Datasets:

YSFarag

/

CanLii

like 2

J. 1998 S.H. No. 151846C IN THE SUPREME COURT OF NOVA SCOTIA IN THE MATTER OF: The Testators’ Family Maintenance Act, R.S.N.S., c. 465 and IN THE MATTER OF: The Matrimonial Property Act, R.S.N.S. 1989, c. 275, BETWEEN: INDERJEET SANDHU and ROBERT STREET and MADAN KAPAHI, Executors of the Last Will and Testament of Rajbir Singh Sandhu, deceased Defendants HEARD: at Halifax, Nova Scotia, before The Honourable Mr. Justice Jamie W.S. Saunders, on November 30, December 1, and 3, 1998 DECISION: May 10, 1999 COUNSEL: Kevin MacDonald, solicitor on behalf of the Executors Peter Rumscheidt, solicitor on behalf of Dr.Gurpreet Sandhu Roberta J. Clarke, Q.C., solicitor on behalf of Dr.Inderjeet Sandhu Timothy Matthews, Q.C., solicitor on behalf of of the residuary beneficiaries: Françoise Heve, Philippe Cendres Michel Cendres, and charity, Petites Soeurs des Pauvres D. Michael Willcock, solicitor on behalf of the 5th residuary beneficiary, the Mother Theresa of Calcutta Missionaries of Charity SAUNDERS, J. PROCEEDINGS: Three separate actions were commenced following the death of Rajbir Singh Sandhu on August 31, 1997. The first involved Proof in Solemn Form (the “probate action”) identified as 1998, Probate File No. 48976. The second action was commenced by Dr. Gurpreet Sandhu who claimed to be the son of the late Rajbir Singh Sandhu and sought entitlement to his late father’s estate by 1998, S.H. No. 151158C. The third action was taken by Inderjeet Sandhu who claimed to be the wife of the late Rajbir Singh Sandhu and sought entitlement to her late husband’s estate by 1998, S.H. No. 151846C. Following certain pre-trial communications among counsel and discovery examinations of important witnesses, it became obvious that there were circumstances surrounding Professor Sandhu’s wills and death which might reasonably be considered suspicious. Several procedural agreements were reached. By consent, proof in solemn form would be required, with the case to be tried by Justice of the Supreme Court of Nova Scotia, sitting in Probate. Jurisdiction to hear such case flows from the Probate Act, and is based on the historic statutory, common law and equity authorities of the Probate Court, pre-confederation court modelled on the English Probate Court. By contrast, jurisdiction with respect to the relief claimed by Gurpreet Sandhu and Inderjeet Sandhu (in the second and third actions, respectively) pursuant to the Testators’ Family Maintenance Act and the Matrimonial Property Act, is reserved to the Supreme Court of Nova Scotia. These matters cannot be combined into one action or proceeding. They may be heard together, with the consent of all parties and the approval of the presiding judge, acting in both his Probate and Supreme Court roles, but they remain separate, jurisdictional proceedings. Counsel for all parties agreed that there ought to be single hearing of all issues so as to avoid repetition of viva voce testimony and duplication of effort, thus saving time and expense. It was further agreed that the evidence placed before me at the hearing might be applied to all three proceedings. At series of pre-trial conferences counsel established, under my direction, an efficient order for calling and questioning witnesses. Initially it was thought that separate decisions would be filed in the three actions. However, mid-trial partial settlement obviated the need for such an approach. There were myriad of factual and legal issues to be considered but perhaps the three most central matters to be decided at trial were: (1) Proof in Solemn Form of the Last Will and Testament of Rajbir Singh Sandhu, challenged on the basis of his (alleged) testamentary incapacity, (2) The claim of his “son” Gurpreet Sandhu under the Testators’ Family Maintenance Act, and (3) The claim of his “wife” Inderjeet Sandhu under the Testators’ Family Maintenance Act and the Matrimonial Property Act and the Pension Benefits Act. To put these distinct claims in context one must briefly recall the extraordinary life of the late Rajbir Singh Sandhu. BRIEF BACKGROUND TO HIS LIFE The circumstances arising from the evidence at trial could form the basis of marvellous novel or film. Truth is often much more compelling than fiction. Professor Rajbir Singh Sandhu (hereinafter “Rajbir”, “Raj” or “Professor Sandhu”) was born in India on September 30, 1937. He studied law. His parents were devout Sikhs. On March 6, 1960 Professor Sandhu and Inderjeet were married. They resided in New Delhi, India where Professor Sandhu taught law. Their son Gurpreet was born on December 4, 1961. In July, 1963 Professor Sandhu left New Delhi to study at the Yale Law School in New Haven, Connecticut. While in America he met Marcelle Cendres. They began relationship. Inderjeet and Rajbir Sandhu separated in 1967. Rajbir and Marcelle Cendres participated in what some described as civil marriage ceremony at the French Embassy in New Delhi in 1968. Immigration records show that in 1970 Professor Sandhu came to Canada. He named Marcelle as his wife. He made no reference to Inderjeet or Gurpreet. For period of approximately five years from 1968 to 1973, Professor Sandhu had no contact with his son. Through efforts initiated by Inderjeet, Gurpreet re-established communication with his father. They remained in contact on regular basis for the remainder of Professor Sandhu’s life. Rajbir often visited India to see family and friends and on each occasion he would spend time with both Inderjeet and Gurpreet. From the early 1970's until their respective deaths in 1997, Professor Sandhu and Marcelle were professors at Dalhousie University. Throughout their time in Halifax, they represented to friends, colleagues and the community at large that they were husband and wife. But for one or two close friends in Canada (who learned the “truth” quite by accident) they did not tell anyone of the existence of Inderjeet or Gurpreet. In 1987 Gurpreet came to the United States to study medicine at the Mayo Clinic in Minnesota. He married Nicole Punkay Sandhu in India on August 8, 1993. They continued to live in Minnesota, both pursuing careers in molecular biology and medicine. Professor Sandhu and Marcelle visited Gurpreet and Nicole in Minnesota on several occasions. Inderjeet Sandhu claims that she was never notified either verbally or in writing of any intention by Professor Sandhu to obtain divorce. There is some evidence suggesting that Professor Sandhu became Muslim in 1968 so as to “divorce” himself from Inderjeet in order to marry Marcelle. Others suggest that Rajbir never “became” Muslim and that any such “evidence” really points to an elaborate fraud on the part of Rajbir to legitimize his subsequent “marriage” to Marcelle and the lives they subsequently assumed together as “husband and wife” in Nova Scotia. In December, 1996 Marcelle was diagnosed with ovarian cancer. Her health deteriorated until her death on August 2, 1997. Throughout Marcelle’s illness Professor Sandhu was grief-stricken. His family physician, Dr. Arthur Trenholm diagnosed Professor Sandhu as suffering from depressive disorder. In late July, 1997 Professor Sandhu consulted with Frank Powell, Q.C. regarding certain changes he and Marcelle wished to make to wills which they had drafted in 1996. After meeting with them and obtaining instructions, Mr. Powell completed the new wills and attended the hospital where the wills were executed on July 25, 1997. Pursuant to their reciprocal July wills, Professor Sandhu and Marcelle were to be each other’s sole beneficiary in the event of the other’s death. If one predeceased the other, the residue was to be divided into ten shares with five shares to go to “Gurpreet” and one share each to Françoise Heve; Philippe Cendres; Michel Cendres (the niece and two nephews of Marcelle who reside in France); the Petites Soeurs des Pauvres (a French, Roman Catholic charitable order); and the Mother Theresa of Calcutta Missionaries of Charity (a Roman Catholic charitable order based in India). When briefing Mr. Powell, Professor Sandhu described Gurpreet as being distant cousin who lived in India. Following Marcelle’s death on August 2, 1997, Professor Sandhu’s emotional state deteriorated. His friends testified at trial as to his health and behaviour. Raj was also in telephone contact with Gurpreet, Nichole and Inderjeet both before and after Marcelle’s death. Those persons also testified as to what they considered to be unusual behaviour on his part, particularly after Marcelle’s death. On August 22, 1997 Professor Sandhu met again with Mr. Frank Powell for the express purpose of making certain changes to his July 25, 1997 will. Aside from deleting references to Marcelle, the major change to the July will was the deletion of Gurpreet completely as residuary beneficiary. When Mr. Powell inquired as to why Gurpreet was being deleted, Professor Sandhu advised that Gurpreet was distant cousin with whom he had had little contact and whose exact whereabouts were unknown. Mr. Powell revised the will as instructed. This second will was executed August 22, 1997. Pursuant to its terms, the residue of the estate was to be divided into five equal shares among Françoise Heve, Philippe Cendres, Michel Cendres, the French charity and the Indian charity. Ten days later Professor Sandhu was found dead at his cottage in Piggott Lake. The Medical Examiner’s autopsy report revealed number of drugs in Professor Sandhu’s system. Whether he committed suicide or suffered an accidental death was impossible to prove or rule out with certainty. Rajbir Sandhu had been prescribed medication for ischemic heart condition and had been taking other painkillers, sedatives and blood pressure pills. The Warrant of Appraisement, Inventory and Valuation filed by the Executors on January 20, 1998 assigns value of $3,090,257.00 to Professor Sandhu’s estate. It would appear that additional assets have been located since, such that the gross value of Rajbir Sandhu’s estate is even higher than that listed in the Appraisal. MID-TRIAL AGREEMENT Mid-way through the trial counsel announced partial settlement. There would no longer be any challenge to the August 22, 1997 will. The parties agreed that it had been proven in solemn form. Counsel advised that they had settled the claim (1998, S.H. No. 151158C) brought by Dr. Gurpreet Sandhu under the Testators’ Family Maintenance Act such that he would receive 35 percent of his late father’s estate with the remaining 65 percent to go to the residuary beneficiaries. This left for resolution the remaining claim for relief (1998, S.H. No. 151846C) brought by Dr. Inderjeet Sandhu. With issues of testamentary capacity and proof in solemn form out of the way, Roberta Clarke, Q.C. then took the lead as counsel for her client, the plaintiff, Dr. Inderjeet Sandhu, supported by Peter Rumscheidt on behalf of Inderjeet’s son, Dr. Gurpreet Sandhu. Timothy C. Matthews, Q.C. and Kevin MacDonald then took on the role as counsel for the “defendants” representing the interests of the residuary beneficiaries, and the proctors of the estate, respectively. All counsel agreed that each of the parties’ costs were to be paid out of the estate on solicitor/client basis. ANALYSIS OF THE CLAIM ADVANCED BY INDERJEET SANDHU To understand the various claims advanced by Inderjeet Sandhu it is necessary to put them in context. To do that one must review in some detail the separate lives lived by Rajbir and Inderjeet Sandhu, he in Canada and she in India. While certain issues were resolved, in the middle of trial, when the challenge to Rajbir’s testamentary capacity was abandoned and his son Gurpreet’s law suit was settled, some of the evidence led in both respects bears repeating as it impacts upon the continuing claims for relief sought by Inderjeet Sandhu. Inderjeet was born in New Delhi, India in 1935. She met Rajbir in 1958. Their families lived about mile apart. Both households were devout Sikhs. They agreed to marry. It is the custom that at formal engagement party the bride’s family gives gifts to the groom’s family. The groom’s family then presents gifts to the bride’s family at the wedding ceremony. Rajbir and Inderjeet were married in formal Sikh ceremony at her mother’s house on March 6, 1960. Inderjeet was medical intern at the time of their marriage. Raj had finished his first law degree. He worked for law firm in New Delhi and also taught part-time as professor at the Faculty of Law. As was the tradition, they moved in with his parents and lived in their home. Their son Gurpreet was born December 4, 1961. Inderjeet worked as doctor while pregnant up until week before delivery. Five weeks after the birth of their son, she returned to work and embarked on post graduate studies, all the while living with Raj’s parents. She received small stipend from her work as doctor but all of their living expenses were assumed by Raj’s parents. In April, 1963 Raj received Fulbright scholarship to attend Yale University in New Haven, Connecticut. He intended to study for his doctorate in law. Inderjeet planned to join him in the United States and find work as doctor. To do that she had to fulfill the requirements of the foreign student education equivalence examination. She studied and passed the exam and applied for residency in the United States. Raj’s Fulbright scholarship was modest one and the laws in India were such that its citizens were prohibited from sending money out of the country. Consequently it was decided that Inderjeet would have to move to America in order to earn living and help support their family. Raj went first. They communicated by letters and occasional telephone calls. Inderjeet hoped to study onctology and accepted position in Buffalo, New York. Unfamiliar with North American geography she wasn’t sure how far Buffalo was from New Haven, Connecticut but she and Raj were confident that they could visit each other on weekends as their circumstances would permit. Raj was in no position to send money back to her and Gurpreet in India. The only money he had was his scholarship. Up until the time that she and Gurpreet moved to Buffalo Raj’s parents supported them. In May, 1965 Raj’s mother became ill. Raj flew home to India. She died in early June, 1965. Inderjeet was obliged to report for duty in Buffalo by July 1. Raj was detained in India about ten days attending to his late mother’s estate. She had been successful gynecologist. Upon her death he inherited most of the property held in her name. The tradition was for the mother to pass on her estate to the children. The evidence suggests that Raj’s mother owned substantial jewellery and cash at the time of her death and left considerable wealth to Raj by her Will. After Inderjeet and their son Gurpreet moved to Buffalo they would meet Raj on weekends and holidays. They lived and travelled together as man and wife. He introduced them as such to his friends in America. All of this was corroborated, at trial, by photographs of the three of them shown vacationing and picnicking with their American friends. While visiting in New Haven, Inderjeet heard rumours that Raj was seeing “French woman named Marcelle”. She confronted him. He denied an affair and insisted that they were just friends. Out of concern for their marriage, Inderjeet asked for transfer from Buffalo to hospital in New Haven, so that she could be closer to Raj. She and Gurpreet moved into Raj’s apartment and she joined the staff at St. Raphael Hospital. She continued to hear rumours about Marcelle. They argued lot about what this woman was doing to their marriage. She urged Raj to “come to his senses” and “be normal husband”. Raj told her to stop “overreacting”. In December, 1965 after fulfilling six months of her residency requirements Inderjeet and Gurpreet returned to India and moved back in with Raj’s parents in New Dehli. She found work in India and resumed her post graduate studies. By January, 1967 she qualified as specialist in internal medicine. Raj continued to communicate with her by letter and telephone. He promised that when he finished his doctoral studies at Yale he would return to India. Inderjeet next saw Raj in September, 1967 when he returned to India. He said that he had been awarded his LL.M from Yale. They spent three “normal” weeks together as family. Then household servant informed Inderjeet that Raj was seeing “that French lady”. Inderjeet could tell that something was wrong. She confronted her husband. Raj put the blame on Marcelle for “following” him back to India. There were heated arguments. Inderjeet urged her husband to end the affair. Finally Raj told Inderjeet to “get out of his father’s house”. Given the traditions and customs of the time Inderjeet had “no choice” but to take Gurpreet and flee. With nothing but the clothes on their backs they moved in with her own parents. She lost all personal contact with her husband until 1975. The story now shifts to Canada where we pick up the lives of Rajbir and Marcelle. Documentation from the Canadian Immigration Office shows that on September 13, 1970 Rajbir applied for landed immigrant’s status. He named Marcelle M. Sandhu, age 38, of 5222 Green Street, Apartment 28, Halifax, Nova Scotia as his wife. There is no reference whatsoever to Inderjeet or Gurpreet Sandhu. The space for “Religious Denomination” is left blank. Rajbir states that upon arrival he will have “$32,000" cash. For the next 27 years Rajbir and Marcelle lived together, and described themselves to others, as husband and wife. Each was employed as full professor in separate faculties at Dalhousie University. Rajbir taught in the Business department. Marcelle lectured in languages. By all accounts Rajbir loved Marcelle and was devoted to her for the rest of his life. Frank Powell, Q.C. was first introduced to them in June, 1993. He had put his condominium up for sale. Rajbir approached him to buy it and introduced Marcelle as his wife. After that property closing Mr. Powell next heard from Professor Sandhu in July, 1997. Rajbir explained that his wife was dying and that they had drawn up Wills themselves which they wanted Mr. Powell to review. He met with them and studied the reciprocal Wills each had prepared. Eventually Mr. Powell received instructions to prepare new Wills which, with the exception of certain book royalties Marcelle was getting, “mirrored” each other’s reciprocal bequests. Essentially each left everything to the other and if both died then their Wills provided for “gifts over” to the named residual legatees. “Gurpreet Singh Sandhu” was named the major residuary beneficiary, someone Rajbir identified to Mr. Powell as being his “cousin in India”. Mr. Powell was perfectly satisfied as to the capacity of both Marcelle and Rajbir and the “July wills” were duly executed. Around August 10, 1997 Rajbir telephoned Mr. Powell to say that his wife had died. He sought Mr. Powell’s advice as to whether he would have to do anything to probate his late wife’s estate. About week later they spoke again at which time Rajbir told Mr. Powell that he was thinking of making revision to his own will, specifically to delete the bequest to his “cousin in India”, Gurpreet Sandhu. They met in Mr. Powell’s office on August 22 where again Rajbir confirmed his instructions to revise his July will both to account for Marcelle’s death and to request that the bequest to Gurpreet be deleted. When Mr. Powell asked for further particulars, Rajbir said that Gurpreet was distant cousin of his, that they had been out of touch for long time and that he did not know his whereabouts. To this Mr. Powell replied that Mr. Rajbir had no legal or moral obligation to provide for such distant relative. Mr. Powell testified that Rajbir and Marcelle seemed “very close”, that Rajbir had told him he had “no family, no children of his own” and that it was going to be difficult to adjust without Marcelle. He pressed Rajbir to make sure he understood that if he died the whole of his estate would pass to Marcelle’s relatives and the two named charities. There was no question in Mr. Powell’s mind that Rajbir understood precisely what he was doing. Mr. Powell’s evidence coupled with testimony from friends and his family physician Dr. Trenholm leave little doubt that while naturally devastated by Marcelle’s death he was with their support coping and making plans for the future. His testamentary capacity was in no way affected. There is no basis for concluding that Rajbir’s death was caused by suicide. To the extent it bears at all upon these proceedings, am content to say that while the immediate cause of his death was mixed drug overdose one ought not to speculate whether such an overdose was deliberate or accidental. Friends were unanimous in their praise and fond recollection of Rajbir and Marcelle. Both were described as being very articulate and intelligent. Some friends recalled Rajbir as being “a very sweet man, not especially talkative, rather introverted, very private and not prone to openly express his feelings”. By contrast Marcelle seemed “more open” and “more dominant than Rajbir”. To all of their friends they seemed genuinely happy and loving couple. It does not speak ill of Rajbir to observe that he lived double life. Some of his closest friends who testified at trial expressed their dismay at his deception. Robert A. Street is one of the executors. He holds graduate degrees in law and business. He taught at the Dalhousie School of Business for 24 years and came to know Rajbir professionally and socially. He always knew Marcelle to be Rajbir’s wife. Mr. Street never heard word about “prior” marriage or son. It came as complete shock to him to learn at the funeral service for Rajbir that Rajbir left 35 year old son, Gurpreet. Madan Kapahi is another executor of the estate. He moved to Canada in 1967. Ironically he met Marcelle at Dalhousie when she approached him in January, 1968 to learn Hindi before she went to India to meet her fiancé Rajbir Sandhu and his family. She was then professor in the French department at Dalhousie. Later in the Fall of 1968 in Halifax she introduced Mr. Kapahi to “her husband Rajbir”. They began life-long friendship. He described them as “very unique”. Each was strong, affectionate and loving individual. They valued their privacy. Rajbir never disclosed that he had been married before or that he had son. Once Mr. Kapahi said he ran into one of Rajbir’s old law school friends from New Dehli who remarked “It’s too bad his first marriage didn’t work out .”. Mr. Kapahi never presumed to pry or pursue it. He met Marcelle’s brother and some of her other relatives who visited Canada from time to time. Rajbir and Marcelle took them touring in Nova Scotia. For some years Rajbir and Marcelle travelled to France every summer and stayed in farmhouse they acquired. When Messrs. Street and Kapahi searched Rajbir’s home after his death they found no photographs of Gurpreet or Inderjeet anywhere. Mr. Kapahi recalled that Rajbir taught Muslim law at Dehli University. He said Rajbir came from devout Sikh family. While he may not have been active in the Sikh temple in Halifax Mr. Kapahi said that Rajbir did not follow any other faith. Dr. Salba Rubilowicz has lived in Halifax the last 16 years. She is retired obstetrician/gynecologist. She first met Marcelle after enrolling for French classes in 1982. They became very close friends. Marcelle introduced Rajbir as her husband and both families spent great deal of time together. She, like other witnesses, confirmed the love and devotion between the two. When Marcelle was diagnosed with cancer Rajbir was desperate. He never left Marcelle alone. In late June when Marcelle’s chemotherapy was over she and Rajbir travelled to Loudres in France where they stayed about 10 days. Upon their return to Canada Marcelle was re-admitted to hospital where she remained two weeks before her death on August 2, 1997. Marcelle told Dr. Rubilowicz that she and Rajbir had met at Yale University and were married in New Delhi, India. As far as Dr. Rubilowicz was concerned Marcelle was Roman Catholic. She never implied that she had converted to any other faith. Her husband, Dr. Mieczyslaw Rubilowicz is retired opthomologist who echoed the same sentiments expressed by his wife. To them Rajbir and Marcelle were “always couple” and it came as huge shock to learn that Rajbir left son and wife. Dr. Krishna Ray is retired general surgeon who met Rajbir and Marcelle shortly after his moving to Canadian 1984. He and his wife Rachelle socialized frequently with the Sandhus. They never suspected that Rajbir had son or “other” wife. While Rajbir and Marcelle made happy life for themselves in Halifax, life proved difficult for Inderjeet in India. Her parents provided clothing, food and shelter for her and her son, Gurpreet. That and her meager salary as physician was all she had. As single mother looking after their son she could not afford the time away from home expected of medical specialist. She found employment as general practitioner at state-run insurance scheme. She worked part-time in order to accommodate their young son’s needs. In 1978 she switched employers to avoid transfer which would have prevented her from spending much time with Gurpreet. She remained with that employer until retirement in April, 1993. Throughout her career she worked as salaried general physician. described earlier how she came to be banished from her in-laws’ home when Raj ordered her out in 1967. Gurpreet testified that he remembered the day vividly. For him things “changed overnight”. He and his mother were forced out leaving his toys, clothes and even his pet dog behind. Gurpreet lived with his mother and grandparents from 1967 to 1984, when Inderjeet acquired her own small house. Later he emigrated to the United States for his studies at the Mayo Clinic. Eventually he obtained Ph.D in molecular biology and in June, 1997 commenced his residency in internal medicine. As noted, Inderjeet lost all personal contact with Raj from 1967 to 1975. However, she received letter from Raj dated January 5, 1968 in which Raj professed to have converted to Islam proclaiming himself to be “Muslim”. Raj wrote: “. therefore as your husband (I) command you to embrace Islam.” Inderjeet testified that she could not make any sense of this letter. She wondered if her husband had lost his mind. She did not respond to it. She surmised that it may have been written to provoke her in some way. Now, with benefit of hindsight, she and her son Gurpreet suspect that this was the first step in an elaborate fraud masterminded by Raj to in some way “legitimize” his “marriage” to Marcelle. Inderjeet, Gurpreet and other witnesses who appeared before me consistently refuted any suggestion that Rajbir had become Muslim. Their evidence is compelling. Inderjeet said that Raj came from devout Sikh family. He continued to worship at the Sikh Temples whenever he visited in India. On August 8, 1993 their son Gurpreet married Nicole. Raj and Inderjeet prepared the wedding announcement and invitation to reception (Exhibit 9) wherein they cordially invite their friends: “. to celebrate the wedding of their son Gurpreet .” (underlining mine) At Rajbir’s request, Inderjeet sent several of these invitations to Raj’s friends directly. It was full Sikh religious ceremony. Raj attended, identified himself to the Sikh priest as the father of the groom and fully participated at the wedding ceremony (as is documented in the photographs produced, Exhibit 2B). Inderjeet said that Muslim would never bow deferentially to Sikh holy book. Her husband bowed, knelt and performed all other traditions and customs any Sikh father would at Sikh ceremony. He sang Sikh verses and prayers during the ceremony. All of this was confirmed by Gurpreet and Nicole Sandhu. Further corroboration was provided by Sudesh and Swinder Bhalla, retired teacher and professional engineer who were very close friends of Raj and Marcelle during their years together in Halifax. The Bhallas are Sikh. They considered Raj to be Sikh. Raj accompanied Swinder Bhalla to the Sikh Temple where they worshipped together. Mr. and Mrs. Bhalla appear to be the only two persons in Canada who came to learn Raj’s secret: that he had left wife in India and that they had grown son. They discovered it by accident when visiting friends of their own in India in 1993. Their young son had been playing with other children, heard “the story” and came running in excitedly to inform his parents. Mr. and Mrs. Bhalla quieted him to avoid scene. On the return flight home Mr. Bhalla determined to find out the truth. Later that week they were invited to dinner at Raj and Marcelle’s home. Swinder asked Raj whether the rumours were true? Raj, in the presence of Marcelle, told Sudesh and Swinder Bhalla: “Yes, have wife and son.” Raj asked them how they learned and pleaded with them not to tell anybody else, adding “No one knows”. From that point forward, according to Mr. and Mrs. Bhalla, Raj often mentioned both Gurpreet and Inderjeet in conversation. He was generous in his praise of his son Gurpreet and how proud he was that he had become highly trained specialist in the United States. Raj also remarked how happy he was that his wife Inderjeet had not “put poison in my boy’s mind” about him. He acknowledged what fine job she had done in rearing him alone. The Bhallas never heard Raj or Marcelle say that Raj and Inderjeet had been “divorced”. It was not until 1984 that his mother showed Gurpreet the 1968 letter his father had written purporting to command her to become Muslim. To him it was patently ridiculous. He said that in the Sikh religion every faith is equal, every person has equal rights and one cannot command another to do any such thing. Similar opinions were expressed by other witnesses at trial. For example, on cross-examination Mr. Bhalla said that it would be preposterous to expect Sikh woman to “obey command” from her husband either in 1968 or 1999. No husband would ever seriously suggest to his spouse that she should convert to Islam and expect his wife to “obey”. In the Sikh faith important decisions are made mutually. Witnesses testified that the so-called “Muslim marriages” have become common type of fraud in India, such scams perpetrated so as to enable man to have more than one wife. Gurpreet felt strongly that his late father invented the letter as scam in order to bolster his “marriage” with Marcelle, knowing full well that the State of India would never accept such “fraud”. He and other witnesses testified that Indian authorities are now clamping down on such bogus “weddings”. There were two other events which impact upon Inderjeet’s outstanding claims and therefore require some elaboration. It is hardly surprising that after Rajbir banished Inderjeet and their son from his parents’ home an estrangement occurred. But in 1973 Inderjeet learned that her father-in-law longed to see her and his grandson Gurpreet. She telephoned and that same evening he came by to visit. The three resumed close relationship until his death in 1992 at 93 years of age. In the 20 years before his death Inderjeet also received considerable correspondence from her father-in-law (some of which was collected and introduced at trial). He always referred to Inderjeet as his “daughter” and signed his letters “Your affectionate daddy”. It wasn’t until 1975 that Inderjeet saw Rajbir again. He had come to visit Gurpreet. During one such visit he asked Gurpreet if he thought his mother would have any objection to seeing him. Gurpreet replied “Why don’t you ask her?” upon which Inderjeet came out from another room, met Raj face to face, and they talked through the night. They continued to communicate on regular basis for the rest of Raj’s life. Whenever he came to India typically every year or every other year he always dropped in to see Inderjeet. In 1984 an important event on the world stage had profound effect upon the Sandhu family. Prime Minister Ghandi was assasinated by her own Sikh bodyguards. This treason sparked rampage of killings, burnings and riots. Gurpreet testified that 5,000 Sikhs were murdered. He and his mother were forced into hiding because they were known as the Sikhs who lived on their street. Inderjeet was terrified that enemies would hunt down their son and kill him. They telephoned Raj in Halifax begging him to do something to provide safe haven for their son. Rajbir broke down and sobbed that he couldn’t do anything. He admitted that he had lied on his immigration papers when he entered Canada. He had never declared Inderjeet as his wife or Gurpreet as his son. He tearfully refused their request to find safe passage out of India for Gurpreet. He feared deportation or some other serious consequence if Gurpreet’s existence became known, thus revealing that he had provided incomplete and/or false information to immigration