs (1974), 17 C.L.Q. 247 (Ont. CA); v. Shaw and Brehn (1977), 36 C.R.N.S. 358 (Ont. C.A.)) accept, as well, that the court, on sentencing appeal, can determine to receive the information on more informal basis than may be required under the procedure pertaining to the admission of fresh evidence, particularly where that information is favourable to the offender. Here, counsel for the offender made submissions at the appeal hearing on variety of matters, including the circumstances of the offender subsequent to conviction. He filed with the Court the March 18, 1996, letter from the substance abuse counsellor, Ms. Nichols, indicating that Mr. Riley had been assessed by her on February 7, 1996. agree with Pugsley, J. A., that the letter from Ms. Nichols has no probative value. It provided the Court with no useful information about Mr. Riley's past or present substance abuse. In view of the number of new issues raised by counsel for Mr. Riley on the appeal, he was given leave to file affidavit evidence in regard to: 1. Mr. Riley's alcohol and drug use since December 4, 1995, including assessment and counselling programs; 2. Mr. Rileys' employment since December 4, 1995, and his present employment opportunities; 3. His association, or lack of association, with offenders since December 4, 1995. In response, counsel for Mr. Riley filed the affidavit from Larry K. Riley, the offender's father. The contents of that affidavit are detailed in the judgment of Pugsley, J. A. The affidavit consists, in large measure, of hearsay opinion and speculation from Mr. Riley's father. With the exception of the employment for one week, there is little specific information as to how Mr. Riley has spent his time, since conviction, save that he has been living with his father. He deposes that his son "has an initial counselling appointment" with Ms. Nichols on April 23, 1996, "which was the earliest available date". There is no information as to when the appointment was requested. There is no indication in the letter from Ms. Nichols, filed at the hearing, that any further appointment was recommended or scheduled. Additionally, Mr. Riley's stated belief that his son has not abused drugs or alcohol while residing with him, is of marginal value, given the offender's history of daily use, as revealed in the Presentence Report. Similarly, while do not doubt the sincerity of Mr. Riley's assertion that his son has not been in the company other offenders since residing with him, it is questionable whether he is in position to speak to his son's associations. In my view, the affidavit from Mr. Riley is lacking in probative value. More troubling is the fact that no affidavit is filed from the offender. He is the person in the best position to speak to these issues. There was no explanation as to why his affidavit had not been filed. Absent, as well, is any elaboration from Ms. Nichols on the results of her February assessment of Mr. Riley. It was made clear to counsel for the appellant that the March 18 letter, filed at the hearing, provided inadequate information. In summary, find that the information on the appellant's situation since sentencing is not reliably nor properly before the court. It is left, then, to determine the fitness of the sentence at the time made. In v. Shropshire (1995), 1995 CanLII 47 (SCC), 102 C.C.C. (3d) 193, Iacobucci J., speaking for the court, said at paragraph 46 An appellate court should not be given free rein to modify sentencing order simply because it feels that different order ought to have been made. The formulation of sentencing order is profoundly subjective process; the trial judge has the advantage of having seen and heard all of the witnesses whereas the appellate court can only base itself upon written record. variation in the sentence should only be made if the court of appeal is convinced it is not fit. That is to say, that it has found the sentence to be clearly unreasonable. cannot say, taking into account the circumstances of the offence and this offender, that the sentence imposed by the trial judge was clearly unreasonable. Accordingly, would dismiss the appeal. BATEMAN, J.A. CANADA PROVINCE OF NOVA SCOTIA 1995 Case No. 558566 IN THE PROVINCIAL COURT HER MAJESTY THE QUEEN versus KEVIN DALE RILEY HEARD BEFORE: The Honourable Judge Jean-Louis Batiot PLACE HEARD: Windsor, Nova Scotia DATE HEARD: December 4, 1995 CHARGE: Between the 19th day of June, 1995, and the 20th day of June, 1995, at or near Newport Station, in the County of Hants, Province of Nova Scotia, did steal vehicle, to wit: 1995 Chevrolet Cavalier, Nova Scotia License AVB 881, VIN 3G1JC524055807941, the property of Helen Riley, of value exceeding five thousand dollars, contrary to Section 334 of the Criminal Code. COUNSEL: William N. Fergusson, Q.C., for the Prosecution Ms. Lorraine Etter, for the Defence C.A.C. No. 123233 NOVA SCOTIA COURT OF APPEAL BETWEEN: Kevin Riley and Her Majesty the Queen Respondent REASONS FOR JUDGMENT BY: Pugsley, J.A.