officials when entering Canada in September, 1970. According to Inderjeet and Gurpreet, Raj considered his refusal to help as amounting to treachery on his part. Guilt from failing to protect his son in the face of such imminent danger haunted Raj for the rest of his life. It came to the surface at Gurpreet’s wedding to Nicole in India in August, 1993. Raj asked to see them privately and met with them for two hours on the day of their wedding. In the midst of Nicole, Inderjeet and Gurpreet, Raj broke down and wept. He was very remorseful. He told them that his whole life was “lies” and that he had “ruined his own life and theirs too”. He felt trapped. He did not know how to undo the damage but said he would try. Nicole vividly recalled Raj telling them: “I cannot believe that because of me, my son might have been dead, instead of married today” alluding to his refusal in 1984 to offer protection and safe haven to his son. It was necessary to provide such detail from the lives of these principal characters so as to lend meaningful context to the analysis and treatment of the claims advanced by Inderjeet Sandhu. turn now to consideration of those demands. INDERJEET SANDHU’S CLAIMS Dr. Inderjeet Sandhu claims entitlement to portion of Rajbir Sandhu’s estate under all of the following statutes: Matrimonial Property Act, R.S.N.S. 1989, c. 275, and Pension Benefits Act, R.S.N.S. 1989, c. 340, as amended 1992, c. 27; 1993, c. 35, and Testators’ Family Maintenance Act, R.S.N.S. 1989, c. 465. Her claims are incremental, in other words include demands under each of those statutes and are not expressed as alternative claims. THEORIES OF THE PARTIES Position of Dr. Gurpreet Sandhu As noted, Dr. Gurpreet settled his claim brought under the Testators’ Family Maintenance Act mid-way through the trial. The terms of the settlement as disclosed by counsel were such that Dr. Gurpreet Sandhu will receive 35 percent of his late father’s estate with the remaining 65 percent to go to the residual legatees. In final argument, his counsel Mr. Rumscheidt acknowledged that notwithstanding the fact that any award received by Inderjeet would have negative impact upon his own settlement, he fully supported the submissions and demands advanced by his mother’s counsel. Position of Dr. Inderjeet Sandhu Briefly stated Dr. Inderjeet Sandhu says she satisfies the threshold definitions of “spouse” under both the Matrimonial Property Act and the Pension Benefits Act, and “dependent” under the Testators’ Family Maintenance Act. There are no statutory criteria disqualifying her from entitlement. She and she alone undertook the rearing and education of their son without any financial contribution whatsoever from Rajbir Sandhu. Fairness, equity and all three legislative schemes are said to justify substantial entitlement to her late husband’s estate. Admittedly much of Rajbir Sandhu’s wealth was acquired after he and Inderjeet had separated. But, he had substantial assets before he and Inderjeet parted and much of it came into his hands through her dowry from her parents on their wedding day. Such wealth must be taken into account when assessing Inderjeet’s entitlement to division of matrimonial assets. While it may be hard to trace this wealth from their wedding in 1960 through to their separation in 1967 up to the time of Raj’s death in 1997, difficulty of assessment is no bar to relief. The defendants have not proven that Rajbir and Marcelle were “married”. Under the law of India non-judicial divorce is possible as between two spouses provided both are Muslim. If only one spouse is Muslim then the marriage can only be dissolved by judicial proceedings. The unilateral talaq divorce of the wife by the husband requires that notice be given to the wife (Agreed Statement of Facts Exhibit No. 1, clauses and 7). Obviously Indeerjeet is not Muslim. The sheer weight of the evidence in this case is that Rajbir was and remains Sikh. Indeerjeet never received any notice that she was “divorced”. In India Rajbir acknowledged that she was his wife and the mother of their son. He assisted her in obtaining her state-funded pension after retiring as physician. Thus, Inderjeet Sandhu says that the defendants have failed to prove that she and Rajbir were not married. Rajbir devised an elaborate scheme to have more than one wife. Despite his good qualities he perpetuated fraud and lived most of his life as bigamist. Since Rajbir had not retired at the time of his death, his surviving spouse is entitled to minimum of 50 percent of the comminuted value of his accrued pension at Dalhousie. Since Marcelle Cendres predeceased Rajbir, we do not have to speculate about two competing claims from two surviving “spouses”. There is corroborative evidence confirming Rajbir’s promise to “take care of” Inderjeet. Since she would have no way of knowing about the applicability of the Matrimonial Property Act or the Pension Benefits Act to her situation until after Rajbir’s death, the doctrine of laches is no bar to her claim to statutory relief. The fact that Gurpreet has settled his claim has no bearing on his mother’s independent action. Rajbir failed to adequately provide for Inderjeet Sandhu in his August, 1997 will. The Court should stand in the shoes of “wise and judicious” spouse and make sufficient provision for her as “dependent” of the testator; woman who sacrificed her whole life in order for their son to enjoy very comfortable standard of living. Position of the Residual Legatees None of the three statutes upon which the plaintiff relies were designed or intended to right old wrongs. It is an unhappy fact that their marriage dissolved in the mid-60's. Whatever sympathy one might have for Inderjeet’s situation, fault is irrelevant. An abandoned spouse must get on with his or her life. Dr. Inderjeet Sandhu did just that. She carried on. She became self-reliant. She never asked her husband for financial assistance because she did not need it. She came from well-to-do family of her own. They supported her. Not having asked Rajbir for any help during his lifetime, why should she expect any now? Their “marriage” was over long ago. More than 30 years is very long time. Laches has to work against Dr. Inderjeet Sandhu and stand as bar to her claim for relief. One should not speculate about the 1968 marriage in India between Rajbir and Marcelle. There is no evidence to warrant the conclusion that it was fraud. One should not “convict” Rajbir Sandhu on such flimsy evidence. The trail is cold. It is idle speculation to think that after Marcelle’s death Rajbir was going to change everything and make things right for Inderjeet. Even if he inferred such thing, his actions never matched his words. Marcelle died August 2, 1997. Even if Raj really felt that he had made mess of his own life, he had time to make amends. He consulted with Frank Powell, Q.C. and prepared new will. Yet in this new will he gave nothing to Gurpreet. And never in any will did he give anything to Inderjeet. The vast bulk of Rajbir’s estate was accumulated long after his separation from Inderjeet. None of it qualifies as matrimonial assets. In equity, tracing of these “assets” would be impossible. The Dalhousie pension plan never contemplated “two spouses” co-existing. Any such interpretation would have disasterous results. It would become “lottery” of who dies first. None of these legislative schemes were ever intended to apply to relationship that ended more than 30 years ago. Rajbir Sandhu knew about Inderjeet’s financial situation and the Court ought to infer that he was satisfied with her circumstances. He did not feel that she was in need of any help. There must be point when any moral or legal obligation ends. Position of the Proctors of the Estate Inderjeet Sandhu’s claim is “all or nothing”. Either she is entitled under all of the legislative schemes, or she is not. The proctors submit that there is no merit to any of her claims. However, this is an extraordinary case and may warrant unique approach. The proctors suggest middle ground opining that Inderjeet Sandhu may have legitimate claim on the basis of constructive trust and/or unjust enrichment. One might apply contractual model as workable solution; in other words under the statute of limitations one would have period of 10 years (6 years plus the “forgiveness” years 10 years). This approach would invite the Court to trace assets from the time of their wedding in 1960, determine what had been converted to their use as couple and subsequently Rajbir’s own use and then apply other factors including changing valuations for the price of gold and other jewellery and wedding gifts. Employing such method led the proctors to propose that fair and appropriate award (acknowledged as being entirely discretionary) to Inderjeet Sandhu would be $150,000.00 Canadian with any tax liability for such sum payable by the recipient. REASONS FOR JUDGMENT From the evidence at trial that accept, am prepared to find the following material facts: (1) Rajbir Sandhu and Inderjeet Sandhu were married on March 6, 1960 following traditional Sikh religious wedding ceremony; (2) Dr. Gurpreet Sandhu is the natural biological son of Rajbir and Inderjeet and was born in India on December 4, 1961; (3) Inderjeet never received any notice of any divorce proceedings contemplated or commenced by Rajbir; (4) gradual estrangement developed between Rajbir and Inderjeet on account of Rajbir’s extra-marital relationship with Marcelle Cendres; (5) The marital relationship between Rajbir and Inderjeet effectively ended in the autumn of 1967 when Rajbir banished his wife and young son from his parents’ home; (6) The evidence as to whether or not Rajbir and Marcelle went through legitimate civil marriage ceremony at the French Embassy in New Delhi, India on May 2, 1968 as result of which valid marriage certificate was issued, is inconclusive; am unable to decide on the basis of the evidence before me whether Raj and Marcelle were ever in fact legally married; (7) Rajbir and Marcelle met at time that Rajbir was studying law at Yale University. They fell in love and began relationship that lasted for the rest of their lives; (8) From at least the time Rajbir entered Canada in September, 1970, he and Marcelle lived together as husband and wife and portrayed themselves as such to friends and colleagues in Canada for 30 years. They were happy, loving and devoted couple; (9) From all outward appearances Rajbir remained member of the Sikh faith until his death in August, 1997. There is no persuasive evidence to seriously suggest that he had ever converted to Islam; (10) Inderjeet is Sikh; (11) There is no evidence whatsoever that Marcelle Cendres was ever Muslim. Persuasive evidence suggests she was Roman Catholic; (12) Inderjeet took on complete responsibility, financial and otherwise, for nurturing, loving and educating their son Gurpreet; (13) Rajbir was extremely proud of both Gurpreet, and Inderjeet for the job she did in rearing him; (14) Rajbir, in his own way, continued to inquire periodically of the health and well-being of Gurpreet and Inderjeet in an attempt to keep himself informed about important events in their lives; (15) Rajbir told both Gurpreet and Inderjeet on several occasions and in the presence of friends and other corroborative witnesses that if they ever needed financial assistance they need only ask and he would be happy to provide it; (16) Rajbir and Marcelle did not keep the existence of Gurpreet and Inderjeet secret from Marcelle’s closest relatives. (See Answers to Interrogatories, Exhibit 11] (17) When confronted by friends, Mr. and Mrs. Bhalla in Halifax, Rajbir admitted that Inderjeet was his wife and that Gurpreet was their son; (18) In India Rajbir made public pronouncements (for example the invitation to their son’s wedding; documentation he facilitated in order for Inderjeet to receive her state-funded pension) that Inderjeet was his wife and that Gurpreet was their son; (19) Rajbir failed to provide for Gurpreet in his August ‘97 will, or Inderjeet in any previous wills; (20) On July 25, 1997 Rajbir and Marcelle executed reciprocal wills; (21) On August 2, 1997 Marcelle died in Halifax hospital from the effects of ovarian cancer; (22) On August 22, 1997 Rajbir executed new will after consulting and instructing Frank Powell, Q.C.; (23) On August 31, 1997 Rajbir died in his cottage at Piggott Lake under circumstances that while suspicious were, ultimately, inclusive. have applied these and other facts to the legislative schemes and legal and equitable principles that arise in this extraordinary case. After much reflection reject Inderjeet Sandhu’s claims under both the Matrimonial Property Act and the Pension Benefits Act, but allow her claim under the Testators’ Family Maintenance Act. will now explain my reasons. Others may judge the morality and honour of the late Rajbir Singh Sandhu. My task is quite different. Quite apart from his abandonment of his son and the mother of his child in 1967 must dispassionately consider the intervening 30 years and answer the question aptly posed by Mr. Matthews in argument: “What if anything is the moral obligation between two spouses given the fact that their marriage broke down 30 years ago and that they have been living apart and financially independent from one another ever since?” Inderjeet Sandhu was once the wife of Rajbir Sandhu. In her mind they were never divorced. She continues to think of herself as his wife. Yet they were estranged for 30 years prior to Rajbir’s death. He and Marcelle had lived happily together as husband and wife for almost 30 years. Beyond handful of people no one knew his secret or that Gurpreet and Inderjeet ever existed. It was not until Raj’s own funeral that his closest friends and executors learned the truth. In light of those extraordinary circumstances does Inderjeet qualify as “spouse” for the purpose of making claim against Rajbir’s estate under either the Matrimonial Property Act or the Pension Benefits Act? think not. There are important policy and substantive reasons which, in my judgment bar her claim for relief. Neither statute was designed nor intended to apply to circumstances such as these. To my mind, Inderjeet would not have claim under either legislative scheme, had Marcelle survived. How then can Inderjeet’s ability to sue arise or be enhanced by the death of Marcelle? Although the Matrimonial Property Act is retrospecitve in application, it must also be acknowledged that this statute and similar legislative schemes in other provinces had only come into effect years after Raj and Inderjeet’s marital relationship had collapsed. The preamble to this statute is also interesting. It emphasizes the values sought to be recognized and protected by the legislation. For example, the desirability to: .strengthen the role of the family .” or recognize: “. the contribution made to marriage” or provide: .for the settlement of the affairs of the spouses upon the termination of marriage relationship. .” (underlining mine) This and the substantive provisions of the Matrimonial Property Act make it clear that its purpose is to ensure the fair distribution of assets accumulated during marriage by taking into account the role and contribution made by each spouse. Rajbir and Inderjeet married in 1960. Three years later Rajbir was in the United States studying law at Yale University. Inderjeet reported for work as medical resident at hospital in Buffalo, New York on July 1, 1965. Not surprisingly cracks developed in their marriage when she first heard rumous about Rajbir carrying on an affair with “a French woman”. One might reasonably infer that this extra-marital relationship developed sometime between 1963 (his arrival in New Haven, Connecticut) and 1965 (Inderjeet’s arrival there). The stress of his suspected infidelity and the strain of pursuing career in medicine with new baby in foreign country proved too much. Inderjeet and Gurpreet returned to India. Subsequently discovering that Marcelle had followed Rajbir to New Delhi only added to the marital discord. Rajbir effectively abandoned his wife and child by banishing them from his parents’ home in 1967. They never again lived together as husband and wife. Thus “the termination of their marriage relationship” (to quote the language of the Matrimonnial Property Act) occurred in 1967 at the latest and, arguably, even sooner. Had Marcelle survived her husband or had either she or Raj ever sought distribution of matrimonial assets, there is no question but that she would have qualified as Rajbir’s “spouse” under the definitions of that word found in Section 2(g) of the Act. find it inconceivable that Marcelle’s claim to division of their matrimonial assets under the Act as Raj’s spouse of 30 years could be trumped by an action instituted on the part of Inderjeet, the wife Raj deserted in 1967. Quite apart from these policy reasons there are other impediments to her claim for relief. Section defines “matrimonial assets”. Specifically excluded among other things are: (a) gifts, inheritances received by one spouse from person other than the other spouse except to the extent to which they are used for the benefit of both spouses or their children; (b) real and personal property acquired after separation unless the spouses resume cohabitation.” Nothing in the inventory filed by the executors constitutes matrimonial assets since, in my opinion, none of it arose or existed before Rajbir and Inderjeet separated. That is complete answer to her demand. While it is true that many valuable gifts were given to Rajbir and Inderjeet at their wedding in 1960, what happened to those things afterwards is unknown. What is certain is that they are not in the hands of the executors. There is no conclusive evidence as to whether they exist and if so their whereabouts or their present value. The plaintiff has speculated that the $32,000.00 sum declared on Rajbir’s immigration documentation represents Rajbir’s “conversion” of her dowry. Another explanation is just as plausible. It could as easily have been Rajbir’s inheritance of some of the money left to him by his mother when she died in 1965. In 1999 these things are simply not identifiable. One cannot draw any conclusions as to the origins of this $32,000.00 sum, assuming it was truthful declaration at the time. substantial portion of Rajbir’s estate comes from his and Marcelle’s working history as professors at Dalhousie University, for example their salaries, insurance and pension benefits. It is impossible to conclude, to the required standard of proof, that anything in Rajbir’s estate can be linked to any gift or asset or sum of money to which Indeerjeet would be entitled. This inadequacy of proof is, of itself, reason to defeat her claim. So too her demand under the Pension Benefits Act.. Marcelle would, arguably, qualify under any of the four alternative definitions of “spouse” set out in Section 2(aj) of the Act. She and Rajbir identified each other as their “spouse” in their reciprocal wills. Exhibit describes their respective applications for pension benefits at Dalhousie University. Rajbir and Marcelle designated each other as their beneficiary. There can be no doubt that Rajbir intended that Marcelle would receive his pension and visa versa. They maintained that position throughout the 1970's, 1980's and 1990's. Inderjeet would never have claim to the pension benefits Marcelle earned during her lifetime. Neither does she have claim to the pension earned by Rajbir over the 30 years he was employed at the University. Inderjeet’s “marriage” to Rajbir (for the purposes of entitlement to his pension) had ended years before Rajbir’s benefits started to accrue. Section 61ff contain the provisions applicable to “pension entitlement on marriage breakdown”. The “spouse” may apply for division of the pension benefits “earned during the marriage”. Such language is found in, for example, Section 61(2) and (5). Subsection (6) speaks of “termination of the marriage relationship”. Even assuming Inderjeet qualified as Rajbir’s “spouse” which she clearly does not she would only be able to seek: “. such proportion, not exceeding one half of the pension benefit earned during the marriage.” (underlining mine) No part of Rajbir’s pension was earned during his marriage to Inderjeet. That is complete answer in rejecting the plaintiff’s claim. Had Marcelle survived she could have claimed 100 percent of her entitlement to Rajbir’s pension benefits. Inderjeet would not have had any claim at all. Inderjeet cannot be better off simply because Marcelle died first. agree with Mr. Matthews’ submission that the order of their death should be irrelevant; otherwise it becomes lottery of who dies first. The Dalhousie pension plan does not contemplate nor was intended to apply to competing “spouses” co-existing and entitled to advance distinct claims. To presume what would likely have happened is hardly speculation. Rather, failing to consider its likelihood would amount to ignoring facts which are pivotal to an accurate assessment of these extraordinary circumstances and their legal consequences. Further, as matter of common sense it seems untenable that Dalhousie University professor would have any legal or moral obligation to give his pension benefits to woman from whom he had been separated for 30 years, while denying those same benefits to the woman with whom he had lived happily for more than 30 years. Finally, it seems to me that in order to prove she qualifies as the “spouse” of Rajbir Sandhu it would in the unique circumstances of this case where Rajbir and Marcelle are both dead be incumbent upon Inderjeet to satisfy me that Rajbir lived the last 30 years of his life as bigamist. For how else can she deny the compelling evidence from witnesses in Canada and relatives in France who all described the loving, devoted and life-long relationship between Rajbir and Marcelle? Bigamy is most serious allegation. In Canadian culture it draws an odious social stigma. It invites criminal prosecution with severe penal consequences. For example, Section 290 of the Criminal Code provides: “290.(1) Bigamy Every one commits ‘bigamy’ who (a) in Canada, (i) being married, goes through form of marriage with another person, (ii) knowing that another person is married, goes through form of marriage with that person, or (iii) on the same day or simultaneously, goes through form of marriage with more than one person; or 291. (1) Punishment Every one who commits bigamy is guilty of an indictable offence and liable to imprisonment for term not exceeding five years.” Obviously in this, civil case, party does not have to satisfy the criminal burden of proof beyond reasonable doubt. Here, in order to succeed on this aspect, Inderjeet Sandhu must adduce strong and cogent evidence to civil standand but commensurate with such serious allegation. It is much the same as we find in civil cases of arson or fraud where the insurer’s defence attempts to show that the policyholder has, in the civil context, engaged in conduct approaching criminal behaviour. Some of the documentation and sworn answers to Interrogatories introduced at trial supports the assertion that on May 2, 1968 Rajbir Sandhu and Marcelle Cendres participated in civil form of “marriage ceremony” at the French Embassy in New Delhi, India.However, it is impossible to say on balance of probabilities that such an attendance constituted for the purposes of this case lawful marriage ceremony thereby legitimizing the resulting relationship between Rajbir and Marcelle as being one of “husband and wife” from that day forward. The evidence is inconclusive as to both such lawful, legitimate ceremony and the necessary ancilliary events or circumstances leading up to it. While the plaintiff has raised many suspicious circumstances surrounding Rajbir Sandhu, am unable to conclude, on balance of probabilities, that his marriage to Marcelle was fraud or that he ought be characterized as bigamist. Dying within days of the other, and before any litigation ensued, Rajbir and Marcelle never had the chance to “give their side” of the story. Their inability to defend themselves cannot be taken lightly. Their explanation of events may have been quite different than the interpretation urged upon me by Gurpreet and his mother. It would be unsafe and unfair to presume fraud on the evidence before me. I have reached a different conclusion in my analysis of Inderjeet’s claim under the Testators’ Family Maintenance Act. By contrast the focus of this statute is the adequacy of provisions made by the testator for: the proper maintenance and support of dependent .” The Act is concerned with the adequacy of maintenance due qualified dependents. It protects the family of the testator against manifestly wrong treatment by enforcing the testator’s moral obligation to make proper and adequate provision for the support of his wife and children. The question to be decided is not what the judge would do in the circumstances of the testator. Rather the issue is whether the testator has failed in his legal and moral duty to dependent as required by law. The claimant need not show actual or urgent need or true dependency in order to succeed. To justify interference with will court must find failure to provide proper maintenance and support and moral claim to entitlement. In deciding what is proper the Court looks beyond the bare necessities of existence. It should consider the magnitude of the estate, the circumstances of the claimant, the strength of his or her moral claim to share in the estate and the situation of others having claims upon the testator. It is not the Court’s role to rewrite the will of the testator; rather to intercede in those appropriate cases so as to correct moral wrong. The award the Court may make in substutition for such testamentary omission is that which wise and just testator would have considered himself morally bound to make had he been aware of all the relevant circumstances. (See generally Garrett v. Zwicker (1976), 15 N.S.R. (2d) 118 (N.S.S.C.A.D.)) The analysis involves the exercise of very broad judicial discretion. am entitled to consider “all relevant circumstances”. While some guides to my inquiry are found in Section this list is not an exhaustive one. Here my investigation is not so closely or technically restricted by the meaning or application of the definition of “spouse”. Phrases like: “married to each other” “form of marriage” “cohabitating” “after separation” “cohabitation” “a marriage” “living together as husband and wife” “marriage breakdown” “earned during the marriage” are absent from the provisions of the Testators’ Family Maintenance Act. As the name implies, the Act is concerned with the testator’s family. Inderjeet, once his wife and the mother of his child was, during the time they lived together, an integral part of Rajbir’s family. The word “dependent” is defined as: means the widow or widower of testator .” Arguably, and in the circumstances of this special case, am prepared to find that Inderjeet, once the wife of Rajbir, qualifies as his widow and fulfills the definition of “dependent” under the Testators’ Family Maintenance Act. She has established a strong moral claim and a failure to provide proper maintenance. She is not disqualified by any of the criteria described in Section 5. There was no delay amounting to laches in advancing her claim for relief. While the love and respect between Inderjeet and Gurpreet was obvious when they appeared before me at trial, the settlement reached by Gurpreet is immaterial to my consideration of his mother’s claim. In determining what is fair and appropriate award for Inderjeet give considerable weight to several factors. She sacrificed great deal both professionally and financially, in order for Gurpreet to achieve what he has in life. These deliberate choices on her part undoubtedly held her back from much more lucrative work as physician in India. The responsibility of rearing Gurpreet and providing for his superb education (apart from scholarships) fell to her alone. Rajbir was extremely proud of the job Inderjeet had done in rearing their son. Since none of that effort financial or otherwise ever became Raj’s responsibility, Inderjeet’s work, sacrifice and devotion all amount, in effect, to “services” rendered by Inderjeet towards Rajbir. One might also take into account the considerable nursing care and other support she provided Rajbir’s father before his death in 1992 at the age of 93. Rajbir and Inderjeet maintained cordial relationship up until the time of his death. He did take an interest in her well-being. have already found that he promised to help her if she ever asked for financial assistance. Her “failure” to ask is no bar to relief. Neither does it suggest luxurious comfort on her part. On the contrary find that Inderjeet never asked Rajbir for money for many reasons, among them: pride, honour and the reasonable expectation that both she and Rajbir would live long lives. No one had reason to expect that Rajbir would die so young. His father and other relatives had lived well into their 90's. She had good reason to think he would provide for her in his later years as he had promised. accept Inderjeet’s evidence as to her present circumstances and status in life. She was obliged to retire at age 58. Her only “savings” consist of couple of thousand rupees bearing interest at the rate of percent per annum. Dr. Sandhu’s pension is meager by North American standards. In argument counsel stipulated they had calculated her pension as having value of approximately $175.00 U.S. per month. find that Rajbir was ignorant of Inderjeet’s true financial situation. find that she is only able to survive with the financial assistance she receives from time to time from her brother. Such was never revealed to Rajbir Sandhu. Inderjeet broke down and wept when she disclosed such assistance to me during her testimony. find that had Rajbir been fully informed he would have made adequate and generous provision for her maintenance and support in his will. The fact that he neglected to make such provision in the 20 days between Marcelle’s death and executing his new will on August 22, 1997 is hardly significant because his thinking was preoccupied in coping with Marcelle’s death. Finally, place considerable weight on the guilt that burdened Rajbir throughout his life, perhaps most dramatically revealed when he confessed to his own cowardice and treachery at his son and daughter-in-law’s wedding in 1993. Here again Raj renewed his promise to provide for Inderjeet and their son. In light of these circumstances and an estate worth more than $3 Million it would offend all notions of decency, fairness and equity to deny significant award to Inderjeet Sandhu for her proper maintenance and support. CONCLUSION After considering all relevant factors and the weight I have assigned to them in the exercise of my discretion, I award Inderjeet Sandhu the sum of $285,000.00 Cdn. payable out of the estate of the late Rajbir Singh Sandhu such a sum exclusive of any tax liability which may arise. In other words should such an award attract tax consequences then the liability for such tax is payable out of the estate with the result that the sum of $285,000.00 is net in the hands of Inderjeet Sandhu. Among other things the award takes into account the magnitude of the estate, and the substantial legacies to be paid out to Gurpreet and the other residual legatees. award solicitor and client costs to Gurpreet, to Inderjeet, to the executors and to the residuary beneficiaries in one bill of costs with the proviso that as Mr. D. Michael Willcock did not participate at the trial, costs awarded to the Missionaries of Charity should reflect the limited involvement of their counsel in the litigation. Should be wrong in the approach have taken to the analysis and application of the provisions of the Testators’ Family Maintenance Act, then would have awarded the same sum, on the same basis, to Inderjeet Sandhu in equity founded upon the doctrine of unjust enrichment. In my view such an award could easily be supported on the basis of the years in which they cohabited, the professional and other sacrifices made by Dr. Inderjeet Sandhu both in India and in America, such things prompting the resulting “gains” achieved by Rajbir Sandhu, all at the expense of Inderjeet Sandhu. had the benefit of excellent work by counsel in this case. am most grateful for their courtesy, preparation and advocacy throughout. wish to save the last word for Inderjeet and Gurpreet Sandhu. understand how painful it was to have to speak of such private matters in the presence of strangers. It was privilege for me to hear of your exceptional lives and accomplishments, and be offered brief glimpse of your faith, ancestry and culture, about which you should be justly proud.

A wife claimed part of the estate of her estranged husband. The Court considered the applicability of the Testator's Family Maintenance Act, the Matrimonial Property Act, and the Pension Benefits Act. Awarding the plaintiff $285,000 out of the $3 million estate, that under the Testator's Family Maintenance Act the claimant need not show actual or urgent need or true dependency in order to succeed. To justify interference with a will a court must find a failure to provide proper maintenance and support and a moral claim to entitlement. The court must consider the magnitude of the estate, the circumstances of the claimant, the strength of his or her moral claim to a share in the estate, and the situation of others having claims upon the testator. This involves a very broad judicial discretion. Here, the plaintiff had established a strong moral claim and a failure to provide proper maintenance.

d_1999canlii1536.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 51 Date: 2007 02 01 Docket: FLD No. 330 of 2005 Judicial Centre: Saskatoon, Family Law Division BETWEEN: EVAN GAVELIN and NEVADA PATEMAN Counsel: T. Turple for the petitioner D. Revering for the respondent FIAT RYAN-FROSLIE J. February 1, 2007 1) The respondent, Nevada Pateman, applies for an interim order granting her sole custody of the parties’ two children and child support, including s. 7(a) child care expenses retroactive to the date of separation, being October, 2005. The petitioner, Evan Gavelin, requests joint custody with specified access. While he acknowledges an obligation to pay child support, there is an issue as to his income and whether the interim order should be made retroactive. Custody/access 2) The parties, who were never married, lived together “off” and “on”. They had two children, namely, Marie Gavelin, born February 28, 2003 (age 3) and Nolan Evan Gavelin, born December 28, 2004 (age 2). The parties separated for the last time in October, 2005. Following the separation, the children remained with their mother. Both parties reside in the same district, approximately 35 kms. apart. Mr. Gavelin, who is employed by drilling company, works two weeks and then has one week off. 3) Following the separation, the parties entered into verbal agreement that Mr. Gavelin would have parenting time with the children every third weekend from Saturday to Tuesday during his week off. Mr. Gavelin’s contact with the children terminated on March 28, 2006 and he has not seen the children since that date. Mr. Gavelin alleges this is because Ms. Pateman refused to allow access, except on her terms. Ms. Pateman alleges it was Mr. Gavelin’s choice not to see the children. Whatever the truth may be, it is uncontroverted that Mr. Gavelin has not seen the children for ten months. When he last saw the children, Kayden was barely two years of age and Nolan, just 15 months. 4) Mr. Gavelin wants joint custody, with the children being in his care on his week off for period of five days. His next week off commences February 1, 2007. Mr. Gavelin also attests that he will be laid off for the months of April and May, 2007 and during that period he would like to have the children alternating weeks. 5) Ms. Pateman works as hotel supervisor Tuesdays through Saturdays from 4:45 p.m. to 11:30 p.m. She wants sole custody with Mr. Gavelin having access every third weekend from Saturday to Tuesday as per their verbal agreement. 6) Section of The Children’s Law Act, 1997, S.S. 1997, c. C-8.2 provides for presumption of joint custody where parents of child have cohabited after the birth of the child. That is the situation here. There is nothing in the evidence before me sufficient to rebut that presumption on an interim basis. The purpose of interim orders is to establish temporary parenting arrangement pending trial or final resolution of the matter. In making such orders, Courts try to disrupt the lives of the children as little as possible and, for that purpose, often adopt the “status quo” subject always to that arrangement being in the best interests of the children. The status quo in this case is represented by the verbal agreement which the parties entered into following their separation, that is, that Mr. Gavelin would have the children during his week off from Saturday to Tuesday. Given the age and circumstances of the children, this appears reasonable on an interim basis. The verbal agreement, however, did not address the fact that Mr. Gavelin would be laid off for two months in the spring. It is reasonable that, during this period, his contact with the children should be increased. 7) Mr. Gavelin has not seen his children for significant period of time. The children, particularly, Nolan, may have limited memories of him and, accordingly, he must be “reintroduced” into their lives. phase-in period is required. 8) There shall be an interim order that the petitioner and respondent have joint custody of the children, Kayden Marie Gavelin, born February 28, 2003 and Nolan Evan Gavelin, born December 28, 2004, with primary residence and day-to-day decision-making to be with Ms. Pateman. 9) Mr. Gavelin shall have parenting time with the children, specified as follows: (i) Friday, February 2, 2007 from 4:00 p.m. to 8:00 p.m.; (ii) Saturday, February 3, 2007 from 4:00 p.m. to 8:00 p.m.; (iii) Tuesday, February 6, 2007 from 10:00 a.m. to 4:00 p.m.; (iv) Wednesday, February 7, 2007 from 10:00 a.m. to 4:00 p.m.; (v) Friday, February 23, 2007 from 4:00 p.m. to 8:00 p.m.; (vi) Saturday, February 24, 2007 from 10:00 a.m. to 4:00 p.m.; (vii) Tuesday, February 27, 2007 from 10:00 a.m., overnight to Wednesday, February 28, 2007 at 10:00 a.m.; (viii) Friday, March 16, 2007 from 4:00 p.m. to 8:00 p.m.; (ix) Saturday, March 17, 2007 from 10:00 a.m., overnight to Sunday, March 18, 2007 at 10:00 a.m.; (x) Tuesday, March 20, 2007 from 10:00 a.m., overnight to Wednesday, March 21, 2007 at 10:00 a.m.; (xi) Thursday, April 5, 2007 from 4:00 p.m. to 8:00 p.m.; (xii) Friday, April 6, 2007 at 10:00 a.m., overnight to Sunday, April 8, 2007 at 5:00 p.m.; (xiii) Tuesday, April 10, 2007 at 10:00 a.m. to 4:00 p.m.; (xiv) Commencing Saturday, April 28, 2007, every third Saturday from 10:00 a.m., overnight to Tuesday at 4:00 p.m.; (xv) During July and August, 2007, the respondent shall be entitled to take the children for up to two non-consecutive periods consisting of no more than five overnights each; (xvi) Mr. Gavelin shall have reasonable telephone contact with the children at all reasonable times; (xvii) Should Mr. Gavelin not work for the months of April and May, 2007, he shall have additional parenting time with the children every week (other than the weekend he exercises regular access), from Thursday at 4:00 p.m., overnight to Saturday at 10:00 a.m.; (xviii) Mr. Gavelin shall be entitled to such other reasonable parenting time as agreed to by the parties; (xix) Changes may be made to the times and dates specified in this order, but all such changes must be made in writing and signed by both parties; and (xx) Mr. Gavelin shall be responsible for arranging the pickup and return of the children during his parenting time. Child support 10) Mr. Gavelin has worked for the same drilling company for approximately six years. His line 150 income, according to his last three tax returns and/or notices of assessment, was as follows: 2003 $88,426 2004 $103,102 2005 $86,870.57 According to his sworn financial statement, his gross income in 2006 was $112,064. This is verified by his year-to-date income statement from his employer. 11) Mr. Gavelin argues his Line 150 income should be reduced for child support purposes to take into account expenses incurred by him as result of his employment. Mr. Gavelin attests that in 2006 he received “living allowance” which he claims is reflected on his pay stubs. He argues this living allowance ($9,600), which includes expenses for his truck, fuel, vehicle maintenance and meals, should be deducted from his Line 150 income to arrive at his current income for child support purposes. Ms. Pateman opposes any such reduction. 12) The Family Maintenance Act, 1997, S.S. 1997, c. F-6.2 applies to the within application. That Act provides that maintenance is to be set in accordance with the Federal Child Support Guidelines [Divorce Act Regulations, SOR/97-175]. Pursuant to s. 16 of those Guidelines, as general rule, income for child support purposes is determined using the sources of income set out under the heading “total income” in the T-1 General form used by Canada Revenue Agency and adjusted in accordance with Schedule III of the Guidelines. Section of Schedule III provides for the deduction of certain employment expenses as provided in s. of the Income Tax Act, R.S.C. 1985, c. (5th Supp.), which includes travel and vehicle expenses under certain circumstances. 13) Mr. Gavelin attests that the $9,600 in issue is “living allowance”. It is impossible on the evidence provided to determine whether the $9,600 falls within Schedule III, Part of the Guidelines, being permitted deduction pursuant to s. of the Income Tax Act or whether it is in fact “living allowance” as contemplated by s. of the Income Tax Act. Living allowances, pursuant to s. of the Income Tax Act are neither income nor expenses and would have no effect on Mr. Gavelin’s Line 150 income (See: Kyle v. Kyle (1998), 1998 CanLII 13659 (SK QB), 164 Sask. R. 52 (Q.B.) and Jordan v. Jordan, 2005 SKQB 129 (CanLII), (2005), 260 Sask. R. 188 (Q.B.)). In the circumstances, am not prepared on an interim basis to deduct the $9,600 from Mr. Gavelin’s 2006 income. leave it open to the trial judge who will have the benefit of Mr. Gavelin’s 2006 tax return and notices of assessment and, hopefully, better evidence of the expenses and their purpose to review this issue and make any retroactive adjustment they deem necessary. 14) Mr. Gavelin recently incorporated company, Prime Rentals Ltd. (Hereinafter referred to as “the company”). He is the sole shareholder and director of that company which runs an equipment rental business. Its year end is April 30 and it recently filed its first financial statement which was for the period ending April 30, 2006. Mr. Gavelin attests he has not received any income from the company which is in its startup phase. Ms. Pateman points out the company’s April 30, 2006 financial statements show that it grossed $30,257 and had net income after tax of $24,720. There were also retained earnings in the company of that amount. She argues this amount should be added to Mr. Gavelin’s 2006 income for child support purposes. 15) Section 18 of the Guidelines provides that where an individual is shareholder, director or officer of corporation and the Court is of the opinion their Line 150 income does not “...fairly reflect all the money available...” for child support, the Court may attribute “...all or part of the pre-tax income of the corporation...” to the individual. 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 shareholders without endangering the financial viability of the company. When making such determination, 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 reflect the cash available for distribution. In order to make that determination, wide range of factors must be considered, including: (1) the nature of the business involved. (For example, is it capital intensive or service oriented business? Is it subject to seasonal fluctuations or economic cycles?) (2) the corporate share structure, including any obligations imposed by shareholder agreements; (3) 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, (4) 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 cash actually exists which may be available for child support. Simply because company makes profit does not mean cash is available for distribution. 16) The company in issue here is in its startup phase. There is insufficient evidence to establish what cash is available and whether it could be withdrawn without impeding the ongoing operation of the company. The corporate cash flow statement shows very little cash is actually available. In the circumstances, am not prepared, on an interim basis, to attribute additional income to Mr. Gavelin from the company. This issue should be left for determination by the trial judge. 17) find Mr. Gavelin’s current income for child support purposes to be $112,064, representing his total income from employment for 2006. There shall be an order that Mr. Gavelin pay support for his children, Kayden Marie Gavelin, born February 28, 2003 and Nolan Evan Gavelin, born December 28, 2004 of $1,531 per month commencing February 1, 2007 and continuing on the first day of each and every month thereafter for so long as the children remain children within the meaning of The Family Maintenance Act or until further order of this Court. Section expenses 18) Ms. Pateman claims contribution from Mr. Gavelin for her s. child care expenses which she attests are $370 per month ($4,400 per year, before tax). Other than the assertion that her present income is the same now as it was in 2005, there is no documentation to verify her income for 2006 or 2007. 19) The Court notes that the parties’ youngest child was born on December 28, 2004 and that according to her 2005 income tax return, significant portion of Ms. Pateman’s income for that year came from employment insurance. She is now employed full time as hotel supervisor. In the circumstances, this Court is not satisfied that Ms. Pateman’s 2005 income is an accurate reflection of her current income. 20) Both parties acknowledge they had verbal agreement following their separation that Mr. Gavelin would pay one-half of Ms. Pateman’s child care expenses. Mr. Gavelin has attached receipts to his material that confirm he has paid one-half of the child care costs up to and including December, 2006. Given the lack of financial disclosure by Ms. Pateman, am not prepared to vary the terms of that agreement. On an interim basis, there shall be an order that Mr. Gavelin continue to pay $185 per month directly to the child care provider which represents one-half of Ms. Pateman’s current child care costs (before tax considerations) for employment purposes. This order shall take effect January 1, 2007. Retroactive child support 21) Ms. Pateman claims child support from Mr. Gavelin “retroactive” to October, 2005 when the parties separated. “Retroactive” is used only in the sense that the child support payments requested are for period which pre-dates service of notice of this application upon Mr. Gavelin. Mr. Gavelin was served with the application on September 20, 2006. 22) Both parties acknowledge they had verbal agreement at the time of the separation that Mr. Gavelin would pay $1,200 per month in child support commencing October, 2005. Mr. Gavelin in fact paid this amount for the months of October, November and December, 2005. In argument, counsel for Mr. Gavelin pointed out that child support of $1,200 per month was consistent with Mr. Gavelin’s Line 150 income for 2004, based on Table support. His Line 150 income in 2004 was $103,102 and child support, based on the 1997 Tables at that time, for two children would have been $1,224. 23) In January, 2006 Mr. Gavelin unilaterally decreased his child support payments. He paid $860 in January, 2006 and $1,000 for each of the months of February, March and April, 2006. Mr. Gavelin did not make any child support payments (other than for child care) after April, 2006 until December, 2006 when he was ordered to pay $1,700 for the month of December, 2006 and further $1,700 in January, 2007. Since October, 2005 his income has increased and new Tables were adopted effective May 1, 2006. 24) The leading case on retroactive child support is the Supreme Court of Canada decision in D.B.S. v. S.R.G. et al, [2006] S.C.J. 37, 2006 SCC 37 (CanLII). Justice Bastarache, speaking for majority of the Supreme Court of Canada in that case confirmed the granting of “retroactive” child support order is discretionary. In exercising that discretion, court should consider the circumstances of the case, including: (i) Whether there is an existing court order or agreement; (ii) The status of the children; (iii) The reason for any delay in bringing the application; (iv) The conduct of the payor; (v) The financial circumstances of the child; and (vi) Any hardship. See also: Kelly v. Kelly, 2006 NSSC 323 (CanLII), [2006] N.S.J. No. 494 (N.S. S.C.) (QL) 25) Where retroactive award is made, as general rule, it will start when the payor was given “effective notice” that child support or change in child support was requested. Justice Bastarache, in D.B.S. v. S.R.G., supra, at para. 121, indicated that effective notice “...does not require the recipient parent to take any legal action, all that is required is that the topic be broached...”. It is noted that Justice Bastarache also discussed situations where the general rule would not apply, for example, where there is some blameworthy conduct on the part of the payor. 26) In this case, Mr. Gavelin lived up to the parties’ verbal agreement until January, 2006, at which time he unilaterally ceased paying the support agreed upon. By May, 2006 he had stopped paying child support altogether. He attests his reason for doing so is because he was not having access to his children. The obligation to pay child support is not contingent on payor’s ability to see their children. It is an independent obligation and Mr. Gavelin cannot justify his failure to provide support on that basis. It appears from the limited evidence before this Court that Ms. Pateman’s income was substantially less than that of Mr. Gavelin’s. The child support was necessary to meet the children’s basic ongoing needs. Mr. Gavelin knew he had an obligation to provide child support and there is no evidence a retroactive order would cause him undue hardship. There is evidence in both the petitioner and the respondent’s affidavit materials that request for change in child support preceded the commencement of this application. Mr. Gavelin attests at para. of his January 12, 2007 affidavit that the respondent refused to allow him parenting time if he “...did not agree to pay her the amount of child support she demanded”. I am satisfied in the circumstances that retroactive child support is warranted. 27) am also satisfied that the parties based their October, 2005 verbal agreement for child support on Mr. Gavelin’s 2004 income. It is common for support provisions to be based on the prior year’s earnings, as the best evidence of income is often year end income statements and/or tax returns. am also satisfied that changes to the child support were discussed between the parties prior to March, 2006. A retroactive adjustment of child support to January 1, 2006 is warranted. The order should be based on Mr. Gavelin’s income for the preceding year as that was the basis for the original October, 2005 agreement. As of January 1, 2006, Mr. Gavelin should pay child support based on his 2005 income, being $86,870.57. As of January 1, 2007, child support should be increased to reflect his 2006 income, being $112,064. This order will result in child support arrears of $8,107, calculated as follows: Period Table Support Amount Due Amount Paid $86,871 Jan. 1, 2006 to Apr. 30, 2007 1997 Tables $1,055 mos. $86,871 May 1, 2006 to Dec. 32, 2006 2006 Tables $1,202 mos. $112,064 Jan. 1, 2007 2006 Tables $1,531 mo. 28) Mr. Gavelin shall pay the child support arrears of $8,107 at the rate of $500 per month commencing February 15, 2007 and payable on the 15th day of each and every month thereafter until the arrears are paid in full. 29) As the results of the within application are mixed, costs of this application shall be costs in the cause. J. J. A. Ryan-Froslie

FIAT: The respondent applies for an interim order granting her sole custody of the parties' two children and child support retroactive to the date of separation being October 2005. The petitioner seeks joint custody with specified access. The petitioner acknowledges an obligation to pay child support but there is an issue with respect to his income and whether the interim order should be retroactive. The children are ages 3 and 2.HELD: 1) Section 3 of The Children's Law Act 1997 provides for a presumption of joint custody where parents of a child have cohabitated after the birth of the child. That is the situation here. There is nothing in the evidence to rebut that presumption on an interim basis. In making interim orders, the Court tries to disrupt the lives of the children as little as possible. The status quo in this case is represented by the verbal agreement between the parties entered into after their separation. That is the petitioner would have the children every third week during his week off from Saturday to Tuesday. This seems reasonable on an interim basis. This agreement did not address the fact that the petitioner shall be laid off for two months in the spring. It is reasonable that during this period his contact with the children should be increased. The petitioner has not seen the children for 10 months. He will have to be re-introduced to them. A phase in period is required. 2) The petitioner has worked for the same drilling company for about 6 years. His gross income in 2006 was $112,064. This is verified by his year to date income statement from his employer. The petitioner attests that $9,600 of his income is a 'living allowance' paid to cover expenses for his truck, fuel, vehicle maintenance and meals and should be deducted from his Line 150 income to arrive at his current income for child support purposes. This is a matter for the trial judge who will have the benefit of the 2006 tax return and notice of assessment and better evidence of the expenses and their purpose and make any retroactive adjustment deemed necessary. The petitioner's income for child support purposes is $112,064. 3) The claim for retroactive child support is a claim for child support payments which pre-date service of the notice of this application. The petitioner was served with the application in September 2006. The petitioner lived up to the parties' verbal agreement to pay child support of $1,200 per month starting October 2005. He unilaterally stopped paying child support in January 2006. He attests that his reason for doing so was because he was not having access to the children. The obligation to pay child support is not contingent on a payor's ability to see their children. The respondent's income is substantially less then that of the petitioner's. The child support was necessary to meet the children's basis ongoing needs. The petitioner knew he had an obligation to provide child support and there is no evidence that a retroactive order would cause him undue hardship. There is evidence that a request for change in child support preceded the commencement of this application. A retroactive adjustment of child support to January 2006 is warranted.