The appellant appealed his sentence of five months in prison to be followed by 18 months probation following his plea of guilty to the theft of his grandmother's car. Crown counsel acknowledged that this type of case would generally attract a suspended sentence with probation but for negative information in the pre-sentence report, which the appellant had not seen prior to sentencing. The appellant argued that he had seen the errors of his ways, was seeking employment, was truly remorseful, and had apologized to his grandparents, who were paying for the appeal in the hope of keeping him out of jail. The appellant was allowed to file affidavits as to the his progress concerning his problems with drugs and alcohol. Per Pugsley, J.A., Flinn, J.A. concurring, allowing the appeal and ordering a suspended sentence subject to terms, that the sentence imposed was not fit, and that it was not in society's interest that the appellant should be removed form his present positive environment. Per Bateman, J.A., dissenting, that the affidavits filed on behalf of the appellant were lacking in probative value. It is left, then, to determine the fitness of the sentence at the time it was made. Taking into account the factors before the sentencing judge, the sentence imposed could not be found to be clearly unreasonable.

c_1996canlii5615.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 28 Date: 2007 01 19 Docket: Q.B. 153/2005 Judicial Centre: Estevan BETWEEN: JASON SHIRE and HER MAJESTY THE QUEEN Counsel: David G. Kreklewich for the respondent Jeff Kalmakoff for the appellant JUDGMENT HUNTER J. January 19, 2007 [1] The respondent, Jason Shire (“Shire”), was charged with impaired driving contrary to s. 253(a) of the Criminal Code and driving while over .08, contrary to s. 253(b) of the Criminal Code. The Crown appeals the acquittal on the charge under s. 253(b) of the Criminal Code. [2] The charges arose out of an incident that occurred at Kenosee Lake, Saskatchewan, on November 12, 2004. The trial was held in the Provincial Court at Carlyle, Saskatchewan, on September 28, 2005. At trial, charge of possession of marihuana, contrary to s. of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 was stayed by the Crown. The respondent was acquitted of the Criminal Code charges. [3] Defence asserted at trial that the delay between the time the respondent was stopped and when the roadside screening demand was made took the demand outside of the “forthwith” requirement of s. 254(2) of the Criminal Code which reads, in part: 254(2) Where peace officer reasonably suspects that person who is operating motor vehicle or who has the care or control of motor vehicle whether it is in motion or not, has alcohol in the person’s body, the peace officer may, by demand made to that person, require the person to provide forthwith such sample of breath as in the opinion of the peace officer is necessary to enable proper analysis of the breath to be made by means of an approved screening device, and, where necessary, to accompany the peace officer for the purpose of enabling such sample of breath to be taken. [4] summary of the relevant facts found by the trial judge follow: The accused was stopped by the RCMP in Kenosee Village at approximately 12:30 p.m. on November 12, 2004. Two RCMP officers had attended there after receiving complaint by telephone of suspected impaired driver and possible drug use. Constable Hussey went to the driver side of the vehicle as the accused, Jason Shire, was getting out of the vehicle. Constable Lacelle went to the passenger side and dealt with the two passengers. Constable Hussey asked Mr. Shire if he had any alcohol or drugs in the vehicle; Mr. Shire said that there were none and that he was welcome to search the vehicle. Constable Hussey found liquor and other items that may be described as drug related. Constable Hussey had determined that Mr. Shire would receive liquor ticket and he took him and placed him in the back seat of the police car. He then spent approximately 17 minutes searching the vehicle and dealing with an obstreperous passenger; accept the officer’s evidence that he spent approximately half of the time on each of these two activities. During this period Constable Lacelle was dealing with the passengers. When Constable Hussey went back to the police car after the 17-minute delay he noted an odour of alcohol from the accused and made roadside screening demand which resulted in “fail” reading. The accused was taken to Carlyle detachment where he provided two samples of breath, both readings being 120 mgs. [5] At trial Crown argued that prior to searching Shire’s vehicle and having close contact with Shire in the police car that the RCMP constable did not have reasonable suspicion that he had alcohol in his body and