4_2007skqb51.txt

J. IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Stening-Riding v. Riding, 2006 NSSC 221 Date: 20060712 Docket: 1201-56085 (SFHD-12303) Registry: Halifax Between: Marie-Louise Annette Stening-Riding v. Michael David Riding Respondent Judge: The Honourable Justice Leslie J. Dellapinna Heard: June 12, 2006, in Halifax, Nova Scotia Written Decision: July 12, 2006 Counsel: Paul Thomas, for Marie-Louise Stening-Riding Deborah Conrad, for Michael Riding By the Court: [1] The Applicant, Marie-Louise Stening-Riding, has applied to vary the spousal support provisions of the parties’ Corollary Relief Judgment dated February 20th, 2003. [2] The parties were married on December 31, 1971. They had one child, daughter, who is now living independently of the parties. [3] The parties separated in or around May 2001 when the Respondent, Dr. Michael Riding, moved from the matrimonial home and they were divorced in February 2003. At the same time as their divorce was granted a Corollary Relief Judgment was also granted which incorporated the terms of an agreement signed by the parties dated January 30, 2003. That agreement came at the end of lengthy negotiations between the parties and their counsel stretching from April 2001 to the end of January, 2003. In addition to the negotiations that took place over those months, the agreement also followed number of court appearances, discovery examination of both parties, an interim application and settlement conference with judge of the Supreme Court. [4] The Agreement includes the terms of the parties’ settlement of the property division issue as well as the parties’ agreement with respect to spousal support. [5] Some of the provisions of that Agreement are as follows: AGREEMENT The husband and the Wife each agree to be bound by the provisions of this Agreement, acknowledging that the provisions meet the requirements, objectives and spirit of all applicable legislation and legal principles. 4. FINANCIAL PROVISION FOR WIFE (a) Commencing on the first day of February, 2003, and on the first day of each and every month thereafter, the Husband shall pay to the Wife, by way of direct deposit, for the support of the Wife, the sum of $5,500.00 until November 1, 2003 when he shall pay $4,535.00, subject to section below. (b) The Husband shall maintain in force for the benefit of the Wife an unencumbered policy or plan of life insurance in an amount of not less than $175,000.00. The Husband will irrevocably designate the Wife as the sole beneficiary under this policy. The Husband shall give to the Wife true copy of the designation within thirty days of the execution of this Agreement and shall provide, at the Wife’s request, no more than once annually, proof that the policy remains in effect. (—) If the Husband dies without the aforementioned insurance in effect, the Husband’s obligation to provide $175,000.00 to the Wife shall be first charge on his estate. 5. When the Husband’s gross professional and professional corporation income falls below $200,000.00 per annum, assessed on any three consecutive months of fulltime [sic] employment, the spousal support payment shall be prorated to 20% of his professional and professional corporation income. Spousal support payments shall cease when the Husband’s gross professional and professional corporation income falls below $80,000.00 per annum. ... 10 RELEASES ... (d) General: the Husband and the Wife each accept the provisions of this Agreement in satisfaction of all claims for support, interim support, possession of or title to Property, or any other claim arising out of the marriage of the Husband and the Wife, EXCEPT for claims: (i) arising under this Agreement; and (ii) for Divorce Judgment. AGREEMENT (a) The within Agreement shall constitute Minutes of Settlement of the corollary matters in the within divorce proceeding, and insofar as the jurisdiction of the Court allows, shall be incorporated in and form part of the Corollary Relief Judgment. (b) When Divorce Judgment is obtained, all the terms of this Agreement shall survive the Divorce Judgment and continue in force. (b) The Husband and the Wife each warrant that there are no representations, collateral agreements or conditions affecting this Agreement other than as expressed in this Agreement. (—) This Agreement may be amended only by further instrument in writing signed by the Husband and the Wife and witnessed. 13. JOINT PREPARATION OF AGREEMENT Each party personally and by his or her lawyer has participated in the preparation of this Agreement. This Agreement must be construed as if the parties were joint authors, and it will not be construed against one party as if that party or that party’s lawyer were the sole or major author of the Agreement. 16. INDEPENDENT LEGAL ADVICE The Husband and the Wife each acknowledge that he and she: (a) has had or has had the opportunity to obtain independent legal advice before and since concluding the terms of this negotiated Agreement; (b) has read the Agreement in its entirety and has full understanding and knowledge of its contents and understands his or her respective rights and obligations under this Agreement; (—) acknowledges that the terms of the Agreement are fair and reasonable; and (d) is signing this Agreement voluntarily, without any duress or undue influence, fraud or coercion, while in good mental and physical health. [6] The Agreement listed which assets each party was to retain and what debts each was to assume. [7] There were numerous assets including farm property in Lunenburg County which had been professionally appraised, registered retirement savings as well as other investments, household contents, bank accounts, etc. [8] The Applicant assumed responsibility for her motor vehicle loan having balance outstanding as of the date of the parties’ separation of approximately $7,545.00 and the Respondent assumed responsibility for the bulk of the matrimonial debt which, according to my calculations, amounted to approximately $340,000.00. [9] In addition to the matrimonial debts both parties had significant legal expenses to pay. [10] In March, 2005 the Applicant applied pursuant to section 17 of the Divorce Act to vary the spousal support provisions of the Corollary Relief Judgment. By that time the Agreement was just over two years old. The parties once again exchanged financial disclosure and provided the Court with their affidavits and financial statements and both counsel were given the opportunity to cross-examine the opposing party and present submissions. [11] At the risk of over simplifying the Applicant’s position, on her behalf it was argued that the Agreement reached in January, 2003 did not conform with the objectives of the Divorce Act and that in any event her circumstances and the circumstances of the Respondent have unfolded in way different from that which they contemplated when the Agreement was signed and therefore variation of the spousal support provisions of their Agreement is not only justified but required. She proposed that the monthly support be increased to a figure that more closely resembles that which would be assessed pursuant to the Spousal Support Advisory Guidelines and that she receive a substantial lump sum to compensate her for the “underpayment” of spousal support since the 1st of February 2003. The Court was also asked to remove the clause that permits the discontinuance of spousal support when the Respondent’s professional income drops below $80,000.00, so that her spousal support would be “unfettered”, to use the term of her counsel. It would then be left open to the Respondent to apply in the future to vary spousal support should circumstances change again. [12] It is the Respondent’s position that the Agreement was sound when it was signed, that there have been no material change in the circumstances of either of the parties since it was signed or since it was made an order of the Court and that the Applicant should be bound by the terms of the Agreement. [13] The relevant provisions of the Divorce Act are as follows: (1) court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively, (a) support order or any provision thereof on application by either or both former spouses; (3) The court may include in variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought. (4.1) Before the court makes variation order in respect of spousal support order, the court shall satisfy itself that change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration. (7) variation order varying spousal support order should (a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown; (b) apportion between the former 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 former spouses arising from the breakdown of the marriage; and (d) in so far as practicable, promote the economic self-sufficiency of each former spouse within reasonable period of time. [14] The first issue is whether there has been “change in the condition, means, needs or other circumstances” of either of the parties since their divorce. [15] When the Agreement was signed the Applicant was 56 years of age and the Respondent 62. (She is now 59 and he is now 66). The Applicant was in the process of completing her doctorate in English. She had previously obtained her Bachelor of Arts degree in 1992 and her Masters in 1994. She eventually obtained her Ph.D. in October 2004. She essentially had no income other than the support that was given to her by the Respondent. The Respondent is physician with specialty in neuro- radiology. According to the Agreement the Respondent stated his 2001 income was $247,242.50 (based on his 2001 income tax return) and in addition he had gross earnings from radiology practice of $95,000.00. Based on that he was projecting an income in 2002 of approximately $342,000.00. He was also estimating gross earnings in 2003 of $285,000.00. [16] The Court received expert evidence from Mr. Stephen Shupe, Chartered Accountant. According to his calculations the Respondent’s actual income in 2002 was $337,773.00 (approximately $4,400.00 less than what the Respondent had estimated) and in 2003 it was approximately $314,300.00. In 2004, including income paid by Dr. Riding to his current wife, his total gross income was $383,178.00 and in 2005 $448,275.00. Therefore, since 2002 his gross income increased by approximately $110,500.00. Mr. Shupe assumed the Respondent paid his wife salary simply to income split. There is no evidence of what she does to earn that income and similarly no evidence that she doesn’t earn it. [17] According to the Respondent during the course of the divorce proceeding and after he worked many hours and many weekends to earn extra money because of the significant legal costs that he incurred in relation to the divorce. He also had substantial debt to pay down as result of the divorce agreement. He was in his sixties and both parties acknowledged that he was hoping to retire in the near future. [18] The Applicant’s income also changed since the Agreement was signed. She went from an income of almost to an income of approximately $76,284.00 year inclusive of the spousal support payments paid by the Respondent or, $21,864.00 exclusive of those support payments. The additional income comes from investment income and rental income that she receives from tenant who rents basement apartment in her home as well as rent from boarder. The household expenses that the Applicant claims in relation to her rental income exceed the actual rental income and therefore there are no adverse tax consequences to receiving those monies. Her investment income, which is modest, receives the favourable tax treatment which is accorded dividend income. [19] The Applicant also argued that following the settlement she was left “deeply in debt”. [20] find that there have been changes in circumstances since the granting of the divorce, most notably the changes in both parties’ income. do not agree with the Applicant’s description of her debt position. With the exception of legal and other fees associated with the divorce and this variation proceeding, the bulk of her debt relates to loans which she incurred for investment purposes and mortgage which she took out to finance renovations to the former matrimonial home in order to create an apartment for rental purposes. The rental income more than covers that mortgage payment. [21] The Court has been referred to the Supreme Court of Canada’s decision in Miglin v. Miglin, 2003 SCC 24 (CanLII), [2003] S.C.R. 303. The opening paragraph of that case says that the decision concerns the proper approach courts are to take in determining an application for spousal support pursuant to section 15.2 of the Divorce Act where the parties have executed final agreement that addresses all matters respecting their separation, including release of any future claim for spousal support. However, paragraph states: In broader terms, the appeal raises the question of the proper weight to be given to any type of spousal support agreement that one of the parties subsequently wishes to have modified through an initial application in court for such support. In that sense, the matter is not restricted to spousal support agreements that contain time-limited support arrangement or to agreements which contain full and final release from support obligations by one or both parties. [22] While Miglin (supra) was decided primarily with section 15.2 in mind, it also applies to variation applications under section 17. At paragraph 91 the Court stated: As we noted above, it would be inconsistent if different test applied to change an agreement in the form of an initial order under s. 15.2 and to variation of an agreement incorporated into an order under s. 17. ... Consideration of the overall objectives of the Act is consistent with the non-exhaustive direction in s. 17(7) that variation order "should" consider the four objectives listed there. More generally, contextual approach to interpretation, reading the entire Act, would indicate that the court would apply those objectives in light of the entire statute. Where the order at issue incorporated the mutually acceptable agreement of the parties, that order reflected the parties' understanding of what constituted an equitable sharing of the economic consequences of the marriage. In our view, whether acting under s. 15.2 or under s. 17, the Court should take that into consideration. [23] When faced with pre-existing agreement the Supreme Court in Miglin (supra) says that two-stage investigation into all of the circumstances surrounding the agreement is required first at the time of its formation, and second at the time of the application. In the first stage the court should look at the circumstances in which the agreement was negotiated and executed to determine whether there is any reason to discount it. As stated in paragraph 81, “...the Court should be alive to the conditions of the parties, including whether there were any circumstances of oppression, pressure, or other vulnerabilities, taking into account all of the circumstances, including those set out in s. 15.2 (4)(a) and (b) and the conditions under which the negotiations were held, such as their duration and whether there was professional assistance.” [24] It is not necessary for the court to determine the agreement was unconscionable. Rather, the court is to look at all of the evidence and determine whether one party took advantage of the vulnerability of the other party in the negotiations. Paragraphs 82 and 83 of Miglin (supra) state: “[T]here must be evidence to warrant the court’s finding that the agreement should not stand on the basis of fundamental flaw in the negotiation process. Recognition of the emotional stress of separation or divorce should not be taken as giving rise to presumption that parties in such circumstances are incapable of assenting to binding agreement. ... We stress that the mere presence of vulnerabilities will not, in and of itself, justify the court’s intervention. The degree of professional assistance received by the parties will often overcome any systemic imbalances between the parties. Where vulnerabilities are not present, or are effectively compensated by the presence of counsel or other professionals or both, or have not been taken advantage of, the court should consider the agreement as genuine mutual desire to finalize the terms of the parties' separation and as indicative of their substantive intentions. Accordingly, the court should be loathe to interfere. [25] The Applicant testified that she found the divorce proceedings “very stressful” and at the same time she was under great deal of pressure to finish her thesis. She stated she was attending counselling with psychologist in the fall of 2001 and summer of 2002 (before the Minutes of Settlement were signed) and she consulted with her family physician on regular basis. She also said that she was taking antidepressants until the Agreement was signed. She said she felt totally exhausted and under pressure to sign the Agreement. Because of her emotional state and the huge legal costs, she felt the need to settle made her vulnerable at the time of the execution of the Agreement. [26] The Respondent testified that he too felt the stress of the negotiations. [27] I find that there was no pressure exerted by the Respondent upon the Applicant and no oppression during the course of the negotiations or the signing of the Agreement and I find further that the Respondent did not take advantage of any vulnerability of the Applicant as contemplated by the Supreme Court in Miglin (supra). There is certainly no evidence of coersion or anything of that nature. Both parties felt pressure and stress including financial pressure to sign the Agreement as is not uncommon when divorcing couples finally reach the point of either going to trial or agreeing to settlement terms. The Applicant however had the assistance of very experienced counsel as well as financial advice from Mr. Shupe. The main parcel of real estate had been professionally appraised (by an appraiser retained by the Applicant) as had the household contents. To the extent the Applicant was vulnerable, such vulnerabilities were more than offset by the professional assistance that she received. [28] Both parties are intelligent and educated people. am satisfied that both were competent to enter into contract in the nature of the Separation Agreement which they signed. am satisfied too that both read and understood the contents of the Agreement and its effect. It should be noted (notwithstanding the wording of paragraph 13) that the Agreement was drafted by the Applicant’s counsel. [29] Having reached that conclusion the next step in the Court’s analysis is to determine whether the Agreement signed by the parties adequately takes into account the factors and objectives listed in the Act. Does the Agreement reflect an equitable sharing of the economic consequences of the parties’ marriage and its breakdown? In paragraph 85 of Miglin (supra) the Court stated: When examining the substance of the agreement, the court should ask itself whether the agreement is in substantial compliance with the Divorce Act. As just noted, this "substantial compliance" should be determined by considering whether the agreement represents significant departure from the general objectives of the Act, which necessarily include, as well as the spousal support considerations in s. 15.2, finality, certainty, and the invitation in the Act for parties to determine their own affairs. The greater the vulnerabilities present at the time of formation, the more searching the court's review at this stage. [30] On behalf of the Applicant it was argued that the Agreement does not comply with the objectives of the Act. If the Agreement was to stand without variation it is conceivable that at some future date that the Respondent would earn an income of $80,000.00 and not be required to pay any spousal support to the Applicant even if she is able to demonstrate need. The Agreement makes sense, it was submitted, only if the parties contemplated that the Applicant would be able to obtain employment of her own such that she would become self-sufficient. [31] The Respondent argued that all of the objectives in section 15.2 (6) were taken into account. Both parties wanted final agreement so as to avoid the necessity of future court proceedings. Retirement was contemplated by both parties and by the Respondent in particular and the Agreement was designed with retirement in mind. [32] The onus is on the Applicant to satisfy the Court that the Agreement was not in substantial compliance with the Divorce Act She has not met that burden. [33] The Agreement made provision for an approximately equal division of matrimonial assets and debts. The assets received by the Respondent exceeded in value the assets received by the Applicant but that was offset by the Respondent’s assumption of debts far greater in value than the debts assumed by the Applicant. The Agreement provided for spousal support of $5,500.00 month for the months of February 2003 to an including November 2003 and thereafter in the sum of $4,535.00 per month. The Applicant submits that the quantum of support was insufficient and compares it to the figure that could have been ordered had the Spousal Support Advisory Guidelines been applied. [34] The Spousal Support Advisory Guidelines are not law. At best they are tool that the Court may sometimes use in assessing the appropriateness of possible levels of support. The authors of the guidelines describe them only as tool and as “starting point for negotiation and adjudication”. Further, the Spousal Support Advisory Guidelines allow for exceptions to the general formulas provided in the guidelines and one such exception mentioned is the assumption of debt by one of the parties. Further, the guidelines make it clear that the exceptions listed are not intended to be an exhaustive list and each case must be decided on its own facts. [35] Although the parties were married for over 29 years prior to their separation, in determining the appropriate spousal support terms, one has to take into account a number of factors including the Respondent’s age, his health (which has not been good) and the reasonable expectation of retirement. The spousal support figure also had to recognize that the Applicant was left essentially debt free while the Respondent was assuming debts in excess of $300,000.00. Though his income was substantial he was also working very hard to earn it at an age when most people are trying to slow down. am unable to conclude that the Agreement was not in substantial compliance with the objectives of the Divorce Act It appears that in reaching their agreement on spousal support the parties did consider their respective circumstances and took heed to all of the objectives in section 15.2(6). It is not for this Court to substitute what it might have ordered had the parties proceeded to trial. The parties should be free to arrive at their own agreement (and should be encouraged to do so) and in assessing whether there has been substantial compliance, the Court should be willing to give some deference to the terms that the parties chose. [36] While it is certainly not determinative, paragraph of the Agreement says that the parties acknowledge that the provisions of the Agreement “meet the requirements, objectives and spirit of all applicable legislation and legal principles.” [37] The second stage of the court’s inquiry requires an assessment of the extent to which the enforcement of the Agreement still reflects the original intention of the parties and the extent to which it is still in substantial compliance with the objectives of the Act. [38] In paragraph 88 of Miglin the Court stated: The parties' intentions, as reflected by the agreement, are the backdrop against which the court must consider whether the situation of the parties at the time of the application makes it no longer appropriate to accord the agreement conclusive weight. We note that it is unlikely that the court will be persuaded to disregard the agreement in its entirety but for significant change in the parties' circumstances from what could reasonably be anticipated at the time of negotiation. Although the change need not be "radically unforeseen", and the applicant need not demonstrate causal connection to the marriage, the applicant must nevertheless clearly show that, in light of the new circumstances, the terms of the agreement no longer reflect the parties' intentions at the time of execution and the objectives of the Act. Accordingly, it will be necessary to show that these new circumstances were not reasonably anticipated by the parties, and have led to situation that cannot be condoned. [Emphasis added] [39] The onus is again on the Applicant to demonstrate that the Agreement is no longer reflection of the parties’ original intentions. [40] To satisfy the second stage of the test it is not enough to merely demonstrate that changes have occurred. Change is inevitable. As noted in paragraph 89 of Miglin: We stress that certain degree of change is foreseeable most of the time. The prospective nature of these agreements cannot be lost on the parties and they must be presumed to be aware that the future is, to greater or lesser extent, uncertain. It will be unconvincing, for example, to tell judge that an agreement never contemplated that the job market might change, or that parenting responsibilities under an agreement might be somewhat more onerous than imagined, or that transition into the workforce might be challenging. Negotiating parties should know that each person's health cannot be guaranteed as constant. An agreement must also contemplate, for example, that the relative values of assets in property division will not necessarily remain the same. Housing prices may rise or fall. business may take downturn or become more profitable. Moreover, some changes may be caused or provoked by the parties themselves. party may remarry or decide not to work. Where the parties have demonstrated their intention to release one another from all claims to spousal support, changes of this nature are unlikely to be considered sufficient to justify dispensing with that declared intention. [41] The Applicant said that the divorce settlement has left her deeply in debt. That is not the case. Since the signing of the parties’ Agreement the Applicant chose to place modest mortgage on her home to finance renovations to create rental unit. That rental unit generates $1,000.00 month in income. The mortgage payments are $320.00 per month. In addition she receives further $500.00 month from boarder. Her total rental income is surpassed by the portion of her household expenses which she claims as rental expenses (including the interest on the mortgage). The net result is that her rental income is effectively tax free. The renovation (and the mortgage it required) would appear to have been wise decision on her part. In addition she borrowed approximately $150,000.00 on line of credit, using her home as security, to purchase mutual funds as an investment. How prudent that decision was remains to be seen. Nevertheless it was debt that she voluntarily assumed. Her only other debts of any consequence are legal fees and accounting fees relating to the divorce proceedings and these variations proceedings. She either was aware or should have been aware of her legal costs before signing the Agreement and the fees incurred in relation to these variation proceedings were voluntarily assumed. [42] She also argued that she has few job prospects and that the employment market is difficult, particularly for woman of her age. The Applicant should have been aware that whereas she was in her late fifties when she received her doctorate the prospects of her obtaining a full-time teaching position at a university in the narrow field of her expertise were far from great. It was completely foreseeable that she would have difficulty and perhaps no chance at all of obtaining such a position. Of the many universities in Nova Scotia she has applied only to those in the Halifax Regional Municipality. The only non-teaching position that she appears to have applied for was the position of Administrator and Communications Officer with the Atlantic Metropolis Centre in Halifax. [43] The Applicant has an impressive resume. She speaks five languages (some more fluently than others). In addition to her B.A., M.A. and Ph.D. she has degree in Journalism and Mass Communications. She has teaching experience, and experience in journalism and public relations. Her job search since the divorce was granted has been very narrow limited both with respect to occupations and geography. There appears to have been no effort to seek less challenging employment or even part-time work such as tutoring. Given the limitations that the Applicant has placed on her job search, it is not surprising and in fact foreseeable that her efforts to date to find employment would be unsuccessful. In her affidavit the Applicant also referred to her health problems. Specifically she suffers from glaucoma and cataracts. Neither of these conditions were included in the reasons given for her inability to obtain teaching position. also understand that she has received surgery for her cataracts. [44] The Applicant claims she lives lifestyle of survival. Again disagree. Her income, inclusive of the support that she is presently receiving, exceeds $76,000.00 per year. Her rental income and investment income which totals almost $22,000.00 year is taxed very favourably or not at all because of the legitimate expenses that she can claim and the tax treatment of dividends. [45] Her Statement of Expenses discloses high housing costs. She lives in large older home in central Halifax which, if sold, according to her could attract selling price in the $500,000.00 range. It is more house than one person needs but she is, as said, sharing the house with tenants. It is for her to decide whether to continue to maintain the house or to sell it, buy or rent less expensive accommodation and invest any excess sale proceeds. She reports expense figures like food of $650.00 month, toiletteries and household supplies of $200.00 month, holidays of $500.00 month as well as: Miscellaneous $300.00 Garden 100.00 Furniture 200.00 Computer and Office 100.00 [46] Her Statement of Expenses is very similar to one which she filed with the Court in January 2003 (the month the Agreement was signed). The major differences in her reported expenses are the voluntary debts that she has assumed. Her Statement of Property discloses that her house has apparently increased in value as have her registered retirement savings and other investments. [47] The incomes of both parties have increased since the Agreement was signed but that too was a foreseeable event. The Respondent worked long hours throughout his career and having assumed very substantial debts as result of the parties’ settlement worked even harder in order to pay those debts down and to begin to prepare for retirement. Retirement was and still is goal. He is 66 years of age and has had two hip replacements. [48] The affidavits and the briefs filed with the Court prior to the parties signing their Agreement, make it abundantly clear that the Applicant was aware of the Respondent’s income potential and the challenges she would be facing given her circumstances including her age and her years out of the workforce. It is also apparent that she was alive to the issue and was advised of the law with respect to terminal support orders prior to the Agreement being signed. [49] The Applicant also referred to what appears to be dramatic increase in the value of the Lunenburg property now owned solely by the Respondent. Prior to the signing of the parties’ Agreement the Applicant had the property appraised. Its gross value was then determined to be $996,000.00. The Respondent gave evidence that the farm has recently been appraised for 2.9 million dollars and is currently listed for sale at 3.4 million dollars. There have been no offers on the property and in fact no one has even come to view the property. Relying on the appraised value he placed mortgage on the property of over million dollars and used the money to consolidate other debt and to purchase home in the United States where he and his wife plan to retire. It is unclear to me from the evidence whether the Respondent made further renovations to the property subsequent to the signing of the Agreement that may account for its increase in value or whether it is simply the desirability of the location. [50] Fluctuation in property values is foreseeable event. It is possible that the Applicant’s properties both in Halifax and in Finland have also increased in value but more recent appraisals have not been obtained. I do not consider the increased appraised value of the Respondent’s real estate to be a reason to vary the spousal support provisions of the parties’ Agreement. [51] In short, while there have been changes in circumstances since the Agreement was signed approximately three and half years ago those changes were or should have been reasonably anticipated by the parties and are not such that the Court can now conclude that the Agreement no longer reflects the parties’ intentions. In fact, the circumstances that have unfolded are on track with what the parties had intended and expected with the possible exception that the Respondent has not retired as soon as he had hoped. That however only benefits the Applicant as she continues to receive support of $4,535.00 per month, or $54,420.00 per year. [52] The Applicant’s future is not as bleak as she might believe. In addition to whatever income she may be able to earn as result of her own efforts, she presently has registered retirement savings and other investments having gross value in excess of $380,000.00 not including the investments which she purchased on credit. (If she was to liquidate those investments and pay off the balance of her line of credit she would have further $35,000.00 according to her own figures.) Given her age, she should not be looking just at the interest or dividends those investments can generate but she should also be giving some thought to drawing down on the principal gradually over time. Also, very shortly she will be able to collect Canada Pension. [53] By the terms of the parties’ Agreement, the Respondent will continue to provide her with support until such time as his professional income drops below $80,000.00. When that time comes he too will have to rely on his investment income, Canada Pension and perhaps Old Age Pension. [54] In conclusion, the current circumstances of the parties are not a “significant departure from the range of reasonable outcomes anticipated by the parties” when they signed their Agreement. The application is dismissed. [55] Subsequent to the hearing of the variation application, received written submissions from counsel on the issue of costs. [56] These proceedings began in March, 2005 when the Applicant filed her application to vary the spousal support provisions of the Corollary Relief Judgment. The parties and their counsel appeared for pre-hearing conference on May 9, 2005 at which time further dates were scheduled for settlement conference (which took place in September, 2005) and full hearing to take place on December 8, 2005. [57] While do not know precisely what occurred during the settlement conference it appears that the parties thought that they were making some progress and the trial was postponed until June 2006 with the intent that the parties would get together again for further settlement oriented conference in November 2005. [58] When November arrived the parties decided not to proceed with settlement conference. In fact the Applicant filed another application on November 9, 2005 in which she requested “Relief by way of constructive trust or in the alternative, quantum meruit based on unjust enrichment”. [59] The settlement conference judge directed that the parties arrange telephone conference with me (as was scheduled to hear the applications) and that telephone conference took place on November 17, 2005. As result of that telephone conference further organizational pre-trial conference was scheduled for January 31, 2006. [60] At the January 31, 2006 pre-trial conference the Applicant’s counsel verbally requested that order an appraisal of the Respondent’s farm property. directed that if the Applicant wanted such an Order, formal motion would have to be filed with the Court. also expressed concern with the form of the Applicant’s affidavit filed in support of her applications. Chambers date of April 6, 2006 was scheduled and indicated to counsel that would be prepared at that time to entertain any applications the parties wanted to make in advance of the June hearing. [61] The Respondent applied to have the affidavit of the Applicant (dated January 20, 2006) struck. The Applicant chose not to formally apply for an Order to have the Respondent’s farm property appraised and her counsel advised the Court verbally that the Applicant would be withdrawing her application of November 9, 2005. granted the Respondent’s application and struck the Applicant’s January 20, 2006 affidavit in its entirety. The Applicant was given another opportunity to file an affidavit in proper form in support of her application to vary. [62] The Applicant did file new affidavit and the hearing of her application to vary proceeded on June 12. [63] Civil Procedure Rule 70.03(4) provides: (4) Where any matter of practice or procedure is not governed by statute or by this Rule, the other rules and forms relating to civil proceedings shall apply with any necessary modification. Other than Rule 70.24 which deals with suit money, Rule 70 does not have its own rule with respect to costs. [64] Civil Procedure Rules 40.02 and 40.03 provide as follows: Discontinuance of proceeding, etc., with leave 40.02. At any time after proceeding is entered for trial or its hearing is commenced in chambers, (a) plaintiff may discontinue the proceeding or withdraw any cause of action therein, against any defendant; (b) defendant may withdraw his defence or any part thereof against any plaintiff; with the leave of the court, and the order may contain such terms as to costs, the bringing of any subsequent proceeding, or otherwise, as are just. (1) Subject to rule 40.02, party, discontinuing proceeding or withdrawing any cause of action therein, or withdrawing his defence or any part thereof, shall pay the costs of any opposing party to the date of giving notice of discontinuance or withdrawal to the party, and if before payment of the costs he subsequently brings proceeding for the same, or substantially the same claim, the court may order the proceeding to be stayed until the costs are paid. (2) When an opposing party produces notice of discontinuance or withdrawal that was served on him, he may tax his costs and enter judgment for the costs. [65] Rule 63.02(1) reads: Costs in discretion of court (1) Notwithstanding the provisions of rules 63.03 to 63.15, the costs of any party, the amount thereof, the party by whom, or the fund or estate or portion of an estate out of which they are to be paid, are in the discretion of the court, and the court may, (a) award gross sum in lieu of, or in addition to any taxed costs; (b) allow percentage of the taxed costs, or allow taxed costs from or up to specific stage of proceeding; (—) direct whether or not any costs are to be set off. [66] And Rule 63.04(1) provides: Party and party costs fixed by court (1) Subject to rules 63.06 and 63.10, unless the court otherwise orders, the costs between parties shall be fixed by the court in accordance with the Tariffs and, in such cases, the “amount involved” shall be determined, for the purpose of the Tariffs, by the court. [67] The Respondent seeks substantial costs. He argues that the Agreement of January 30, 2003 was intended and designed to avoid Court applications such as those that were filed by the Applicant. As result of her applications he was put to considerable expense because of his need to retain counsel, his and his lawyer’s attendance at number of Court appearances, the extensive financial disclosure that he had to provide and the work that went into his application to strike the Applicant’s affidavit of January 20, 2006 and to respond to her application to vary the spousal support. [68] The Respondent also argues that the applications were motivated by revenge and greed and he therefore asks the Court to consider granting to him solicitor-client costs. [69] The Applicant’s position is that the facts of this case do not warrant solicitor-client costs and if costs are to be awarded they should be in the vicinity of $1,750.00 or less. [70] Costs are in the discretion of the Court. Generally speaking successful party is entitled to costs and should only be denied costs for very good reason. (See Bennett v. Bennett (1981), 45 N.S.R. (2d) 683 (T.D.) and Kaye v. Campbell (1984), 65 N.S.R. (2d) 173 (A.D.)). have not been convinced that there is principled reason to deny the Respondent costs. [71] As result of the application of Rule 40.03(1) he is entitled to costs in relation to the Applicant’s November 2005 application up to the date that it was discontinued. find too that he is entitled to costs for having successfully defended the March, 2005 application to vary. [72] In addition to the hearing which took place in June, the two applications necessitated two pre-trial conferences, phone conference and an appearance on April 6, 2006 which resulted in the Court striking the Applicant’s affidavit of January 20, 2006 (although the Court declined the Respondent’s application at that time to strike the Applicant’s variation application). The Respondent is entitled to party and party costs. am not prepared to order costs on solicitor-client basis. Solicitor-client costs are awarded only in “rare and exceptional circumstances” to highlight the Court’s disapproval of the conduct of one of the parties. (See Wournell (P.A.) Contracting Ltd. and Wournell v. Allen (1980), 1980 CanLII 2720 (NS CA), 37 N.S.R. (2d) 125 (A.D.)). The Applicant’s conduct throughout these proceedings was not so reprehensible or distasteful to warrant such rebuke. [73] The amount of costs to be awarded is also in the discretion of the Court. [74] have considered what this Court has awarded by way of costs in previous cases and have reviewed the case law that has been presented by counsel. have considered too the Tariffs including Tariffs A, C, and F. have considered the number of Court appearances and phone conferences that the applications necessitated, the Respondent’s success in having the Applicant’s January 20, 2006 affidavit struck and his success in defending the application to vary. have taken into account also the considerable financial disclosure that the two applications required of the Respondent and the length of each Court appearance and the average complexity of the issues that were before the Court. therefore order the Applicant pay to the Respondent costs, inclusive of disbursements, in the sum of $6,500.00.

Two years after the divorce, the wife applied to vary the spousal support provisions of the parties' Corollary Relief Judgment, which incorporated the terms of Minutes of Settlement. Pursuant to the Corollary Relief judgment, the husband was currently paying the wife $4,350 per month as spousal support. The wife now wished to increase the monthly support to a figure which would more closely resemble that assessed pursuant to the Spousal Support Advisory Guidelines, along with a substantial lump sum to compensate her for the underpayment of spousal support for the past two years. She also sought removal of a clause which provided for the discontinuation of support if the husband's professional income dropped below $80,000. The parties had been married for approximately thirty years and had one child, who was now independent. Application dismissed; the parties' current circumstances did not constitute a significant departure from the range of reasonable outcomes anticipated by the parties when the Agreement was signed. Both parties' income had increased since the divorce and the wife was not deeply in debt, as she alleged; there was no pressure exerted and no oppression during the course of negotiations; the Spousal Support Advisory Guidelines are not law and allow for exceptions to the general formulas provided, one such exception being the assumption of debt by one of the parties (the husband in this case); the spousal support figure recognized the husband's reasonable expectation of retirement and the fact that he was experiencing health problems; it was completely foreseeable at the time that the Agreement was signed that, given the wife's age, she might experience difficulty in finding employment in her narrow field; the subsequent increased value of one of the husband's properties was not a reason to vary the spousal support provisions of the Agreement.

b_2006nssc221.txt

J. 1999 SKQB 270 Q.B. A.D. 1995 No. 2004 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: JANINE KOROLUK and ELOISE KOSTIUK and FRED KOSTIUK DEFENDANTS Patrick Loran for the plaintiff Tim Stodalka for the defendants FIAT D.H. WRIGHT J. December 29, 1999 INTRODUCTION [1] The defendants sought to amend their statement of defence at the opening of the trial to plead, in effect, Accord and Satisfaction. The application was opposed. The trial judge directed the defendants to proceed by notice of motion in chambers, and the trial was adjourned. [2] This action was commenced in 1995 and proceeded to discovery of documents, examinations for discovery and pre-trial conference. It was set down for trial at Saskatoon, and the trial commenced on October 25, 1999. At the opening the defendants applied to amend their statement of defence by pleading Accord and Satisfaction. The plea was based on the allegation that the parties had settled their differences in October, 1988, as a result of negotiations between the solicitors then representing the parties. [3] The defendants’ application came before me in chambers on November 25, 1999. THE PLEADINGS AND PROPOSED AMENDMENTS [4] The plaintiff sued the defendants for breaches of trust. The defendants categorically denied the allegations and stated that any property which they held for her was delivered to her many years ago. This plea is epitomized by the wording of para. of the statement of defence and quote: 4. In the alternative, if the Defendants did hold property in trust for the Plaintiff as alleged, which is not admitted but denied, the Defendants state that any and all property so held was transferred into the sole possession of the Plaintiff on or before October of 1988. The defendants also counterclaim for other monies which are not relevant to this application. [5] The applicants (defendants) wish to add the following paragraphs to their defence: 4A. Further, or in the alternative, the Defendants say that pursuant to an agreement between the parties as particularized in part by correspondence from the Plaintiff’s former solicitor, Mr. Laurie Burrows, then of the Mackenzie Nussbaum Burrows Law Firm of Saskatoon, dated April 12, 1989 to the Defendant’s lawyer, Pamela Cuelenaere, of the Cuelenaere, Beaubier, Kendall Fisher Gaucher Law Firm, the parties settled all matters at issue. The Defendants in pursuance of the April 12, 1989 Agreement, on or about April 15, 1989 duly delivered certain chattels to the Plaintiff and the Defendant, Eloise Kostiuk, did not proceed with an action against the Plaintiff for her breach of the October 30, 1989 Agreement whereby the Plaintiff wrongfully failed to transfer $9,677.00 to the Defendant Eloise Kostiuk as particularized in paragraph of the Counterclaim. 4B. Further or in the alternative, the Defendants plead s. 64 of the Queen’s Bench Act, S.S. 1998, c. Q-1 (formerly s. 45.7) and say that the said April 12, 1989 letter constitutes the Plaintiff’s express acceptance of the Defendants’ performance of their trustee obligations. Further, or in the alternative, the Defendants’ actions as outlined in paragraph 4A were rendered pursuant to an agreement for satisfaction of the obligation. [6] Elaine Kostiuk swore an affidavit in support of the application. It contains several statements consider significant. recognize it is not appropriate for me to enter into consideration of the evidence on this application. may, however, look at the existing pleading and consider it in the light of the proposed amendments. Ms. Kostiuk says, in answer to the respondent’s complaint that the amendments are “novel” and not raised before, that para. (supra) reflects the plea of settlement. It does not. It says the applicants transferred any property they held in trust for the respondent to her in October, 1988 and nothing more. That is not plea of Accord and Satisfaction or settlement. [7] The proposed amendments raise specifically the plea of Accord and Satisfaction. It is an affirmative defence. [8] Ms. Kostiuk also makes the following statement in para. of her affidavit: 9. had always considered that all of the matters at issue between my husband and and my daughter, Janine Koroluk, had been resolved in 1988 and 1989. That statement constitutes formal admission that the applicants had known of the alleged settlement as early as October, 1988 and discussed the matter with their solicitor of the day. [9] Counsel referred to several authorities but relied primarily on two: International Minerals Chemicals Corp. (Canada) Ltd. et al. v. Commonwealth Insurance Co. et al. (1990), 1990 CanLII 7419 (SK QB), 85 Sask. R. 304 (Q.B.) and Royal Bank of Canada v. Roles et al. (1992), 1992 CanLII 8097 (SK QB), 98 Sask. R. 146 (Q.B.). have reviewed both at length and The Queen’s Bench Rules of Saskatchewan: Annotated. also reviewed Queen’s Bench Rule 153 and it is relevant to quote it here: 153 party shall plead specifically any matter, fact or point of law which: (a) makes claim or defence of the other party not maintainable; or (b) if not specifically pleaded, might take the other party by surprise; or (c) raises issues not arising out of the preceding pleadings. Applicants’ counsel relied on the decision in International Minerals Chemicals Corp. (Canada) Ltd. et al. v. Commonwealth Insurance Co. et al. and quote from the extract cited in his brief: The plaintiffs contend there is another principle which must be considered. They say the material filed on the application must show that the proposed amendment presents an issue worthy of trial and is prima facie meritorious. This proposition does not appear to have taken root in Saskatchewan practice. Moreover, the accuracy of the proposition has been challenged in Ontario. am of the view that it would be improper for me to assess the material filed on this application with the purpose of determining if the proposed amendment is worthy of trial. Assessing evidence is solely the function of the trial judge. On the question of the merits of the application, am limited to deciding whether there is prima facie meritorious claim set forth in the proposed pleading itself. Here the pleading clearly meets the test. respectfully agree with that statement. The respondents rely on my decision in Roles v. Royal Bank which was an application at trial to amend statement of defence. The application raised number of issues that are similar to those now before me. [10] This application cannot succeed for variety of reasons. The action extended over four years and was, to all intents and purposes, ready for trial on October 25. The amendments proposed raise new and unexpected issues. The applicants can provide no explanation for their long delay in bringing these matters forward, particularly in light of the allegations in para. 4 and para. 9 of Ms. Kostiuk’s affidavit. There is no explanation as to why counsel did not alert counsel for the respondent at least before the trial and at the very least at a time when the matter could have been adjourned without any additional cost or inconvenience to the parties. There is no explanation as to why the motion was presented at the opening of the trial. [11] If the amendment were granted, it would mark a significant change in the course of the action: Roles v. Royal Bank. It would result, as respondent’s counsel points out, in further discoveries, examinations for discoveries and presumably a further pre-trial conference to address the completely new questions raised by the amendments. I have commented already on the fact that the applicants’ did not raise this new and substantive plea until the opening of the trial, but I also need to underscore the fact that the applicants are guilty of inexcusable laches in bringing the application. Why should 11 years pass before this issue is presented as significant and alternative plea to their oft-stated position that they are in no way liable for any breaches of trust? One would expect such plea to have been raised as the principal plea and in the first instance and without equivocation. The passage of time can only reflect on their own bona fides in this matter. [12] For all of these reasons, the application must be dismissed. do so and fix the costs at $400.00 to be paid by the applicants within 30 days. Counsel for the applicants urged me not to order payment forthwith, but have no hesitation in doing so in light of the conclusions have reached about the applicants’ motives in bringing the application. [13] Before ending my decision, must comment on one other matter. Counsel for the applicants applied for leave to argue his motion by telephone. refused leave. This was substantive motion. Argument occupied some considerable time in chambers and involved lengthy submissions by counsel. It was not proper matter to be conducted by telephone, nor is any substantive matter, no matter how much it may convenience counsel in particular case.

FIAT. The defendants sought to amend their statement of defence at the opening of trial. They applied to include accord and satisfaction as a defence, alleging that the parties had settled their differences through negotiations and the transfer of property 11 years earlier. Application opposed. Trial adjourned while motion heard in chambers. HELD: Application denied. This action extended over 4 years and was ready for trial. The applicants had no explanation for the delay in bring this matter. There was also no explanation for why the applicants' counsel did not alert the respondent's counsel before the trail or at least at a time when the matter could have been adjourned without additional cost or inconvenience. The applicants are guilty of inexcusable laches. The proposed amendments raised new and unexpected issues. It would be a significant change in the course of the action resulting in further discoveries, examinations, etc. to address the completely new questions raised by the amendments. Applicants to pay costs within 30 days. Applicants' request for leave to argue this motion by phone was refused as it was a substantive motion involving lengthy submissions by counsel.

1999skqb270.txt

THE COURT OF APPEAL FOR SASKATCHEWAN FIAT Filed November 17, 1994 RE: Henry Tranberg and Quentin Tranberg v. Lyle Mann File no. 1887 The appeal, insofar as it is based on s. 180(2) of theBankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, as am. by S.C.1992, c. 27, must be dismissed because the judge found that thedischarge had not been obtained by fraud, and we can find no errorin that determination. Insofar as s. 178(1)(e) of the Bankruptcy and Insolvency Act may or may not apply to the judgment held by the appellants, we wish to make it clear that we have made no finding in that respect, since that question was not before us.

FIAT An application was taken under s.180(2) of the Bankruptcy and Insolvency Act to set aside a bankrupt's discharge on the basis that it was obtained by fraud. A Queen's Bench Chambers Judge dismissed the application. This decision was appealed. HELD: Appeal dismissed. 1)The Court found no error in the trial judge's determination.

b_1994canlii4708.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2005 SKQB 279 Date: 20050615 Docket: Q.B.G. No. 2712/2002 Judicial Centre: REGINA BETWEEN: STEVEN CAMERON OLIVER and JULES JOSEPH DECORBY Counsel: Glen W. Dowling for the plaintiff Jeffrey G. Brick for the defendant JUDGMENT BALL J. June 15, 2005 [1] On December 27, 2000, the plaintiff was standing with other patrons near the entrance to the Last Straw Brew Pub in Regina when, without warning, he was punched in the face and knocked unconscious by the defendant. The plaintiff claims damages for injuries sustained in the assault. Liability is admitted, and the plaintiff now applies for summary judgment and an assessment of damages pursuant to Rule 485. [2] The parties agree that damages should be assessed on the basis of the affidavit evidence filed. They also agree that the court would be in no better position to make that assessment following trial. accept their submissions and will assess damages in the manner set out below. [3] The plaintiff’s affidavit describes the circumstances of the assault. The defendant has chosen not to file any affidavit in response. Accordingly, accept the plaintiff’s description of what occurred: 2. THAT on or about December 26, 2000 attended special function with some friends at the Last Straw Brew Pub at 271 Albert Street North, Regina, Saskatchewan. 3. THAT shortly after midnight disturbance occurred between some patrons at the Last Straw Brew Pub and the staff members attempted to escort the unruly persons outside. 4. THAT at the time of the aforementioned disturbance happened to be standing near the main entrance and witnessed the entire event. Some of the staff members were friends of mine and was concerned for their safety. was not involved in anyway in the disturbance other than as an observer. 5. THAT the Defendant, JULES JOSEPH DECORBY, was apparently with the persons involved in the disturbance. 6. THAT at the apparent conclusion of the aforesaid disturbance after the unruly patrons had been ejected from the premises, the Defendant, JULES JOSEPH DECORBY, without warning or provocation punched me with full force to the left side of my face. 7. THAT the force of the Defendant’s attack was so severe that it knocked me unconscious to the ground; fractured my left eye socket; broke my nose; shattered by[sic] front two teeth. When regained consciousness was taken to the Pasqua Hospital Emergency Department for treatment. was treated on an emergency basis and released and referred to Dr. Peter S. Chang, M.D. Attached hereto and marked as Exhibit “A” are set of three photographs of me which were taken on December 27, 2000 and which adequately represent what looked like on that day. [4] The photographs attached to the plaintiff’s affidavit depict severe injury to the area of his left eye and nose. In addition to what can be observed in the photographs, the plaintiff sustained damage to several of his teeth on the upper left side. That damage is described in medical report dated September 4, 2002, from his dentist, Dr. Donald K. Miller: Several of the teeth on Cam’s upper arch were shifted causing nerve damage. In order to retain these teeth and restore full function they will need root canal treatment followed by crowns. Please find attached an estimate of the treatment Cam needs and the costs involved. Once this treatment is complete Cam can expect it to last approximately ten to fifteen years. At that point further bridgework or extraction of the damaged teeth may be needed. [5] medical report dated August 12, 2004, from Dr. Peter S. Chang confirms that the plaintiff sustained communited fracture of the left medial orbital rim area as well as left side of the nose and nasal bone. Nasal packing and splinting was performed. Some continuing deviation to the left side of his nose remains because the plaintiff removed the packing prematurely. This can be dealt with by elective surgery (which the plaintiff has chosen not to have) but it is not medically required. [6] The plaintiff says that he experienced considerable pain for several months after the assault. His fractured left eye socket and broken nose have healed but there is an apparent indentation to the eye socket and his nose is asymmetrical. His left eye socket is sensitive and he has some difficulty breathing through his nose. There is minimal scarring in the area of his left eye and nose. [7] As result of his assault on the plaintiff, the defendant was charged with assault causing bodily harm under the Criminal Code, R.S.C. 1995, c. C-46. He eventually pled guilty and on December 2, 2002, was sentenced by the Provincial Court to fine of $1,500.00, placed on probation for period of 18 months, and ordered to make restitution to the plaintiff for the cost of dental work in the amount of $3,263.30. 1. Submissions by Counsel: [8] Counsel for the plaintiff relies on the following case authorities in support of his contention that the plaintiff’s general damages should be assessed at between $18,000.00 and $35,000.00: Medynski and Lewis v. Schmalz (1993), 1993 CanLII 8800 (SK QB), 115 Sask. R. 212 (Sask. Q.B.); Nyrose v. Barts [1997] B.C.J. No. 2317 (B.C.S.C.); Bast v. Property Development Ltd.1999 SKQB 110 (CanLII); (1999), 187 Sask. R. 102 (Sask. Q.B.); Morse v. Cott Beverages West Ltd. et al.2001 SKQB 550 (CanLII); [2002] W.W.R. 281 (Sask. Q.B.). In addition, the plaintiff claims the difference between the full cost of dental treatments ($5,175.00) less the amount received pursuant to the Provincial Court restitution order ($3,263.30) or the sum of $1,911.70. The plaintiff also seeks aggravated damages in the range of $5,000.00 to $10,000.00 plus costs and pre-judgment interest. [9] The defendant relies on the following case authorities to support his contention that damages should more appropriately be in the range of $7,500.00 to $9,000.00: Zabolotny v. Sloane (1998), 1998 CanLII 28117 (MB QB), 128 Man. R. (2d) 82 (Man. Q.B.); Saviskoff v. Morton [1997] B.C.J. No. 441 QL (B.C.S.C.); Lang v. Bognar [1997] O.J. No. 191 QL; (1997), 22 O.T.C. 123 (Ont. Ct. of Justice); Castelluzzo v. Ruzzuto [1991] O.J. No. 1111 QL (Ont. Ct. of Justice). Counsel for the defendant also submits that no special damages have been proven by the plaintiff, and that no aggravated damages can be awarded because the plaintiff did not expressly plead them in his statement of claim. [10] Each party contends that the cases relied upon by the other party involved injuries that were not comparable to those sustained by the plaintiff in this case. 2. General Damages: [11] Previous judgments in this and other jurisdictions can be helpful in establishing range of damages. However, factual comparisons based on case reports are at best imperfect. Within the appropriate ranges, each case must be sensitive to and decided upon its own particular facts. [12] In assessing general damages find that the injuries sustained by the plaintiff as result of the defendant’s assault were serious but not life threatening. I accept that the plaintiff suffered significant pain and suffering for a number of months after the assault. Extensive dental treatment was required and further treatment will be required at some point in the future. The plaintiff has some minimal scarring and disfigurement but find that it is not significant. Excluding any component for aggravated damages I conclude that a fair award for general damages is $12,500.00. 3. Aggravated Damages: [13] In his text, Personal Injury Damages in Canada, 2nd ed. (Carswell: Toronto, 1996) Cooper-Stephenson reviews the nature and scope of aggravated damages at p. 527: Aggravated damages are simply variety (or possibly sub-head) of non-pecuniary damages. They too compensate for intangible loss, but in particular for hurt feelings caused by the nature of the defendant’s conduct. The range of injured feelings will of course vary with the circumstances, but it often embraces such emotion as humiliation, indignity, degradation, shame, indignation, and fear of repetition. Whereas damages for pain and suffering cover distress caused by the physical injuries themselves, aggravated damages cover distress caused by the character or form of the defendant’s misbehaviour. What amount in substance to aggravated awards have long been allowed by the law. In Guillet v. Charlebois [1935 CanLII 220 (SK CA), [1935] W.W.R. 438] for example, in the Saskatchewan Court of Appeal, Martin J.A. confirmed that the courts were not restricted to actual loss “but may consider the pain and suffering, the wounded feelings of the plaintiff, the indignity suffered. .”. But it was not until Rookes v. Barnard [[1964] All E.R. 367 (H.L.)] in 1964 that the phrase “aggravated damages” gained real prominence, stemming chiefly from the need to distinguish aggravated from exemplary damages. Aggravated damages are typically awarded in cases of intentional wrongdoing, that sort of conduct being most likely to occasion bruised feelings. Not surprisingly, the common instance in the domain of personal injury are actions for assault and battery including, increasingly, claims for sexual assault. As regards pleadings, in general it appears unnecessary to plead aggravated damages specifically, though it is of course necessary to allege the supporting facts. Absent sufficient proof of such allegations, aggravated damages will likely be denied. [14] In summary, aggravated damages are variety of non-pecuniary damages aimed at assuaging wounded feelings. The key factors are the nature of the hurt feelings and their impact on the plaintiff’s lifestyle, together with their past and projected duration. [15] Counsel for the plaintiff asks for an award of aggravated damages “in the range of” $5,000.00 to $10,000.00. Counsel for the defendant submits that no such award can be made because the plaintiff did not expressly plead claim for aggravated damages. In support of that proposition he relies on the following statement by the Saskatchewan Court of Appeal in Lauscher v. Berryere, 1999 CanLII 12242 (SK CA), [1999] W.W.R. 476; 177 Sask. R. 219 at para. ¶11 In this jurisdiction claims for aggravated and punitive damages must be expressly pleaded, given the requirements of the Queen’s Bench Rules governing the subject of pleading: Rieger v. Burgess (1988), 1988 CanLII 209 (SK CA), 66 Sask. R. (Sask. C.A.). (See, too, Atkins Court Forms (2nd ed.), Vol. 32 (1996 issue) at p. 29). It is therefore necessary that the statement of claim not only ask for punitive damages but specify the misconduct upon which the cause of action is said to give rise to liability for such damages. [16] Lauscher v. Berryere was case in which trial judge rejected jury’s award of exemplary damages on the basis that it was plainly unreasonable and unjust. The Court of Appeal confirmed the trial judge’s decision for number of reasons. One was that the statement of claim “did not plead case for punitive damages by alleging misconduct of the requisite nature, identifying the offending conduct of each of the defendants and asking for exemplary or punitive damages in consequence”. second was that the defendants had ceased to actively defend the action before trial, did not attend the trial, and were not served with notice of claim for punitive damages. third was that the award was devoid of any evidentiary support and, in any event, was so inordinately high as to preclude judgment from issuing upon it. fourth was that the issue of punitive damages “arose as something of an afterthought” and was “placed before the jury rather incidentally, and on the most general of footings, leaving the jury’s verdict to rest upon foundation incapable of supporting it”. [17] As authority for its comment in Lauscher v. Berryere concerning the need to plead claims for aggravated damages, the Court of Appeal referred to its own earlier decision in Rieger v. Burgess (1988), 1988 CanLII 209 (SK CA), 66 Sask. R. 1, another case in which trial judge had reassessed the amount awarded by jury for non-pecuniary loss. The court reviewed Queen’s Bench Rule 153 (which requires party to plead specifically any matter, fact or point of law which, if not specifically pleaded, might take the other party by surprise), reviewed the purposes of that Rule, and concluded at para. [55] These general purposes suggest that matters in aggravation of damages ought to be pleaded which accounts no doubt for the practice in this jurisdiction of doing so. [18] In summary, the authorities relied upon by the defendant did not decide that plaintiff must specifically and expressly plead claim for aggravated damages, as opposed to alleging and proving the facts necessary to support such an award. The most important issue concerning the sufficiency of pleadings remains whether the defendant is informed of the case to be met and is not unfairly taken by surprise. [19] In this case the plaintiff’s claim recites the facts surrounding the assault and describes the injuries which he sustained. Although his claim alleges that he suffered “loss of enjoyment of life”, his affidavit does not claim that he experienced the humiliation, indignity, degradation, or shame (in short, the “hurt feelings”) for which aggravated damages are awarded. Moreover, the affidavit does not state that the plaintiff’s lifestyle was affected by what occurred. In that sense the pleadings and the evidence do not support a substantial award for aggravated damages. However, the photographs attached to the plaintiff’s affidavit graphically depict the extent to which his appearance was altered by his extensive facial injuries, perhaps more effectively than words could have done. To some extent, as well, the requisite “hurt feelings” can reasonably be inferred from the fact that the plaintiff was rendered unconscious on the ground in a crowd of onlookers. I have decided that those circumstances justify an award of aggravated damages in the sum of $2,000.00. 4. Special Damages: [20] accept that the plaintiff should be compensated for the difference between the full costs of required dental treatment less the amount reimbursed to him by way of the Provincial Court restitution order. This difference amounts to the sum of $1,911.70. decline to order any additional amount for potential future dental care and treatment because there is no evidence on which can base such an assessment. SUMMARY [21] The plaintiff shall have judgment against the defendant calculated as follows:(1) General damages $12,500.00(2) Aggravated damages $ 2,000.00(3) Special damages $ 1,911.70Total $16,411.70plus pre-judgment interest pursuant to The Pre-Judgment Interest Act, S.S. 1984-85-86, c. P-22.3 and costs to be taxed.