therefore did not make screening device demand immediately. [6] On this appeal, the Crown submits that the trial judge accepted this and therefore there was no unlawful detention of Shire and the lapse of 17 minutes from the time he was placed in the back of the police vehicle until demand was made. The Crown submits that the trial judge was in error in concluding that the 17 minute delay was not warranted nor necessary and that there was no breach of Shire’s right to be free of arbitrary detention within the meaning of s. 9 of the Canadian Charter of Rights and Freedoms, being Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11 (the “Charter”). [7] The Crown submits that the detention of Shire in this case is not arbitrary. The test for arbitrary detention is an objective one. The police must be able to show an articulable cause as to why they are detaining an individual. Articulable cause requires constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is implicated in the activity under investigation. [8] The case at bar did not involve random vehicle stop. Constable Hussey stopped Shire’s vehicle in relation to complaint of vehicle squealing tires, and with possible drinking going on, near Kenosee Lake. He was also given description of the suspect vehicle. Shortly after arriving at Kenosee Lake, Constable. Hussey saw Shire’s vehicle, which matched the description of the vehicle that was the subject of the complaint. He stopped the vehicle in order to investigate this specific complaint, which it is submitted, dealt with potential violations under The Highway Traffic Act, S.S. 1984, c. H-3.1 and The Alcohol and Gaming Regulation Act, 1997, S.S. 1997, c. A-18.011. [9] The Crown submits that because this was not random vehicle stop, the case of R. v. Mellenthin, 1992 CanLII 50 (SCC), [1992] S.C.R. 615 and R. v. Ladouceur, 2002 SKCA 73 (CanLII) [2002] W.W.R. 209 (Sask. C.A.) are distinguishable. The Crown asserts that the complaint of squealing tires and possible drinking authorized the police to stop the vehicle in accordance with The Highway Traffic Act (s. 40(8)), and to conduct warrantless search of the vehicle (see The Alcohol and Gaming Regulation Act, 1997, ss. 151-153). Further, because whisky bottle was on the floor behind the driver’s seat, Cst. Hussey believed that he would be, at minimum, issuing ticket under The Alcohol and Gaming Regulation Act, 1997, ss. 151-153. [10] However, what Cst. Hussey chose to do was have Shire wait in the police vehicle while he conducted search of his vehicle. The Crown contends this was reasonable and practical to have Shire wait in the police vehicle because the search was being conducted at the side of the road. Once Shire was placed in the vehicle, he was detained because he was locked in the police vehicle and he could not exit. It took further 17 minutes for the vehicle search and before any demand was made of Shire. [11] The learned trial judge observed that because there was an open container of alcohol (i.e. in travel mug) found within easy reach of the driver’s seat that the police should have been prompted to make demand. Crown submits that the travel mug was found during the course of the search and after Shire had been placed in the locked police vehicle. However, this does not explain the further delay of 17 minutes before the demand was made. [12] Crown submits that the detention of Shire was not arbitrary because the police had specific lawful purpose for stopping the vehicle. Hence, Crown submits that the detention of Shire was lawful and there was no breach of the Charter. [13] In his reasons the trial judge stated as follows: Nevertheless, in my opinion, there were circumstances in this case that should have prompted Constable Hussey to embark on an investigation of the accused’s possible impairment by alcohol. Firstly, the complaint received alluded to possible impaired driver. Secondly, liquor was found in the vehicle with thermal cup within the reach of the driver. Thirdly, the accused had already got out of his vehicle before the officer approached and he therefore had less chance than normal to smell the accused’s breath. Fourthly, the peace officer admitted in cross-examination that he noted that the accused’s face was flushed, another of the common signs of consumption of alcohol. The situation, then confronting Constable Hussey was, at minimum, possible impaired driver. Despite this, he embarked on search of the vehicle, looking for liquor and/or drugs. Based on the officer’s own evidence, approximately one-half of the 17 minutes was spent conducting the search. Meanwhile the accused was locked in the police car and was given no right to counsel. It is my conclusion that the roadside screening test could have been performed at an earlier time if the police officer had proceeded immediately with his investigation of the potentially impaired driver. [14] Accordingly, while the trial judge says that he has no reason to disbelieve the police officer, this is immediately qualified by the trial judge when he reviewed the facts of the incident and it is apparent that the police officer should, in the circumstances, have had reasonable suspicion. Accordingly, he should have made the demand forthwith. Instead, he chose to place Shire in the police car, which he could not get out of, and continue to occupy some 17 minutes of time while searching Shire’s vehicle and attending to the other passengers. The disturbance caused by the passengers centred around the fact that Shire was confined to the police vehicle. The trial judge excluded the certificate of analysis and the charge under s. 253(b) was dismissed. [15] Shire submits that because the demand was not made “forthwith” as required by s. 254(2) Cst. Hussey acknowledged in his evidence that he observed Shire had flushed face as soon as he exited his truck and based on this and the complaint received, he knew he was dealing with suspected impaired driver: Q. Okay. And when you spoke to the driver you observed flushed face right away? A. Actually, observed the flushed face as he exited the vehicle and faced me. Q. So you knew you were dealing with suspected impaired driver at that stage? Yes, sir. With respect to why he placed Shire in the back of the police car even though he was not under arrest the police officer testified as follows: Q. Okay. So you then put Mr. Shire in the back of the police car, correct? A. That was once observed the open alcohol, the open bottle in the back seat. Q. So you’re saying you took an initial search of the vehicle and then placed him in the police car? A. In the fact that had the visual of the bottle of alcohol and determined that he would be, at minimum, getting an alcohol ticket. Q. Okay. You understand, and you’re police officer and you deal fairly frequently with The Alcohol and Gaming Regulations Act, is that correct? Q. And you understand you don’t have the power to arrest an individual under that Act? A. wasn’t arresting him at that point in time. Q. Okay. So then what are you doing when you are putting him in the police car? A. was detaining him while continued my the search of the vehicle and got ready to write the ticket. Q. Okay. And you’re saying you weren’t arresting him by putting him in the police car for that? A. No, sir, didn’t inform him he was under arrest at that point in time. Q. Okay. So then what authority did you have to put him in the police car? A. asked him to come back and sit in my car, and he complied. Q. Okay. Was there any other discussion at all? Anything else said to him about searching his vehicle? A. At that point in time? Q. At any point in time. A. Later on, after had discovered the items in the centre console, as described, the crusher and the papers and the roller, did go back to the vehicle and informed him of what had found and asked him was going to find something to the effect of would find anything else, and would he like to tell me where should be looking. Q. So you are asking him and this is all before rights to counsel are being given to him, correct? Yes, sir. Q. Yeah. And so you’re asking him where is the drugs in the truck? Yes, sir. Q. And how many times did you go to say that to him? A. To my recollection the one time. Q. And he said there was none? A. That’s right. [16] In R. v. Grant, 1991 CanLII 38 (SCC), [1991] S.C.R. 139, the court held that where the driver of vehicle was detained for 30 minutes while the police waited for roadside machine and the accused was not informed of his rights to counsel, that the demand after that time was not made “forthwith” and his right to counsel had been infringed by the delay. With respect to “detention” Lamer, CJC stated at p. 151: In my opinion, both the initial detention in the police car (based on the suspicion of driving while disqualified) and the subsequent detention in the police car (based on the suspicion of driving under the influence of alcohol) satisfy the test set out by this Court in R. v. Therens, 1985 CanLII 29 (SCC), [1985] S.C.R. 613, and Thomsen, supra, to establish “detention” within the meaning of s. 10(b) of the Charter. This means that Mr. Grant had the constitutional right to retain and instruct counsel without delay and to be informed of that right upon his initial detention. Here, the police officer did not inform Mr. Grant of his right to counsel at either stage of the detention. Mr. Grant was acquitted of the charge of driving while disqualified on other grounds, and therefore he has not challenged the lack of s. 10(b) warning upon his initial detention. Nevertheless, this initial detention triggered