The plaintiff claims damages for injuries sustained when he was punched in the face and knocked unconscious by the defendant. Liability is admitted. The plaintiff applies for summary judgment pursuant to Rule 485 of the Queen's Bench Rules. The parties agree that damages should be assessed on the basis of the affidavit evidence. HELD: 1) The defendant pled guilty to a charge of assault causing bodily harm. He was sentenced to a fine of $1,500, placed on probation for 18 months and ordered to make restitution to the plaintiff for the cost of the dental work in the amount of $3,263.30. 2) The plaintiff suffered serious injuries and significant pain for a number of months after the assault. Extensive dental treatment was required and will be required at some point in the future. The plaintiff has minimal scarring. He is awarded general damages of $12,500. 3) The pleadings and the affidavit evidence do not support a substantial award for aggravated damages. However, the photographs graphically depict the extent to which his appearance was altered. Hurt feelings can reasonably be inferred from the fact that the plaintiff was rendered unconscious on the ground in a crowd of onlookers. These circumstances justify an award of aggravated damages in the sum of $2,000. 4) The plaintiff was awarded special damages in the amount of $1,911.70.

4_2005skqb279.txt

J. Q.B.C.A. A.D. 1993 J.C.S. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON and HER MAJESTY THE QUEEN RESPONDENT M.W. Owens for the appellant T. Hinz for the respondent JUDGMENT OSBORN J. January 23, 1995 The appellant was, on March 10, 1993 convicted ofthe followingcharge:(a)That A. M. on or about the 7th day ofSeptember, 1992 did while her ability tooperate a motor vehicle was impaired byalcohol or a drug operate a motor vehicle,contrary to Section 253(a) of the CriminalCode. The appellant appeals from the conviction. Thegrounds for appeal are as follows:(a)That the conviction was contrary to thelaw, the evidence and weight of the evidence;(b)That the learned trial judge made an errorin law in determining the degree of impairmentby alcohol or drug required before aconviction can be entered; (c)Such further and other grounds as counsel may advise and this Honourable Court may allow. As to the second ground of appeal, the trial judge at p. 281 of the transcript said: The youth is also charged under count one with driving while impaired on the date in question. As pointed out to Counsel at the conclusion of the trial, there is recent decision from the Ontario Court of Appeal dated January 7th, 1993, namely, The Queen vs. Stellato in regards to the standard of proof required for conviction on charge of impaired driving. In particular, the case deals with whether or not "marked departure from what is usually considered as the norm" is required for conviction. The expression marked departure comes from the case The Queen vs. McKenzie, 1955, 111 Canadian Criminal Cases, Page 317. It has been used extensively in cases since that date. Indeed MacKenzie continues to be followed in Alberta in recent decisions. However, the Stellato decision differs with the marked departure standard. The Ontario Court of Appeal decides that, and quote: "impairment is an issue of fact which the trial judge must decide on the evidence and the standard of proof is neither more nor less than that required for any other element of criminal offence: courts should not apply tests which imply tolerance that does not exist in law." Further, the Stellato decision states as follows: "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." am in agreement with the Stellato decision. In particular, agree with their statement that evidence of impairment can include range of impairment from slight to great. In the case before me, am satisfied beyond any reasonable doubt that A. M.'s ability to operate motor vehicle was impaired by alcohol on the date in question. The Stellato case referred to by the trial judge has been affirmed by the Supreme Court of Canada, [1994] S.C.R. 478 and has been followed by the Court of Appeal of Saskatchewan in R. v. McCallum, (unreported decision dated October 25, 1994, No. 6334) which confirmed that impairment is an issue of fact. The second ground of appeal, as well as the remaining grounds of appeal all turn essentially on questions of fact. The essence of the appeal is alleged errors by the trial judge in assessing the evidence and the credibility of the appellant and her witnesses. Findings of fact are not to be reversed on appeal unless it can be established that the trial judge made some palpable and overriding error which affected her assessment of the facts. See Lensen v. Lensen, 1987 CanLII (SCC), [1987] S.C.R. 672. I am unable to say that an error of that kind wasmade by the trier of fact in this case. As well, the appellant is faced with the trial judge's assessment of credibility. The trial judge heard and observed the parties. There is no basis upon which her findings on credibility can be disturbed. The task of this Court is not to retry the case. Absent the kind of error alluded to, this Court cannot substitute its opinion for that of the trial judge on questions of fact, and there are no inferences of fact to be deduced from the trial judge's findings of fact which contradict her resolution of the issue before her. It cannot be said that the findings by the trial judge are not supported by the evidence, or that her conclusions are clearly wrong as to make her decision unreasonable. The appellant has therefore failed to come within the provisions of s. 686(1)(b)(ii) of the Code. Likewise, the appellant has not shown an error by the trial judge on question of law as provided in s. 686(1)(a)(ii). The appeal is therefore dismissed.

The accused appealed her conviction on a charge of impaired driving. The grounds of her appeal were that the trial judge erred in determining that she was impaired, and that the trial judge otherwise misconstrued and misapplied the evidence. HELD: Appeal dismissed. 1)Both grounds of appeal raised questions of fact. Findings of fact are not to be reversed on appeal unless it can be established that the trial judge has made some palpable and overriding error which affected her assessment of the facts. 2)The Court's task is not to retry the case or substitute its own decision. A trial judge's findings of fact can only be overturned if they are so clearly wrong as to make the decision unreasonable. 3)The Court was unable to say that an error of that kind was made by the trial judge in this case.

b_1995canlii6027.txt

IN THE SUPREME COURT OF NOVA SCOTIA Citation: Finlayson Estate (Re), 2008 NSSC 58 Date: 20080228 Docket: Probate No. 14525 Registry: Truro In The Matter of: Margaret Finlayson, Deceased and In the Matter of: The Application of Alex D. Finlayson, Executor, and Elaine Brooks, Respondent, with respect to certain Royal Bank of Canada share certificates/securities and In the Matter of: The Application of Elaine Brooks for the Removal of Alex D. Finlayson as the Executor of the Estate of Margaret Finlayson, Deceased Judge: The Honourable Justice Arthur J. LeBlanc Heard: December 19, 2006, in Truro, Nova Scotia Final Written Submissions: May and 15, 2007 Oral Decision: April 27, 2007 Written Decision and Decision on Costs: February 28, 2008 Counsel: William L. Ryan, Q.C., for the Applicant Melinda J. MacLean, Q.C., for the Respondent By the Court: [1] The applicant, Elaine Brooks seeks an order removing the executor, Alexander Finlayson, pursuant to s.61(1)(b)(v) of the Probate Act. The executor is the husband of the testator, Margaret Finlayson, and was designated as the sole executor in her will in December 2000. The applicant, a niece of the testator, is the alternate executor. Mrs. Finlayson died on April 15, 2004. Probate was granted on July 8, 2005. gave an oral decision stating my disposition of this matter on April 27, 2007. [2] At the time of her death, Mrs. Finlayson was registered owner of certain Royal Bank of Canada shares. These shares were held in joint tenancy with the applicant. In September 2005, the executor applied to the Probate Court for hearing to show cause why the testator’s interest in those securities should not be treated as an asset of the estate or, in the alternative, subject to certain trusts. Mr. Finlayson indicated in his affidavit that the Royal Bank shares, with value in excess of $500,000.00, were registered in Ms. Brooks’ name in order to avoid probate, that the estate had demanded the return of the shares and that Mrs. Brooks had refused. Mr. Finlayson was discovery in connection with this application in March 2006. [3] The applicant argues that the evidence given by the executor on discovery in March 2006, “raises grave concerns about his mental competency to continue to act as executor” and suggests that Mr. Finlayson “has passed over control of all his affairs, including the executorship” to John Conrod, a third party. This, it is submitted, is an express contradiction of Mrs. Finlayson’s will. The applicant submits that the discovery transcript reveals that Mr. Finlayson “is clearly not capable of supervising the activities of Mr. Conrod and ... has no idea of the investments and activities of Mr. Conrod.” The discovery testimony allegedly indicates that Mr. Finlayson lacks the mental faculties required to administer the estate. As result, the terms of the will are allegedly not being met, and the interests of beneficiaries are being prejudiced. [4] Ms. Brooks claims that she is interested in the estate because she is designated as alternate executor. In her affidavit, dated October 23, 2006, she identifies several other “persons interested in the estate” pursuant to s. 63(1) of the Probate Court Practice, Procedure and Forms Regulations. Aside from Mr. Finlayson, she refers to Noel Brooks, Estelle Brooks, Lois MacDonald, Lorna MacDonald, John Conrod, St. Peter’s United Church Cemetery and Grand River United Church Cemetery. The will designates Mr. Finlayson as the sole beneficiary. Ms. Brooks and the other “persons interested” were only entitled under the will in the event that Mr. Finlayson predeceased his wife. [5] The executor resists the application, claiming that he is competent to administer the estate. The Discovery Transcript [6] In the discovery examination, Mr. Finlayson had no difficulty recalling his wife, as well as her father’s name. He stated that he did not know much about the bank shares, which his wife took care of. He said she had inherited bank shares from her father, but he did not know how many. She also bought bank shares after the war, but he did not know how many. He said the shares were placed in bank safety deposit box at Royal Bank at the Mic Mac Mall in Dartmouth, but could not say how long they remained there. He could not recall the name of the bank. He said he never saw the keys to the safety deposit box. He said the shares were moved to safety-deposit box at bank in Truro when they moved there. He believed that his wife had started cashing in the shares. He remembered her and Elaine Brooks (or her mother Estelle Brooks) carrying envelopes that he believed had share certificates in them. He did not remember the shares being lost at one point. [7] Elsewhere in his discovery examination, Mr. Finlayson said he did not know what an affidavit was, did not know if he had signed document in the proceedings and appeared to be unaware that he was involved in court proceeding. He said he was “very confused most ... 95 percent of the time ...”. When asked about Ms. Brooks and the Royal Bank shares, he said there was an incident “when we started ... going to Brookfield to cash them and it came we didn’t own them anymore.” By “we” he said he meant himself and his wife. At that point, he said, he “lost track of the whole system” and “turned my troubles over to John Conrod,” whom he described as “a friend of mine ... he’s my banker and everything else. Banker and buyer and everything.” He said he was told that he should get lawyer. At that point, Mr. Conrod “came in and took over.” [8] Mr. Finlayson had no clear idea of what an executor was. When asked whether he knew who was responsible for looking after his wife’s estate, he said “No ... turned ... all of that over to John Conrod because I’m not capable ... of doing that, and have an efficient law lady ... that is the best ... can do, and what else can do?” He said he believed Mr. Conrod was “quite capable of taking care of my little business.” Asked what he had done in relation to the estate, Mr. Finlayson said “I don’t think have ... haven’t done anything ...” As to obtaining the grant of probate, he said, “I had nothing to do with it, not that know of.” [9] Mr. Finlayson was apparently unaware that the Royal Bank shares were registered jointly in the names of his wife and Ms. Brooks. He did not know how many shares were registered at the time of his wife’s death. He did not understand what trust was. He said he had understood that the shares were in the name of his wife and her mother, and agreed that his name was never on the shares. He knew that his and his wife’s wills had been prepared by Blair MacKinnon. He knew Estelle Brooks, but could not say whether she was related to his wife. Other Evidence [10] The estate has submitted an affidavit by Sharon Lynds, the owner and operator of Meadowland Villa Senior Care in Bible Hill. She states that Mrs. Finlayson was resident of the facility from the spring of 2000 until her death in April 2004. Mr. Finlayson has been resident since the fall of 2001. Based on her regular contact with him, she took the view that he “has had hearing and sight difficulties consistent with his age in the past few years,” including the need for hearing aids and cataract operations. Apart from these matters, she states, his health status, “both physical and mental, to my observation, has remained good.” She said he maintained an active daily routine, reads the newspaper, watches television news, and takes an interest in world news, technical advances and the business affairs of the facility. She stated that he was “sharp as tack” in conversations with her on one-on-one basis, but “has difficulty hearing in larger spaces and when groups of people are talking.” She said he “has always talked about ‘the Royal Bank shares’ or ‘certificates’ and the subject continues to trouble him. He has told me many times that there is court case on regarding ‘the shares’.” [11] Ms. Lynds concluded that Mr. Finlayson was almost 100 years of age and apart from hearing and sight deterioration, and “a general slowing down, all of which in my experience is age appropriate, believe that Mr. Finlayson, considering his age, continues to enjoy fairly remarkable physical and mental capacities.” [12] The estate has also submitted an affidavit by John Conrod. Mr. Conrod stated that he has known Mr. and Mrs. Finlayson for 25 to 30 years, having lived near them until they moved to Bible Hill in the 1990s. He looked after their winter snow removal. He said he maintained contact with them after they moved to live in mini-home on the property of Mrs. Finlayson’s niece, Estelle Brooks, and her husband, Noel Brooks. He stated that in 2002 Mr. Finlayson told him “that there was conflict between him and Elaine Brooks, daughter of Estelle and Noel Brooks, concerning Margaret’s Royal Bank shares.” He said Mr. Finlayson asked him “to assist him with his personal affairs as needed as he had no family on mainland Nova Scotia, other than Margaret, whose health was failing. Alex Finlayson had no operator’s license and was dependant upon others for transportation for banking, any medical/health appointments and the like.” He stated that Mr. Finlayson later informed him that he had made himself and Mr. Finlayson’s lawyer, Blair MacKinnon, his attorneys under Power of Attorney, which had never become active, as Mr. Finlayson “continues to manage and supervise his personal, financial and legal affairs providing direction to me as necessary.” As to Mr. Finlayson’s health, Mr. Conrod stated that he “has experienced sight and hearing problems in recent years, he seldom requires the attention of doctor other than for his annual checkup. believe he takes blood pressure medication. Otherwise, he remains astute to his affairs and in particular, the court case regarding Margaret Finlayson’s Royal Bank shares which he often discusses.” [13] The Probate Act states, at s.61: 61(1) On the application of any person, the court may remove personal representative where the court is satisfied that removal of the personal representative would be in the best interests of those persons interested in the estate and, without limiting the generality of the foregoing, if the court is satisfied that *** (b) the personal representative (I) is neglecting to administer or settle the estate, *** (v) is mentally incompetent ... (3) Where the court removes or discharges personal representative, it shall appoint new personal representative in the place of the personal representative that was removed or discharged. [14] While the Act does not define “person interested in an estate”, the Probate Court Practice, Procedure and Forms Regulations describes “person interested in the estate” for the purposes of Part III of the Regulations, which is titled “Accounting, Settlement and Distribution.” The Regulations provide, s.52: 52(1) Subject to subsection (2), person interested in an estate is, for the purposes of this Part, any (a) residuary beneficiary; (b) unpaid non-residuary beneficiary; (c) person entitled to share in the distribution of the estate on an intestacy; (d) life tenant; (e) trustee, guardian, court-appointed guardian or attorney appointed under the Power of Attorney Act for person under disability; (f) trustee, guardian, court-appointed guardian or attorney appointed under the Powers of Attorney Act for missing person or unascertained person; (g) the Public Trustee, where the Public Trustee Act applies; (h) unpaid claimant or creditor who has filed claim in accordance with Section 48; (I) unreleased security. (2) person who has signed release in Form 36 is not, for the purposes of this Part, person interested in an estate. [15] Lacking definition in the statute, and reverting to the definition in the Regulations, leads to the conclusion that the only “person interested in the estate” is Mr. Finlayson. He is the sole residuary beneficiary. Under this definition, Ms. Brooks does not qualify as “person interested in the estate”. However, the application to remove an executor can be made by “any person.” [16] Widdifield on Executors and Trustees, 6th edn., sets out several circumstances in which trustees have been removed, including incapacity through illness, age or inclination and lace of appreciation of duties (pp. 15/11-15/12). In Re Galbraith, [1951] All E.R. 470 (Prob. Div.), the Court removed two executors on the basis that they were unable to perform their duties on account of advanced age and physical and mental infirmity. Karminski, J., said: The application is novel one in that there appears to be no reported case in which both executors have been removed in this way, but in the present case there is the clearest evidence that both the surviving executors are of advanced age and suffering from such degree of physical and mental infirmity as makes continuance of their duties impossible. For reasons due to conditions in the Argentine, the estate has not yet been wound up, and have to consider the object of the court in looking after the estate, in looking after the proper representation, and not least, in looking after the interest of the parties beneficially interested ... [17] similar result occurred in Re Derrick, [1936] O.W.N. 223 (Ont. S.C.-H.C.J.), where the Court concluded that the estate required continual care and attention by capable executor or trustee. The executor did not live in Toronto, where he was required to travel to carry out estate business, and certain legacies were not being paid. Kelly, J. concluded that “[t]he executor has not appreciated, and does not appreciate, the responsibility of his position as executor, or the necessity of due and prompt fulfilment of the duties thereof” (paragraph 11). In addition, the Court stated, at paragraph 12, [h]is mode of administration of the estate and his incapacity for his position, as evidenced by what is above mentioned and by other matters set out in the material filed, endangered or prejudiced the interests of those who have claims against the estate, particularly those whose claims have priority over the residuary devisee, by the payments to whom these prior claims have already been delayed. [18] The respondent refers to Letterstedt v. Broers (1884), App. Cas. 371, where the Privy Council stated: [I]n cases of positive misconduct Courts of Equity have no difficulty in interposing to remove trustees who have abused their trust; it is not indeed every mistake or neglect of duty, or inaccuracy of conduct of trustees, which will induce Courts of Equity to adopt such course. But the acts or omissions must be such as to endanger the trust property, or to show want of honesty, or want of proper capacity to execute the duties, or want of reasonable fidelity. *** [I]f satisfied that the continuance of the trustee would prevent the trusts being properly executed, the trustee might be removed. It must always be borne in mind that trustees exist for the benefit of those whom the creator of the trust has given the trust estate. *** In exercising so delicate jurisdiction as that of removing trustees, their Lordships do not venture to lay down any general rule beyond the very broad principle above enunciated, that their main guide must be the welfare of the beneficiaries. Probably it is not possible to lay down any more definite rule in matter so essentially dependent on details often of great nicety. But they proceed to look carefully into the circumstances of the case. [19] In Re J.J., [2003] N.S.J. No. 384, 2003 NSSF 42 (S.C.) (CanLII), on six-month review of an Adult Protection Act order, the Court refused to appoint guardian ad litem where there was working relationship between solicitor and the adult for whom guardian was sought. psychiatrist gave the opinion that the person was competent to retain and instruct counsel on specific issues, which the Court held was sufficient to permit the individual to continue without guardian. [20] In the course of the proceeding, the Court was informed that Ms. Brooks would not be suitable executor. It was suggested that the Public Trustee should act as executor, but the Public Trustee has declined to do so. [21] There was no medical evidence submitted in support of the applicant’s claim that Mr. Finlayson is not competent to administer the estate. The applicant relies entirely upon Mr. Finlayson’s answers given in discovery. Mr. Finlayson was 99 years of age at the time of the hearing. He has difficulties with eyesight and hearing, and clearly had difficulty comprehending and responding coherently to the questions he was asked on discovery. He made it clear that he relies heavily on Mr. Conrod in dealing with his affairs. He said his wife was very secretive and possessive with respect to the bank shares, and he therefore, did not have full understanding of how they were dealt with. [22] The respondent argues that there is no basis upon which to remove the present executor. There is no reason to believe that the testator’s instructions will not be carried out. It is significant that Mr. Finlayson is the only beneficiary of the will. The alternative beneficiaries are not entitled to any benefit under the will, given that Mr. Finlayson survived his wife. [23] am satisfied that the removal of an executor requires two-part test. First, it must be established that the executor is unable to perform his duty to administer the estate on account of age, infirmity or illness. Second, it must be shown that primary beneficiary’s interest in the estate is at risk. In the present case, the first branch of the test is met. I am satisfied from a review of the discovery evidence that Mr. Finlayson does not have a clear understanding of his duties. While he claims he can instruct counsel, it is clear that he is relying heavily upon Mr. Conrod, as well as counsel. infer that counsel prepared the affidavit submitted in support of the show-cause application. This is evident from his answers on discovery. He appeared to have some recollection of certain events, but weak grasp of other events. [24] emphasize that these conclusions about Mr. Finlayson’s grasp of his affairs have no significance beyond this application; there was no medical evidence submitted relating to his mental state, and there was contrary evidence submitted on behalf of the estate in the affidavits of Ms. Lynds and Mr. Conrod. These comments are limited to Mr. Finlayson’s duty as executor. [25] On the equally important second test, however, I am satisfied that Mr. Finlayson himself is the only person whose interest is at risk if he fails to properly administer the estate. He is the only beneficiary of the will. As was the case in Re J.J., it is my view that, although Mr. Finlayson has difficulties with vision and hearing and lacks clear understanding of the proceeding or his position as executor, believe, based on all the evidence, that he has sufficient presence of mind to instruct counsel in the circumstances. [26] This broader context of this proceeding is to require Ms. Brooks to show cause why the Royal Bank shares held in her and the testator’s names as joint tenants should not be treated as assets of the estate and included in the will. Whether the executor will be in position to testify on this issue will depend on his apparent competence. am not deciding that issue today. [27] The application to remove Mr. Finlayson as executor is dismissed. [28] Counsel on behalf of Ms. Brooks submits that costs should be in the cause. However, in this instance it is appropriate that fix costs. Counsel on behalf of the estate claim that the estate has incurred disbursements as follows: Office Administration 60.00 Brief Binding 22.89 Courier 11.01 Research 60.42 Travel 90.00 Total $244.32 HST 14% am awarding the sum of $1,000 plus HST of 14 percent in costs and $244.32. Plus HST of 14 percent for disbursements payable in any event in the cause.

The estate applied to have the court find that a large number of bank shares which had been gratuitously transferred by the deceased to her great niece were being held in trust for the deceased. Following discovery examinations, the great niece, who was the alternative executor appointed under the will, applied to have the executor, the deceased's husband, removed on the basis that his discovery evidence raised grave concerns about his mental capacity to continue to act as executor. Application to remove the executor dismissed; there was no medical evidence submitted in support of the applicant's claim that the executor was not competent to administer the estate and although it was clear from the discovery evidence that he did not have a clear understanding of his duties as executor, given that he was the only beneficiary under the will, he was the only person whose interest was at risk if he failed to properly administer the estate.