Mr. Grant’s s. 10(b) rights and the requirement for Charter warning did not come to an end when the officer subsequently demanded breath sample, ostensibly on the basis of s. 238(2). As have concluded above, the subsequent period of detention in the police car while awaiting arrival of the A.L.E.R.T. device was not authorized by s. 238(2). It follows from all of this that, irrespective the constitutional validity of s. 238(2) of the Code, Mr. Grant’s s. 10(b) were infringed in the case at bar. [17] In R. v. Cote (1992), 1992 CanLII 2778 (ON CA), 70 CCC (3d) 280 (Ont. CA) the court held that the word “forthwith” in s. 254(2) means that the sample be provided very shortly after the accused has been detained. In that case, while the accused was transported to the detachment where the screening device was located, it took some 14 minutes from the time of the demand until the device was ready and at no time was the accused informed of his right to retain and instruct counsel. It was held that the demand was unlawful and accused’s refusal did not constitute an offence. [18] Likewise in R. v. McVicker (1999 Sask. P.C.) when there was 15 minute delay, the court held that the delay in taking the test and in advising the accused of his rights to counsel violated the Charter and the evidence obtained from the subsequent breathalyser test was excluded under s. 24(2) of the Charter. See also: R. v. Koszman 1002 SKQB 201; (2001), 2001 SKQB 201 (CanLII), 206 Sask. R. 292 (Sask. Q.B.); R. v. Stillman (W.W.D.) 1997 CanLII 384 (SCC), [1997] S.C.R. 607 (SCC); R. v. Billette (E.) 2001 SKQB 150 (CanLII); (2001), 205 Sask R. 79 (Sask. Q.B.) [19] The essence of these many cases is that because the normal operation of s. 254(2) of the Criminal Code requires that there be no undue delay because person who is detained for demand for roadside screening it is implicit that there is breach of various Charter rights which is justifiable if there is no undue delay. This is why the language “forthwith” is used in the section. If there is undue delay, then the breach of Charter rights is not longer justifiable. [20] In the instant case, it is clear from the reasons of the trial judge that the officer ought to have had reasonable suspicion of impaired driving and there is evidence to support this conclusion and the trial judge fairly outlined his reasons for the same. In the instant case, it appears that the officer may have been anxious to search the vehicle in anticipation that more than just charge of impaired driving could be supported. Had he proceeded with quick search of the vehicle and then proceeded with the demand in short period of time, that may have been reasonable violation of the accused’s Charter rights. It is obvious from the evidence that in the course of searching Shire’s vehicle, the police officer returned to the police vehicle where Shire was detained and he had further conversation with him, following which he returned to continue his search of the vehicle. [21] In the circumstances of this case the delay of 17 minutes from when the police officer should have made the demand but did not and detained Shire in the locked police vehicle while he conducted a search of Shire’s vehicle without arresting him, advising him of his rights and conducting a search of his vehicle is a violation of potentially three separate Charter rights. The evidence of the subsequent breathlyzer and certificate of analysis is conscriptive evidence obtained following the breach of Shire’s Charter rights and the trial judge properly ruled that pursuant to s. 24(2) of the Charter the evidence should be excluded and the charge dismissed. [22] Accordingly, the roadside demand was not made “forthwith” as required by s. 254(2) of the Criminal Code. There was evidence from which the trial judge concluded that police officer was incorrect in conducting warrantless search of Shire’s vehicle and detaining him in the police vehicle while he proceeded without advising Shire of his right to counsel. It is implicit in the trial judge conclusion that if the police officer had investigated the impaired driving investigation promptly as he should have based had reasonable suspicion based on the circumstances before him, then the demand could easily have been made forthwith and s. 254(2) could easily have been complied with. The police officer chose otherwise. Shire’s Charter rights were violated and the trial judge was correct in excluding the evidence pursuant to s. 24(2) of the Charter. [23] Accordingly, the appeal is dismissed. J. D.C. Hunter

The respondent was charged with impaired driving contrary to s. 253(a) of the Criminal Code and driving while over .08, contrary to s. 253(b) of the Code. The Crown appeals the acquittal on the charge under s. 253(b) of the Code. At trial the Crown argued that, prior to searching the vehicle and having close contact with the accused in the police car, the RCMP officer did not have a reasonable suspicion that he had alcohol in his body and therefore did not make a screening device demand immediately. On appeal the Crown submits that the trial judge accepted this and therefore there was no unlawful detention and the lapse of 17 minutes from the time he was placed in the back of the police vehicle until a demand was made. The Crown submits that the trial judge was in error in concluding that the 17 minute delay was not warranted or necessary and that there was no breach of the accused's right to be free of arbitrary detention within the meaning of s. 9 of the Charter. HELD: The appeal is dismissed. It appears that the officer may have been anxious to search the vehicle in anticipation that more than just a charge of impaired driving could be supported. Had he proceeded with a quick search of the vehicle and then proceeded with the demand in a short time period that may have been a reasonable violation of the accused's Charter rights. It is obvious from the evidence that in the course of searching the vehicle, the police officer returned to the police vehicle where the accused was detained and he had a further conversation with him, following which he returned to continue his search of the vehicle. In the circumstances, the delay of 17 minutes from when the police officer should have made the demand but did not and detained the accused in the locked police vehicle while he conducted a search of the accused's vehicle without arresting him, advising him of his rights and conducting a search of his vehicle is a violation of potentially three separate Charter rights. The evidence of the subsequent breathalyzer and certificate of analysis is conscriptive evidence obtained following the breach of the accused's Charter rights and the trial judge properly ruled that pursuant to s. 24(2) of the Charter the evidence should be excluded and the charge dismissed.

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S.C.A. No. 02548 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION Clarke, C.J.N.S.; Hallett and Chipman, JJ.A. BETWEEN: STEPHEN LEWIS JENKINS and CHERYL ANN JENKINS Respondent Darrell E. Dexter and M. Jean Beeler for the Appellant Deborah I. Kitson‑Conrad for the Respondent Appeal Heard: April 14, 1992 Judgment Delivered: April 14, 1992 THE COURT: The appeal is dismissed as per oral reasons for judgment of Chipman, J.A.; Clarke, C.J.N.S. and Hallett, J.A., concurring. The reasons for judgment of the Court were delivered orally by CHIPMAN, J.A.: This is an appeal from corollary relief judgment of Mr. Justice Richard dividing matrimonial assets and from an order for support of the children of the marriage, with respect to its effective commencement date. Mr. Justice Richard divided the matrimonial assets equally. The appellant, the husband, contends that he should have included in those assets money manager bank account. The account was in the wife's name alone and was valued at $5,961.20 at the time of separation. By the time of trial, this balance was reduced to approximately $100.00. The wife\'s testimony was ‑that when she went back to work, the marriage was in difficulty and that it was unlikely that the parties would be staying together. Her uncontradicted evidence was that it was agreed by the parties at that time that what she made should be hers. She was attempting to save money to cover legal costs and additional expenses respecting herself and the children. Some of the money was used to purchase furniture. The trial judge observed in his decision that the furniture had already been divided equally by the parties and did not require consideration by him. We are satisfied that the trial judge did not err in not finding that this spent money should be included in the division, in the unusual circumstances of this case. Mr. Justice Richard fixed the support for the children at $1,000.00 per month and set the effective date retroactively to March 1, 1991. The appellant seeks an earlier effective date so that he can obtain income tax deductions for certain monies which he said he paid prior to March 1, 1991 covering largely expenses relating to the matrimonial home in which the wife was living with the children. We see no error on the part of Mr. Justice Richard in exercising his discretion to fix the effective date of the order as March 1, 1991. The appeal is dismissed, in the circumstances with costs, which we fix at $750.00, plus disbursements to be taxed. J. A. Concurred in: Clarke, C.J.N.S. Hallett, J.A. CANADA PROVINCE OF NOVA SCOTIA 1991 1201‑043175 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: CHERYL ANN JENKINS Petitioner ‑and- STEVEN LEWIS JENKINS Respondent HEARD BEFORE: The Honourable Mr. Justice K. Peter Richard PLACE HEARD: Halifax, Nova Scotia DATES HEARD: February 18, 1991 COUNSEL: Ms. Deborah Conrad, for the Petitioner Mr. Darrell Dexter, for the Repondent S.C.A. No. 02548 IN THE SUPREME COURT OF NOVA APPEAL DIVISION BETWEEN: STEPHEN LEWIS JENKINS and CHERYL ANN JENKINS Respondent REASONS FOR JUDGMENT BY: CHIPMAN, J.A. (Orally)