9_2008nssc58.txt

Dated: 20020605 2002 SKCA 74 Docket: 476 THE COURT OF APPEAL FOR SASKATCHEWAN Coram: Cameron, Sherstobitoff Lane JJ.A. CHARLES PEARLMAN and THE UNIVERSITY OF SASKATCHEWAN, THE COLLEGE OF MEDICINE OF THE UNIVERSITY OF SASKATCHEWAN and THE DEPARTMENT OF SURGERY INVESTIGATION COMMITTEE RESPONDENTS and THE PROFESSIONAL ASSOCIATION OF INTERNES AND RESIDENTS OF SASKATCHEWAN INTERESTED PARTY COUNSEL: Mr. Brian J. Scherman, Q.C. for the Appellant Ms. Catherine A. Sloan and Mr. Collin K. Hirschfeld for the Respondents No one appeared for the Interested Party DISPOSITION: On Appeal From: Q.B.G. No. 2120 of 2001, J.C. Saskatoon Appeal Heard: May 15, 2002 Appeal Dismissed: June 5, 2002 Written Reasons: June 5, 2002 Reasons By: The Honourable Mr. Justice Lane In Concurrence: The Honourable Mr. Justice Cameron The Honourable Mr. Justice Sherstobitoff [1] The appellant was unsuccessful in his application before Queen’s Bench judge in chambers both to have his suspension and probation as medical resident rescinded, and to prohibit the Investigation Committee established to look into the matter from taking further action. He appeals the resulting order from the Queen’s Bench Chambers judge. The facts are more fully set out in the judgment below and only brief recitation is necessary here. [2] The appellant is medical resident pursuing certification as specialist in orthopaedic surgery at the respondent’s College of Medicine. He received unsatisfactory evaluations, the first occurring in October of 1999 which he appealed in November of 1999. An appeal committee was struck pursuant to the provisions of the College of Medicine, Regulations for Dealing with Unsatisfactory Evaluations and Disciplinary Action Part (“ regulations”). As well, the Orthopaedic Residency Training Committee met and placed the appellant on probation pursuant to the guidelines for Residency Training Committees. This latter committee’s minutes were forwarded to the Associate Dean of Postgraduate Medical Education who ruled the issues should be dealt with under Part of the regulations headed Regulations For Dealing With Disciplinary Action”. This choice was made after the appellant’s union (PAIRS) met with the Associate Dean and persuaded her this procedure should be followed for it would give the optimum benefit to the appellant. [3] Pursuant to Part B, an Investigation Committee (“committee”) was established. The proceedings and composition of this committee are the subject of the application and this appeal. Pending the investigation, the appellant was placed on probation with pay effective November 17, 1999. [4] The committee forwarded all letters of complaint and all related information to the appellant on December 15, 1999. It then met on approximately seven occasions and interviewed seven witnesses. On March 22, 2001, the committee met with the appellant, his counsel, the union’ counsel, and counsel for the University. At that time the appellant raised the issue of bias on the part of the committee. The committee considered the matter and, by letter dated August 21, 2001, advised the appellant the committee would proceed as constituted. [5] The appellant then brought the application for an order prohibiting the committee from proceeding further and ordering him reinstated as resident. The Chambers judge refused to grant the relief requested, finding the issues to be academic in nature and thus within the exclusive jurisdiction of the University, but did rule the appellant’s supervisor should be removed from the committee because of an apprehension of bias. [6] The appellant contends the issue is not academic in nature but is matter of disciplinary proceedings and the court has the power to review the matter. As it is disciplinary in nature and can ultimately result in his dismissal, he argues he is entitled to procedural fairness including full hearing, the right to cross-examine witnesses, to call his own witnesses, the right to active legal representation, and the right to full disclosure. He further argues all of the committee members, except the representative of the appellant’s union, should be excluded from serving on the committee by reason of bias. [7] As stated above, relying on the authority set out in Regina v. University of Saskatchewan, Ex parte King[1] (a decision of this Court affirmed by the Supreme Court of Canada), the Chambers judge found the issues to be essentially academic in nature and not subject to review by the courts except from the perspective and dicta of King, including the requirement the University’s processes be conducted fairly in accordance with the principles of natural justice. As the issues are academic matters the University has exclusive jurisdiction. He went on to rule the appellant’s supervisor should not sit on the committee because his presence gave rise to an apprehension of bias, but found no reason why the rest of the committee should not proceed to complete the task. [8] The Chambers judge refused to quash the committee’s work on grounds of delay and found the appellant responsible for at least some of the delay. He also found there were further procedural steps (including appeals pursuant to the regulations) available to the appellant, and it was not the committee’s decision to ultimately dismiss the appellant if the recommendations were unfavourable. In other words, the application was premature as the regulations provided further avenues of appeal. [9] We are all of the view there is no tenable basis for interfering with the Chambers judge’s disposition of the application. The remedies prayed for are discretionary by nature, the writs being writs of grace (see Harelkin v. University of Regina[2]). Thus the appellant must demonstrate the Chambers judge abused his discretion. We are not persuaded he did so. No error of principal, nor any misapprehension of or disregard for any material fact has been demonstrated. Nor did the Chambers judge fail to act judicially and the result is not so plainly wrong as to warrant intervention (see Rimmer v.Adshead[3]). [10] Further, given the long delay, including the delay in seeking recourse attributable to the appellant we would not be prepared to grant the relief in any event. We note, for example, the appellant’s initial concern was that of alleged bias, and the issue of jurisdiction, i.e. the proceedings being disciplinary in nature and not academic, was not raised until the application below. We agree the application is premature as there are other avenues of appeal open to the appellant as provided for in the regulations, (Part provides as follows: ACTIONS AND ALTERNATIVES FOR THE APPEAL COMMITTEE The Appeal Committee will meet and determine the procedure which the Committee intends to follow. This procedure shall be communicated to the resident. The Appeal Committee will determine if the resident has received due process and if the disciplinary penalty is appropriate in the circumstances of the case. If the Appeal Committee decides that the decision should be reversed or altered, they will ask the Residency Training Committee to do so. If the Program Director does not see fit to do so, the decision shall be referred to the Dean of Medicine who will review the evidence and render decision. If the decision made by the College of Medicine is dissatisfactory to the resident, he/she may appeal to the Joint Senate-Council Board for Student Appeals. January 1995 The proceedings should not be allowed to be fragmented and should be allowed to run their course so the court has complete record from the tribunals below (see Jones v. College of Physicians and Surgeons (Sask.);[4] R. v. Manjanatha (C.P.),[5] and R. v. DeSousa.[6] Further where there is right of appeal certiorari should not be granted except in exceptional circumstances (see Re Wilfong[7] and Harelkin[8]). [11] The appellant, as a preliminary matter, made an application to adduce fresh evidence consisting of a letter received by the appellant from the Investigating Committee describing how the committee intended to proceed. We dealt with this application in the usual manner, but are of the view the material does not meet the test for the admission of fresh evidence upon appeal (see Maitland v. Drozda[9]) and it simply re-states what was already in issue below and found to have had no effect (see Gaetz vs. Gaetz[10]). The appellant’s application is therefore dismissed. [12] The appeal is therefore dismissed with costs on double Column V. DATED at the City of Regina, in the Province of Saskatchewan, this 5th day of June, A.D. 2002. concur Cameron J.A. concur Sherstobitoff J.A. [1](1969), 1968 CanLII 524 (SK CA), D.L.R. (3d) 721. [2]1979 CanLII 18 (SCC), [1979] S.C.R. 561. [3]2002 SKCA 12 (CanLII), [2002] W.W.R. 119; [2002] S.J. No. 22, QL. [4](1996), 1996 CanLII 5045 (SK CA), 148 Sask. R. 74. [5](1994), 1994 CanLII 4645 (SK CA), 125 Sask. R. 73. [6]1992 CanLII 80 (SCC), [1992] S.C.R. 944. [7](1962) 1962 CanLII 289 (SK CA), 37 W.W.R. 612 at 615. [8](unreported Sask. C.A. June 22, 1977); [1977] S.J. No. 348 QL. [9](1983), 1983 CanLII 2050 (SK CA), 22 Sask. R. 1. [10](1996), 1996 CanLII 5033 (SK CA), 144 Sask. R. 268 at 271.

The appellant was unsuccessful in Queen's Bench in having his suspension and probation as a medical resident rescinded or to prohibit the Investigation Committee, which met on approximately seven occasions and interviewed seven witnesses, from taking further action. The Chambers judge refused to grant relief, finding the issues to be academic in nature and within the exclusive jurisdiction of the University, but ruled his supervisor should be removed from the Committee because of an apprehension of bias. The appellant applied to adduce fresh evidence consisting of a letter from the Investigating Committee describing how it intended to proceed. The appellant argued the matter was disciplinary, not academic, and as it can ultimately result in his dismissal, he is entitled to procedural fairness, including a fair hearing, the right to cross-examination of witnesses, to call his own witnesses, to active legal representation and to full disclosure. He argued all committee members, except the union representative, should be excluded by reason of bias. HELD: The appeal was dismissed with costs on double Column V. 1)The material did not meet the test for the admission of fresh evidence. It simply restated what was at issue and found to have had no effect. 2)There was no tenable basis for interfering. The remedies are discretionary. 3)The Court was not prepared to grant the relief in any event, given the long delay in seeking recourse. The initial concern was bias and jurisdiction. The issue of whether the proceedings were academic or disciplinary was not raised until the application below. 4)The application was premature as there are other avenues of appeal provided in the regulations. Proceedings should not be allowed to be fragmented and should be allowed to run their course so the court has a complete record from the tribunals below. Certiorari should not be granted where there is a right of appeal, except in exceptional circumstances.

c_2002skca74.txt

J. QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2009 SKQB 36 Date: 2009 01 20 Docket: F.L.D. 282 OF 2008 Judicial Centre: Regina BETWEEN: MICHAEL LUND and LESLY BARABONOFF Counsel: Kara-Dawn Jordan for the petitioner Jeffrey Brick for the respondent FIAT OTTENBREIT J. January 20, 2009 [1] This is an application to determine interim parenting for the child, Kaira, who is 2 ½ years old. There is conflicting affidavit evidence respecting the nature and extent of the father’s parenting duties while the parties lived together. The mother, Lesly, says that the father, Mike, had limited involvement with the child. Mike says he was involved in feeding, teaching and dressing Kaira and shared other parental duties. [2] Lesly left with Kaira to go to Victoria after the separation and by consent court order returned Kaira to Saskatchewan. There has been further order allowing parenting time to both parents. The parties have been unable to resolve the issues of parenting and relocation to Victoria at pre-trial conference. [3] Lesly has chosen to move to Victoria to attend school. She applies as the primary parent to have the child with her. The issues of parenting and mobility are clearly unresolved and may go to trial. [4] Mike would like Kaira to remain in Saskatchewan and have regular contact with each parent alternating each week. He argues that relocating Kaira is inappropriate given the issues and would not give proper emphasis to the status quo. Counsel for Mike cites Gilbert v. Wildman 2006 SKQB 291 (CanLII) and Thomas v. Lavoie 2008 SKQB 93 (CanLII) as cases where mobility was not allowed. She distinguishes the mother’s cases Stomp v. Cadman 2008 SKQB 293 (CanLII) and Shiplack v. Shiplack 2008 SKQB 254 (CanLII). She argues that the child has strong bond with Mike and his family. Additionally she points out that Lesly’s support network is in Regina and not in Victoria. [5] Counsel for Lesly candidly admits that there will be trial respecting Kaira’s residence. He argues that the status quo is the attachment the child has with the primary parent and that is Lesly. He points out that Mike initially only provided generalities respecting his parenting and only provided detail in response to Lesly’s affidavit. He argues that Mike does not have the time to parent given his schedule. Lesly’s school course will be months long. He argues that for those months or at least until trial, Kaira should reside with Lesley although he acknowledges Mike should see Kaira every third month. He proposes sharing the transportation costs. [6] Mobility issues are to be determined by reference to principles in Gordon v. Goertz (1996), 1996 CanLII 191 (SCC), 141 Sask. R. 241; (1996), 134 D.L.R. (4th) 321, which are well known and which are germane to the case. Both Shiplack, supra and Stomp, supra are in my view exceptions to the general approach that the status quo is to be maintained unless there are compelling reasons not to do so as were found in both cases. The dicta of Wilson J. in paragraph 19 of Shiplack, supra is instructive re these kind of cases. There is no compelling reason to allow mobility in this case merely because the mother has made some unilateral decisions about her education. [7] The residence status quo in this case is Regina and Kaira shall, pending trial, reside in Regina. I cannot determine on conflicting affidavits what the primary parent status quo is. [8] Lesly has chosen to take school in Victoria but that does not mean even if Lesly is the primary parent that the child should, pending trial, live with her. Nevertheless, Kaira will need maximum contact with both parents. It is in the best interest of Kaira that she see both parents. However, because of the distance, frequent changes in parenting may not be possible. There was similar course in Saskatoon that Lesly could have taken which would have made more frequent changes possible but her affidavit indicates that she thinks the course was inferior to the one she is taking in Victoria. [9] There will be an order that pending trial and until further order, Kaira shall be parented by Mike from January 20, 2009 for a period of 28 days and thereafter by Lesly for a period of 28 days and such parenting will continue to alternate for each 28 day period thereafter until further order. [10] Kaira shall, for the purposes of this parenting, be returned to Regina for Mike to parent by 9:00 p.m. of the 28th day of Lesly’s parenting period. Mike shall provide Kaira to Lesly by 9:30 a.m. of the 28th day of his parenting if Lesly wants to parent in Regina or to her parents for the purposes of transporting Kaira to Victoria if Lesly wants to parent in Victoria. [11] The costs of transporting Kaira should, in my view, be borne primarily by Lesly. She has made choices which have resulted in greater expense to insure that Kaira sees both parents. Accordingly, the cost of transporting Kaira to and from Victoria shall be borne by Lesly. However it is fair that Mike contribute something to this cost. Mike shall pay to Lesly, for each occasion that Kaira travels to Victoria for parenting time with Lesly, the sum of $150.00 but only for the trip from Regina to Victoria. Lesly shall advise Mike if Kaira will on each occasion be transported to Victoria for parenting time with her. For the purpose of Lesly’s parenting time, one or both of Lesly’s parents may transport Kaira. [12] During the time that Kaira is being parented by each parent, the other parent shall have telephone access to Kaira every second day at 7:00 p.m. Regina time during Mike’s parenting time and 7:00 p.m. Victoria time during Lesly’s parenting time as the case may be and each parent shall provide to the other telephone numbers where Kaira may be reached and shall make Kaira available for such telephone access. [13] Costs shall be costs in the cause. J. R.K. OTTENBREIT

FIAT: This is an application to determine interim parenting for the child, Kaira, who is 2.5 years old. There is conflicting information about the nature and extent of the petitioner father's parenting duties. The respondent has chosen to move to Victoria to attend school. She applies as the primary parent to have the child go with her. The petitioner would like Kaira to remain in Saskatchewan and have regular contact with each parent on alternating weeks. HELD: 1) The residence status quo in this case is Regina and Kaira shall, pending trial, reside in Regina. The Court cannot determine on conflicting affidavits what the primary parent status quo is. 2) It is in the best interest that the child see both parents. There was a similar course in Saskatoon that the respondent could have taken which would have made more frequent changes possible, but her affidavit indicates she thinks the Saskatoon course is inferior to the one she is taking in Victoria. 3) Pending trial the child shall be parented by the petitioner for 28 days, and thereafter by the respondent for 28 days and such parenting shall continue to alternate for each 28 day period thereafter until further order. The costs of transportation shall be born primarily by the respondent.