The trial judge's decision fixing a retroactive effective date for child support was also upheld as there was no error on the part of the trial judge in fixing the date.,the Appeal Division upheld the trial judge's decision which did not include in the division of matrimonial assets a bank account held in the wife's name alone where the uncontradicted evidence of the wife was that the spouses had agreed when the wife went back into the work force that anything she earned would be hers. At the time of this agreement the marriage was already in difficulty.

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16. 2002 SKQB 54 D.I.V. A.D. 1999 No. 02777 J.C. Y. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF YORKTON BETWEEN: MARTHA KLETTKE and IRVIN ERNEST KLETTKE RESPONDENT C.L. Gattinger for the petitioner G.J. Schmidt for the respondent JUDGMENT MALONE J. February 13, 2002 [1] The petitioner seeks an order for equal distribution of matrimonial property. [2] The parties married on August 27, 1988, each for second time, and separated on December 26, 1997. Each of the parties had significant assets at the time of the marriage which have increased in value since that date. The respondent's assets then, and at the time of the application herein, were greater in value than those of the petitioner. They both testified that at the time of the marriage they agreed to keep their assets separate and to not make claim on the assets of the other. [3] The petitioner, on cross-examination, agreed with the suggestion that "her money was hers and his money was his". She also testified that "We did not tell each other what to do with our money". The respondent testified that they agreed "each would own what they have". [4] They agreed further that after their deaths their entire estates would be left to their respective children. They each completed new wills shortly after the marriage to this effect. [5] One of the assets the petitioner owned prior to the marriage was residence in Melville. After the marriage the parties resided in the petitioner's home for approximately three and one-half years. The respondent left the Melville residence after the petitioner's daughter came to live with them and purchased condominium in Regina. At this time, he testified, he thought the marriage was over but, at the request of the petitioner, reconciliation was effected after brief separation. The parties resided in the condominium for approximately the next six years until the final separation occurred. [6] During the marriage the respondent purchased furniture for the condominium, 1993 Buick and camper for total agreed upon value of $24,000.00. After the separation the respondent sold the condominium for $84,000.00 which sum is being held in trust pending the outcome of this proceeding. [7] After the separation took place the petitioner returned to her Melville residence which the parties agree has value of $30,000.00 both at the time of the marriage and the time of the application. [8] The petitioner testified that her only expenses during the marriage were the maintenance of the Melville residence and her share of vacation costs. She testified the respondent, with the exception of the odd grocery bill, paid all of the expenses of the marriage and did not seek financial assistance from her in this regard. As result, her investments and assets increased significantly in value during the time the parties lived together. [9] The respondent takes the position that the petitioner is not entitled to any distribution of matrimonial property because of their agreement at the time of the marriage that each would maintain their own assets separately and not make claim on the assets of the other. The petitioner argues, in effect, that the agreement is not applicable to the present situation where the parties have separated and was only in effect during the time of the marriage or upon the deaths of the respective parties. [10] The only evidence in writing of the parties' intentions is the respective wills they executed shortly after the marriage leaving all of their assets to their respective children. There is, however, no conflict in the evidence of the parties as to the verbal agreement they made at the time of the marriage. [11] In my opinion this is an appropriate situation to apply s. 40 of The Family Property Act, S.S. 1997, c. F-6.3 which provides as follows: 40 The court may, in any proceeding pursuant to this Act, take into consideration any agreement, verbal or otherwise, between spouses that is not an interspousal contract and may give that agreement whatever weight it considers reasonable. [12] In the present circumstances where there is no conflict in the evidence of the parties as to their intention at the time of the marriage, the fact that they each executed a will to give effect to at least part of that intention and the respondent paid practically all of the day to day expenses of the marriage leads me to conclude that their verbal agreement should be considered binding upon each of them notwithstanding the fact the marriage ended by separation and not by death. Accordingly, find that only the value of the assets acquired after the marriage is subject to distribution between the parties and the increased value of the assets which the parties owned prior to the marriage is exempt from distribution. [13] Furthermore, I conclude that the condominium purchased by the respondent to be the "family home" as provided for in s. 2(1)(a) as set out in The Family Property Act. This provision provides as follows: 2(1) In this Act; "family home" means, subject to subsection (2), property: (a) that is: (i) owned by or leased to one or both spouses, or in which one or both spouses have an interest, including, without limiting the generality of the foregoing, an interest pursuant to partnership or trust or an interest as purchase pursuant to an agreement for sale; or (ii) owned by corporation in which one or both spouses have an interest where, by virtue of that interest, one or both spouses are entitled to occupy the property as family home; and (b) that is or has been occupied by one or both spouses as the family home or that is mutually intended by the spouses to be occupied by one or both of them as the family home; and that is: (f) unit or additional unit in condominium plan or replacement plan, as the case may be, as defined in The Condominium Property Act, 1993, including the owner's share in the common property as shown on that plan. [Emphasis added] [14] I am not satisfied there is any "extraordinary circumstance" as provided in s. 22(1) of the Act which would prevent the value of the family home from being divided equally between the parties. [15] also conclude that the value of the Melville residence owned by the petitioner at the time of the marriage to be exempt from distribution in accordance with the parties' agreement at the time of the marriage. It has not increased in value and the maintenance thereof was born solely by the petitioner during the years of the marriage. Although it may be argued that the Melville home was at one time the "family home" of the parties, designate the Regina condominium to be the family home of the parties pursuant to s. 22(3) of the Act as the parties resided therein for most of the marriage. [16] The petitioner therefore is entitled to judgment for half of the value of the assets acquired after marriage being:➢ One-half of the value of the condominium $42,000.00➢ One-half of the value of the furniture, vehicle and camper $12,000.00$54,000.00 [17] In the circumstances make no order as to costs.

The wife sought an order for equal distribution of matrimonial property. They married in 1988, each for a second time, and separated in 1997. Each had significant assets at the time of the marriage, which had increased in value. They agreed at the time of the marriage to keep their assets separate and to not make a claim on the assets of the other and that their entire estates would be left to their respective children. The wife argued the agreement was not applicable to the present situation where they have separated and was only in effect during the time of the marriage or upon their deaths. HELD: The wife was entitled to judgment for $54,000. 1)There was no conflict in the evidence as to the verbal agreement made at the time of the marriage nor as to their intention. This is an appropriate situation to apply s.40 of the Family Property Act. The fact they each executed a will to give effect to that intention and the husband paid practically all of the day-to-day expenses led to the conclusion their verbal agreement should be considered binding, notwithstanding their marriage ended by separation rather than death. 2)The condominium purchased by the husband was the 'family home' as provided for in s.2(1)(a). There was no extraordinary circumstance as provided in s.22(1), which would prevent equal division of the value of the family home. The Melville residence owned by the wife at the time of the marriage was exempt in accordance with their agreement. It had not increased in value and the wife solely paid its maintenance. 3)No costs.

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