2009skqb36.txt

J. 2004 SKQB 105 Q.B.G. A.D. 1999 No. 1431 J.C. S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: BANISTER PIPELINES INC. PLAINTIFF (DEFENDANT BY COUNTERCLAIM) and THE CROSSING COMPANY DEFENDANT (PLAINTIFF BY COUNTERCLAIM) W.J. Kenny for the plaintiff (respondent) C.L. Carlson for the defendant (applicant) FIAT GEREIN C.J.Q.B. March 17, 2004 [1] This is an application wherein the defendant, The Crossing Company Inc., seeks an order requiring the plaintiff, Banister Pipelines Inc., to provide security for costs in the amount of $50,000.00. I have decided that an order should be made, but in the lesser amount of $18,000.00. THE BACKGROUND FACTS [2] Both parties are Alberta corporations and are extra-provincially registered to carry on business in Saskatchewan. As it happens, neither is presently active in this province. [3] In April, 1998, the plaintiff contracted to build pipeline for Interprovincial Pipelines Inc. In carrying out that contract the plaintiff engaged the defendant, as sub-contractor, to construct directionally drilled crossing under the South Saskatchewan River. The defendant embarked upon the project, but after time ceased the work. [4] The plaintiff claims that the defendant abandoned the project. On the other hand, the defendant claims that the plaintiff failed to rectify certain sub-soil conditions which were frustrating the work and eventually directed the defendant to vacate the site. Subsequently, the plaintiff engaged different sub-contractor to complete the work. THE COURT PROCEEDINGS [5] Two actions have been brought in Saskatchewan. The first (Q.B. 1431/99), which is this one, was commenced by the plaintiff against the defendant on June 15, 1999. This is claim for damages in the amount of $3,476,610.00 and alleges failure by the defendant to fulfill the contact. Within this action, on March 15, 2000, the defendant filed defence and counterclaim. The latter asserts claim for $2,150,495.65 as compensation for services and materials provided to the plaintiff pursuant to the contract. [6] The second action (Q.B. 1438/99) is builders’ lien claim brought by the defendant against the plaintiff. That action was commenced on June 16, 1999, and is claim for $2,150,495.65 for the supplying of services and materials. The amount is identical to that claimed in the counterclaim within the action commenced one day earlier. [7] There is an understanding between the parties that the two actions will be tried together. This makes good sense and will save considerable cost. [8] There has been third proceeding, although not an action. On January 26, 1999, the defendant caused builders’ lien to be registered against certain lands respecting work done. In consequence, the plaintiff obtained an ex parte order vacating the lien upon the filing of bond in this court in the amount of $2,200,495.65 and included in that amount is security for costs of $50,000.00. By subsequent order that amount was reduced to $1,460,246.10. That bond is still in place. [9] To complete the picture, there is third action. It was commenced by the defendant against the plaintiff in Edmonton, Alberta. The claim was for the supply of services and materials respecting failed attempt to construct crossing under the North Saskatchewan River. The amount claimed was $2,734,660.27. The plaintiff counterclaimed for $2,547,038.10. Judgment was granted in the amount of the defendant’s claim and the counterclaim was dismissed. Costs were awarded to the defendant in the amount of $468,728.79. The judgment has been paid pursuant to bond posted in the action and the costs have also been paid. The judgment is presently under appeal. [10] Finally, it is noted that by order dated December 12, 1999, Pricewaterhouse Coopers Inc. was appointed as Receiver for the plaintiff. They have since been appointed as Trustee in Bankruptcy. THE SUBMISSIONS [11] On behalf of the defendant, it is submitted that this is proper case to order security for costs. Counsel points to the fact that the plaintiff is not resident in Saskatchewan; has insufficient assets in Canada to pay costs if so ordered; and the plaintiff’s claim lacks merit. At the same time it is submitted that the application should not be denied on the basis of delay or the plaintiff’s impecuniousity. [12] Counsel for the plaintiff submits that the requested order should be refused for three reasons. (1) That the presence of the counterclaim prohibits an order for security for costs. (2) That security has already been provided pursuant to The Builders’ Lien Act, S.S., c. B-7.1 and this court lacks jurisdiction to order more security. (3) That the plaintiff has meritorious claim. PRACTICE RULES AND LEGISLATION [13] The authority to order security for costs is contained in Queen’s Bench Rule 537. Criteria which may be considered are set out in Rules 538 and 539. The former speaks to ordering security for costs while the latter speaks to denying such an order. 537(1) Subject to the express provisions of any statute or regulation, and notwithstanding any other rule, the court (a) has discretion respecting security for costs; and (b) may order security for costs against any party to proceeding, including party who is ordinarily resident in Saskatchewan. (2) The court has discretion to determine the amount and form of security for costs. 538(1) In exercising its discretion under rule 537, the court may consider any relevant matter, including the following factors that may support the granting of an order for security for costs; (a) the party is ordinarily resident outside Saskatchewan; (b) the party is involved in another pending proceeding for essentially the same cause; (c) the party has failed to pay costs as ordered in the same or another proceeding; (d) the party is: (i) corporation, an unincorporated entity or nominal party; and (ii) there is good reason to believe that the party would have insufficient assets in Canada to pay the costs of other parties to the proceeding if ordered to do so; and (e) there is good reason to believe that: (i) the pleadings or position of the party in the proceedings are without merit, and (ii) the party would have insufficient assets in Canada to pay the costs of other parties to the proceedings if ordered to do so. (2) In this rule and in rule 539, “party” means the party against whom an order for security for costs is sought. 539 In exercising its discretion under rule 537, the court may consider any relevant matter, including the following factors that may support the denial of an order for security for costs: (a) the party has disclosed sufficient assets in Canada that would be available to pay the costs of other parties to the proceeding if ordered to do so; (b) the party has demonstrated impecuniousness; (c) there is good reason to believe that the pleadings or position of the party in the proceeding have merit; and (d) the delay in bringing the application for security for costs has prejudiced the party. [14] The discretion of the court is very broad, but not unfettered. It may be constrained by express statutory provisions. It is submitted on behalf of the plaintiff that The Builders’ Lien Act, S.S., c. B-7.1 is what governs and reliance is placed upon s. 56(1) of the Act. It is said that this section takes precedence over Queen’s Bench Rule 537. 56(1) Any person may apply ex parte to the court for an order vacating any registered claim of lien or written notice of lien, and where the person making the application pays into court, or posts security in an amount equal to, the total of: (a) the full amount claimed as owing in any registered claim of lien or written notice of lien to be vacated; and (b) The lesser of $50,000 or 25% of the amount described in clause (a), as security for costs; the court shall order that the registration of the claim of lien or written notice of lien be vacated and give directions for service of the order on the person whose registered claim of lien or written notice of lien is ordered to be vacated. (2) Any person may apply to the court, on notice to such persons as the court may direct, for an order vacating registered claim of lien or written notice of lien, and where an application is made, the court may order that the registration of the claim of lien or written notice of lien be vacated, on payment into court or posting of security in an amount that the court considers reasonable in the circumstances. will return to this subject later. ENTITLEMENT TO SECURITY [15] The defendant has proven facts which demonstrate the existence of several of the criteria listed in Rule 538. On the other hand, the plaintiff has failed to establish any of the situations listed in Rule 539. It follows that the requested order should be granted, unless there is some valid juridical reason to do otherwise. THE COUNTERCLAIM [16] The primary submission on behalf of the plaintiff is that the defendant’s counterclaim precludes it from obtaining an order for security for costs. Support for this submission is to be found in these remarks of Madam Justice Fraser (now Chief Justice) in Specialty Steels v. Suncor Inc. (1997), A.J. No. 276 at p. 5. 12. The Athabasca Realty case dealt with the application of defendant by counterclaim for costs in respect of counterclaim by non-resident plaintiff by counterclaim (defendant). Nevertheless as was evidenced by the decision in Neck, the principle involved in respect of an application by defendant who had advanced counterclaim for security for costs in respect of the plaintiff’s claim is the same. Assuming that the counterclaim arises out of the transaction which gives rise to the plaintiff’s claim, requirement that the plaintiff give security for the costs of the defendant in defending the plaintiff’s claim would be to indirectly require the plaintiff to give security for the costs of the plaintiff by counterclaim (defendant) of prosecuting its counterclaim. As stated by Master Funduk, it would require the plaintiff to give security for costs as condition of it being allowed to defend the action by the plaintiff by counterclaim (defendant) and of having all the issues between those parties arising from the same transaction dealt with together. have also been referred to these remarks of Mr. Justice Baynton in Zip Transfer Ltd. v. Saskatchewan Power Corp. et al., 2000 SKQB 132 (CanLII), [2001] 193 S.R. 318 at p. 320. [6] In the case before me, had the respondent raised its claim by way of counterclaims to the other two actions, it is unlikely that an application for security for costs by either of the plaintiffs in those actions would have been successful. The matter raised by the respondent is certainly not wholly distinct from the claims of the plaintiffs. All matters raised in each of the three actions arise out of the same motor vehicle accident and include all the parties involved in that accident. At least insofar as Saskatchewan Power Corporation is concerned, the matter is raised by the respondent in many respects as defence. As well, if the respondent is successful in full or in part in its claim against the applicant as defendant, it would be entitled to set this off against anything the applicant recovered from it in his claim as plaintiff. [17] In my opinion, the remarks must be read in the context of their factual situations and within the context of existing jurisprudence considered as whole. When this is done, do not believe that either the jurisprudence or the remarks should be taken as enunciating an absolute prohibition. [18] go back to what see as the seminal case; namely, Neck v. Taylor, [1893] Q.B. 560 (C.A.). In that case, the Divisional Court had refused to order security for costs and in upholding that ruling Lord Esher, M.R. said this at p. 562. The rule laid down by the cases seems to be as follows. Where the counter-claim is put forward in respect of matter wholly distinct from the claim, and the person putting it forward is foreigner resident out of the jurisdiction, the case may be treated as if that person were plaintiff, and only plaintiff, and an order for security for costs may be made accordingly, in the absence of anything to the contrary. Where, however, the counter-claim is not in respect of wholly distinct matter, but arises in respect of the same matter or transaction upon which the claim is founded, the Court will not, merely because the party counter-claiming is resident out of the jurisdiction, order security for costs; it will in that case consider whether the counter-claim is not in substance put forward as defence to the claim, whatever form in point of strict law and of pleading it may take, and if so, what under all the circumstances will be just and fair as between the parties; and will act accordingly. Therefore, the Court in that case will have discretion. It is clear to me in the present case that the counter-claim is not in respect of matter wholly distinct from and independent of that upon which the claim is based; on the contrary; it arises out of the very same transaction in respect of which the action is brought. It is, in reality, the defendant’s defence to the action, though, as matter of pleading, it is, and necessarily is, put forward by way of counter-claim. Under these circumstances, think that the Divisional Court had discretion in the matter, and see no reason for thinking that they exercised such discretion otherwise than rightly. It should be remembered that while there was counterclaim, it was the plaintiff in the main action who was seeking security for costs from the defendant in the main action. This is opposite to the situation in this case. [19] In my opinion, this can be extracted from the remarks of Lord Esher. If the subject matter of the counterclaim is wholly distinct from the claim, then security for costs may be ordered. If the subject matter of the counterclaim is not wholly distinct, the court will decide the true nature of the counterclaim and then exercise its discretion to do what is just and fair. In short, security for costs may be appropriate despite counterclaim. [20] read the decision in this way. Security for costs should not be ordered if it will deprive defendant of the opportunity to defend against claim. However, if that defendant, who is foreign resident, chooses to bring an unrelated claim as counterclaim, then he runs the risk of an order being made. This is because the order is made against him as plaintiff and as such does not bear upon his ability to defend the main action. Had the claim been brought in separate action an order would have been appropriate. Because the claim is asserted as counterclaim, that fact should not alter the result. If the counterclaim is essentially defence, the court has discretion. However, it will normally decline to order security for costs as it may impede the ability to defend against the claim. [21] In the case of Speciality Steels, (supra), reference was made to the decisions in Athabasca Realty Co. Ltd. v. Lafontaine et al. (1981), 1981 CanLII 1066 (AB QB), 30 A.R. 581 (M) and Junction Engineering Ltd. v. Gunner Industries Ltd. (1993), 143 A.R. 316 (M). In the first there is an extensive review of decisions which discuss the issue of ordering security for costs where there is counterclaim. It is important to recognize that in all of the cases the order was being sought against defendant (plaintiff by counterclaim). That is not the situation before me. In the second decision, Master Funduk made this statement at p. 319. [32] When there is claim and cross-claim arising from the same subject matter it might not be appropriate to require one party to post security; Athabasca Realty v. LaFontaine (1981), 1981 CanLII 1066 (AB QB), 30 A.R. 581 (M), at para. 6. He appears to accept that there is no absolute rule. This statement was quoted with approval in the Speciality Steels case at p. 3. [22] now refer to three Ontario decisions. The first is Ponderwood Realty Inc. v. Piller Investments Ltd. (1999), A.J. No. 275. In that case, plaintiff (defendant by counterclaim) was ordered to post security for the costs of the defendant (plaintiff by counterclaim). Mr. Justice Campbell considered the Alberta decisions and recited the remarks of Madam Justice Fraser and Master Funduk as quoted above. He then went on to say this at p. 4. In my view, there does not appear to be any difference between the law in Ontario and the law of Alberta on this issue and that in general terms the statement of Madam Justice Fraser is just as applicable to an Ontario case as an Alberta one. However, as with all such statements, they must be read in the context of specific facts to which they are applied such as the Speciality Steels situation. In that case, there could be no doubt concerning the interrelationship between the two different causes of action, one for non-payment, the other for damages from alleged defects in the materials supplied rendering payment unenforceable and the need for trial on all these issues. Both the Alberta cases relied on by Madam Justice Fraser and the commentary to the Alberta Rules of Court recognize that the general rule that "no security will be awarded where the claim and counterclaim are related is not an absolute bar". See Stevenson and Cote Civil Procedure Guide (1996), vol. 2, p. 1909. note that in Ontario the references to the section for security for costs where there is counterclaim, involves situations in which it is sought to obtain security for costs from defendant who is plaintiff by counterclaim not plaintiff who is defendant by counterclaim. See Holmsted and Watson (1996), vol. 4, p. 56-16. Indeed, security from defendant who is plaintiff by counterclaim forms the basis for much of the Alberta jurisprudence and is based on the English case of Neck v. Taylor, [1983] Q.B. 560 on which both Ontario and Alberta cases are based. [23] Likewise, the presence of counterclaim did not preclude an order that plaintiff (defendant by counterclaim) post security for costs in the cases of Canadian Accelerating Trade Inc. v. Goldline Telemanagement Inc. (2002), O.J. No. 1781 and Lansink, Best McIver Ltd. v. Marlock (2003), O.J. No. 1245. [24] The only instance when the subject was discussed in Saskatchewan was in Zip Transfer Ltd., (supra). have earlier quoted the remarks which counsel for the plaintiff suggests provide some support for his position. concede there is some merit to the position if the remarks are read in isolation. However, it should be noted that while the application for security for costs was dismissed, it was not done so for the reason that there was counterclaim. Furthermore, the remarks quoted earlier were preceded by these comments which suggest discretion rather than an absolute rule. Likewise if the counterclaim is wholly distinct from the claim, the defendant may be treated as plaintiff and required to give security for costs. But if the counterclaim arises in respect of the same matter, the court will do what is just and fair in the circumstances. Griffin v. Ruller (1906), W.L.R. 12; Terr. L.R. 119 (S.C.). [25] In the end, Specialty Steels, (supra), pretty much stands alone in its position of an absolute prohibition. Yet even within that decision there appears to be some flexibility. Consideration was given to ordering security which would be confined to the defence of the main claim, although this was rejected as unworkable. [26] From my reading of the law, it is my opinion that the presence of counterclaim doe not necessarily or automatically prohibit the granting of an order for security for costs. Rather, it is factor to be considered, albeit compelling one. However, the over-riding principle is that court must do that which is fair and just. [27] In this instance, the counterclaim is not wholly distinct claim. It arises in respect of the same matter and transaction as the claim proper. That being so, must look to the overall situation in order to decide what is just and fair. [28] In this instance, the defendant has commenced another separate and distinct action (Q.B. 1438/99) wherein $50,000.00 is posted as security for costs. That was the result of statutory regime, but it is unlikely anything more would be ordered as it may adversely effect the plaintiff’s opportunity to defend the action. That likely result cannot be defeated by simply re-creating the claim within this action. [29] Yet it must be recognized that the defendant is called upon to defend the within action brought by the plaintiff. This is case where the plaintiff not only is non-resident party, but there is real likelihood that it will be unable to pay costs if it is unsuccessful. The defendant should not have to bear the whole of that risk. [30] As see it, an order requiring security for costs will not have an adverse effect on the plaintiff’s ability to defend against the counterclaim if the security is restricted to the costs for the defence of the claim proper. This approach does not result in the plaintiff funding the defendant’s counterclaim, although it can be said that this is being done through the posting of security in the other action. In any event, it is my conclusion that the presence of the counterclaim, in the circumstances of this case, does not preclude an order for security for costs. [31] There is further consideration. The defendant commenced the builders’ lien action, which is the other action, long before filing defence and counterclaim within this action. Had the counterclaim not been filed, an order for security for costs as requested would have been appropriate. It is somewhat artificial to now deny that relief because of the counterclaim which has the effect of facilitating disposition of all matters within one proceeding. THE BUILDERS’ LIEN ACT [32] The plaintiff applied ex parte under s. 56(1) of The Builders’ Lien Act, (supra), to have the defendant’s lien vacated. The application was granted, but the plaintiff was required to post security for costs in the amount of $50,000.00. It is now argued that this court has no jurisdiction to do anything more. [33] Section 56(1) creates discrete process to vacate liens. To facilitate that process, it provides an arbitrary method to substitute trust fund in this court in place of the lien. The amount in that trust fund is based on the amount of the lien plus sum for costs which is calculated as percentage of the lien to maximum of $50,000.00. [34] The section governs only an application to vacate lien and only if the application is made ex parte. This is made very clear when one reads s. 56(2) which provides for vacating lien on notice. In that instance the court fixes the amount of the security. Accordingly, I conclude that the Act does not impede the jurisdiction of this court to deal with the application of the defendant. MERITORIOUS CLAIM [35] It is submitted that the order should be denied because the plaintiff fits within Queens’ Bench Rule 539(a) which provides: 539 In exercising its discretion under rule 537, the court may consider any relevant matter, including the following factors that may support the denial of an order for security for costs: (c) there is good reason to believe that the pleadings or position of the party in the proceeding have merit; Quite frankly, cannot assess with any confidence the merit of the plaintiff’s claim. This is so despite my reading of the pleadings and the material filed. [36] On the other hand, the result in the Alberta action raises concerns about the plaintiff’s claim. This is so despite the fact the judgment is under appeal and recognizing that the facts and evidence in this case may differ. However, on balance, am not persuaded Rule 539(c) should be invoked. LIABILITY OF PRICEWATERHOUSECOOPERS INC. [37] In the alternative, the defendant has asked for declaration that PricewaterhouseCoopers Inc. is liable for any award of costs that may be made against the plaintiff. Having decided as have respecting security for costs, there is no need to address this matter other than to say that no such declaration will be made. QUANTUM OF SECURITY [38] The defendant asks for an order requiring security in the amount of $50,000.00. The filed material contains pro forma bill of costs showing total costs of $139,900.00 made up of fees of $39,900.00 and disbursements of $100,000.00. [39] make two observations. The disbursements include $80,000.00 for expert costs There is no description of the expertise or purpose the experts will serve. It is simply number moved over from the Alberta action. am not prepared to allow anything for that. As well, the remaining disbursements of $20,000.00 are simply described as reporting services, conduct money, copying etc. accept that there will be such disbursements, but am not prepared to accept the amount, absent greater particulars. Rather, arbitrarily fix the amount at $12,000.00. [40] The second observation is that many of the costs will be related to the counterclaim. can’t be certain of the exact amount, but choose to err on the side of the plaintiff. Taking that approach, estimate 35% of the costs should be attributed to the plaintiff’s claim. Accordingly, I conclude that the security which should be posted is $18,000.00 for fees and disbursements. CONCLUSION [41] In the result, it is ordered as follows:(1) that the plaintiff, Banister Pipelines Inc., on or before April 30, 2004, shall deposit with this court to the credit of this action as security for costs the sum of $18,000.00; (2) that the security may take the form of cash monies, bond or letter of credit provided by recognized financial institution acceptable to counsel for the defendant; (3) that pending the posting of the security the claim of the plaintiff, Banister Pipelines Inc., shall be stayed; (4) that in the event the security is not posted within the specified time, application may be brought to have the claim of the plaintiff, Banister Pipelines Inc., dismissed with costs; (5) that the application to have PricewaterhouseCoopers Inc. declared liable for any award of costs is dismissed; and (6) that costs of this application will be in the cause.

FIAT: The defendant applied for security for costs in the amount of $50,000. HELD: The plaintiff was required to supply security for costs in the amount of $18,000. 1) The defendant proved facts, which demonstrated the existence of several of the criteria listed in Rule 538 of the Queen's Bench Rules of Court. The plaintiff failed to establish any of the situations listed in Rule 539. 2) The presence of a counterclaim does not necessarily or automatically prohibit the granting of an order for security for costs. Rather, it is a factor to be considered. In this case, the counterclaim was not a wholly distinct claim. It arises in respect of the same matter and transaction as the claim proper. 3) The defendant commenced the builders' lien action, long before filing a defence and counterclaim within this action. Had the counterclaim not been filed, an order for security for costs as requested would have been appropriate. It is somewhat artificial to now deny that relief because of the counterclaim, which has the effect of facilitating a disposition of all matters within one proceeding. 4) The plaintiff applied ex parte under s. 56(1) of The Builders' Lien Act to have the defendant's lien vacated. The application was granted, but the plaintiff was required to post security for costs in the amount of $50,000. The Builders' Lien Act does not impede the jurisdiction of this Court to deal with the application of the defendant.

b_2004skqb105.txt

LANE J.A. QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2005 SKQB 205 Date: 20050502 Docket: QBG2393/2001 Judicial Centre: Regina BETWEEN: N.M. PATERSON SONS LIMITED and DARYL LOWENBERG Counsel: M.W. Froese for the plaintiff G. Schmidt for the defendant JUDGMENT KYLE J. May 2, 2005 [1] The plaintiff is in the business of buying and selling grain. The defendant is farmer in the Grenfell, Saskatchewan, district. [2] After calling several times to determine the market price for flax the defendant agreed to sell to the plaintiff 300 metric tonnes of flax at a net price of $264.65 per tonne. This occurred on June 25, 2001. The defendant had previously delivered to the plaintiff’s elevator 2.043 tonnes of flax which were applied to the contract leaving 297.957 tonnes undelivered. That amount was to be delivered during the rest of June or July, 2001. [3] While the defendant at trial denies that such contract was reached, do not believe him. His demeanour was evasive and his subsequent behaviour was consistent with the contract having been reached. [4] The plaintiff’s agent, Rudy Lepp, was accompanied by his regional supervisor when the contract was made. Both testified. The quantity was substantial and it is not surprising that both have clear recollection of the event. The defendant stopped calling for prices after the contract was made. [5] During the week of July 2, 2001, the defendant attended at the plaintiff’s elevator in Grenfell, Saskatchewan, and acknowledged the terms of the contract. [6] When Mr. Lepp called the defendant on July 19 to advise that he had adequate space to take delivery of the flax he was told that the defendant would not deliver the flax. The market price had risen substantially by that time. [7] The defendant did not deliver the balance of the flax before August, 2001, or at any time and he is therefore in breach of the contract. [8] I find that a verbal contract was in force from the time the telephone conversation ended on June 25, 2001. Had the price dropped, the plaintiff would have sustained loss. As the price rose the plaintiff would have profited by $36.50 per tonne which is the loss of profit upon which the plaintiff’s claim is based multiplied by 297.957 and totals $10,875.43. [9] The plaintiff also claims an administrative fee of $10.00 per tonne which, while it may be customary, has not been proven or explained to my satisfaction and will not allow it. [10] The defendant has advanced the argument that The Sale of Goods Act, R.S.S. 1978, c. S-1, requires some writing to support a contract such as this, however, the part performance involving the sale under the contract of 2.043 tonnes is sufficient to meet the requirements of the Act. [11] document was created to record the sale but as it was never completed by the defendant who denies even receiving it, it has no effect on the contract. [12] The plaintiff will have judgment for the sum of $10,875.43, together with pre-judgment interest from August 1, 2001, and its costs of this action which was tried in summary way under Part 40 of the Rules of Court.

The plaintiff is in the business of buying and selling grain. The defendant is a farmer. After calling the plaintiff several times to determine the market price for flax, the defendant agreed to sell the plaintiff 300 metric tonnes of flax of which 297.957 tonnes remain undelivered. HELD: 1) The defendant did not deliver the balance of the flax before August, 2001 or at anytime and he is in breach of the contract. 2) The verbal contract was in force from the time of the telephone conversation ended in June 2001. As the price rose, the plaintiff would have profited by $36.50 per tonne. That is the loss of profit that the plaintiff's claim is based on multiplied by 297.957 and totals $10,875.43. 3) The part performance involving the sale under the contract of 2.043 tonnes is sufficient to meet the requirements of The Sale of Goods Act.

d_2005skqb205.txt

R.C. MILLS Court of Appeal for Saskatchewan Docket: CACV2719 Citation: 6517633 Canada Ltd. Knudsen Sons Muddy View Ranch Ltd., 2015 SKCA 77 Date: 2015-06-26 Between: 6517633 Canada Ltd. Appellant (Plaintiff) And Knudsen Sons Muddy View Ranch Ltd. Respondent (Defendant) Before: Richards C.J.S. (in Chambers) Disposition: Leave to appeal denied Written reasons by: The Honourable Chief Justice Richards On Appeal From: QBG 2655 of 2014, J.C. of Regina Heard: June 24, 2015 Counsel: Stan Sheppard for the Appellant Idowu Adetogun for the Respondent Richards C.J.S. [1] Stan Sheppard’s company, 6517633 Canada Ltd. [the Company], sued Knudsen Sons Muddy View Ranch Ltd. [Knudsen] for breaching contract whereby the Company had agreed to custom seed some 1,050 acres for Knudsen in exchange for fixed price of $19,293.75. [2] The essential facts are relatively straightforward. In broad-brush terms, they are as follows. The contract in question was signed on May 29, 2014. The next evening, Gene Knudsen telephoned Mr. Sheppard to ask if he was prepared to do only portion of the seeding and to “seed along side us”. Mr. Sheppard made it clear that he considered this to be breach of the contract but said he would think about it. At around noon the next day, May 31, Mr. Sheppard called Gene Knudsen back and said he was not prepared to comprise his position. Mr. Sheppard then discovered voicemail message from Gene Knudsen which Mr. Knudsen had left for him earlier in the day. In it, Mr. Knudsen had said, “[W]e got guy” and had told Mr. Sheppard not to move his equipment to the Knudsen land. [3] On June 2, after getting advice from his lawyer, Gene Knudsen called Mr. Sheppard and, as found by the trial judge, told Mr. Sheppard that the Company could seed until the job was done. At that point, between 70 and 100 acres had already been seeded. Mr. Sheppard rejected this invitation and sued Knudsen for $19,293.75, the value of the contract. [4] At the Small Claims trial, the judge found that Knudsen had breached the contract but that the Company had failed to mitigate its damages when, on June 2, it had declined the opportunity to finish seeding the Knudsen land. He awarded damages in the amount of only $1,575.00, being the profit that would have been lost in relation to the 70-100 acres which had already been seeded when Mr. Knudsen had extended his offer. [5] The Company appealed to the Court of Queen’s Bench, arguing that the trial decision was unreasonable and unsupported by the evidence and that the trial judge had improperly interfered with Mr. Sheppard’s cross-examination of Knudsen’s witnesses. The appeal judge rejected both lines of argument. He found that the trial judge’s findings of fact had been reasonable and that the trial judge had managed the trial fairly, patiently and efficiently. [6] The Company now seeks leave to appeal to this Court. Significantly, by virtue of s. 45 of The Small Claims Act, 1997, SS 1997, S-50.11, it may appeal only on question of law. Further, in order to obtain leave, the Company must establish that any question of law it wishes to raise is of both sufficient merit and of sufficient importance to warrant the attention of the Court. See: Rothmans, Benson Hedges Inc. Saskatchewan, 2002 SKCA 119 (CanLII), 227 Sask 121. [7] The Company has catalogue of complaints about the Queen’s Bench decision and about the way in which the judges in the courts below decided the matters before them. However, only a few of those complaints can properly be characterized as questions of “law”. Most are questions of “fact”. (In this regard, Mr. Sheppard appeared, during the course of his oral submissions, to believe that any error of any kind was necessarily an error of law. This is not the case. An error which involves the weighing or assessment of the evidence and the determination of what did or did not happen is an error of fact.) [8] The Company’s central complaint is that neither the appeal judge nor the trial judge understood the significance of exhibit P-5, drawing which shows the effect that water washes would have had on efforts to seed particular tract of land owned by Knudsen. The Company’s concern is that exhibit P-5 was not given sufficient effect or importance in determining whether the Company had mitigated its damages. But, if this was an error, it was an error of fact. The trial judge concluded that the Company could have seeded all but 70-100 acres of the Knudsen land but had chosen not to do so. This is conclusion that was open to him given the evidence as whole and see no possible error in the appeal judge’s decision to that effect. Further, regardless of what exhibit P-5 might show about the impact of water washes on seeding patterns, the trial judge found that the Company could have mitigated its losses by seeding the whole of the tract of land shown in P-5 plus the balance of the Knudsen property (save for 70-100 acres). The fact that water washes might have changed seeding patterns or made seeding more difficult did not entitle the Company to refuse to mitigate its losses. [9] The Company also says the trial judge erred in finding that Mr. Sheppard contacted the RCMP. This too is an issue of fact and, in any event, it has absolutely no bearing on the outcome of the case. [10] The Company does raise some issues which could be issues of law but they are all so lacking in merit as to not warrant granting leave to appeal in relation to them. Let me comment very briefly on the main points raised by the Company: (a) The trial judge refused to let Mr. Sheppard refer to exhibit P-5—this is not matter raised or dealt with by the appeal judge. As result, it does not relate to an error in his decision. In any event, have reviewed the relevant part of the transcript. The trial judge did no more than attempt to keep the trial moving forward and to require Mr. Sheppard to answer the question that he had been asked at that point. (b) The trial judge improperly cut off Mr. Sheppard’s cross-examination of Gene Knudsen—I agree with the appeal judge that the trial judge did nothing improper in this regard. He merely attempted to keep Mr. Sheppard on track in the presentation of his case and discouraged him from asking Mr. Knudsen the same question multiple times. (c) The trial judge diminished Mr. Sheppard and/or showed bias by using the phrase “people like you” to describe him and by asking if he thought mitigation meant sitting by the phone and waiting for people to respond to his ads—this issue was not raised with the appeal judge and he did not deal with it. Further, it is devoid of merit. Seen in context, the trial judge’s language was innocuous, created no unfairness and revealed no bias. [11] I conclude, therefore, that leave to appeal should not be granted to the Company. Knudsen is entitled to costs which, in the interest of expediency, set at $800. “Richards C.J.S.” Richards C.J.S.

The court denied leave to appeal. The applicant’s proposed grounds of appeal were not questions of law but of fact.

c_2015skca77.txt

J. IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: v. Ernst, 2005 NSPC 10 Date: (20050413) Docket: 1358368, 1358369, 1358370 Registry: Bridgewater v. Shea Patrick Samuel Ernst Defendant Judge: The Honourable Judge Crawford Heard: March 25, 2004, in Bridgewater, Nova Scotia August 19, 2004, in Bridgewater, Nova Scotia March 10, 2005, in Bridgewater, Nova Scotia Counsel: Josh Bryson Paul Scovil, for the Crown Robert Cragg, for the Defence By the Court: [1] Shea Patrick William Ernst is charged with possession of cannabis marijuana for the purpose of trafficking, with possession of cocaine for the purpose of trafficking, both under s. 5(2) of the Controlled Drugs and Substances Act and with possession of property obtained by crime under s. 355(b) of the Criminal Code. [2] The facts are as follows, from the Crown brief and my earlier decision on voir-dire in this matter: On August 13, 2003 Constable Smith and Corporal Campbell of the R.C.M.P. were on routine patrol in the area of the Government Wharf in Western Shore, Lunenburg County, Nova Scotia. There had been prior mischief complaints from the public regarding activity in the area and the officers approached several youth standing near vehicles on the wharf. One of the Constables was able to view through the window of one of the vehicles two open bottles of beer on the console. Upon asking who owned the vehicle young male came forward by the name of Josh Hyslop. The officers advised they were going to search the vehicle for liquor and then found in the rear hatch area of the vehicle cooler which contained more alcohol. In searching the front passenger area of the vehicle, the officer went to move knapsack on the floor to check for further liquor under the passenger seat. When he picked up the bag, it felt heavy and he further could feel what he thought might be bottles contained within. The backpack was opened upon which narcotics were found together with large amount of cash. Additionally in the front pocket was the wallet of the accused containing identification papers, licenses and personal papers. The backpack, while zipped up, was not secured by lock even though small lock was attached to the front of the backpack. [3] The defendant was not present on the wharf at the time of the investigation. [4] The police officers seized the backpack and at subsequent search at the police station it was found to contain: an unopened bottle of Olands Export Ale, 232 grams of cannabis marihuana, 63 grams of cocaine, bundles of cash containing $3000 in total, digital scale, the black wallet referred to above, as well as other items of personal nature such as an eyeglass case, toothbrush and deodorant. [5] Following my decision that the evidence seized was admissible against the defendant, the Crown continued its case by calling two further witnesses: Joshua Hyslop, and Cst. Paul Robinson. [6] Joshua Hyslop testified that on August 13, 2003 he picked the defendant up at the Lido in Chester, and they travelled by car to Western Shore “to have beer”. He said that the defendant handed him the cocaine which he placed in the vehicle console where the police later found it, and that the defendant had knapsack with him, which he placed at his feet in the front passenger seat. The defendant also brought Oland’s beer with him, which the two friends placed in the trunk of Hyslop’s car. [7] They drove to Western Shore, Lunenburg County, Nova Scotia, where they stopped in the area of the wharf to drink beer. There were other people on the wharf. Hyslop said that the police arrived less than minutes later, and at that point they both got out of the car and the defendant left. Hyslop did not know where the defendant went, but he left his beer and knapsack in the vehicle. He said they didn’t panic when they saw the police, but they did have beer in the car and he was also concerned about the cocaine he knew was there. [8] Hyslop testified that he did not know what was in the defendant’s knapsack that night, but he, Hyslop, did not put anything into or take anything out of it and he did not see anyone else touch it either. [9] Hyslop admitted that he owned two sets of scales found in his car and denied ownership of any of the other exhibits before the court. [10] In regard to the cocaine which he had placed in the console, he said that no money changed hands when the defendant passed it to him. He said that the defendant gave it to him to look at, and he assumed that they would discuss it later. [11] Cst. Paul Robinson of the R.C.M.P. was qualified by consent as an expert in the use, availability, distribution, packaging, sale, price and value of cocaine and cannabis marihuana and proceeds derived therefrom. He testified, based on his training and experience, that in his opinion the items seized by the police in this case were possessed for sale, not personal use. In regard to the more than 230 grams of marijuana found, he said that it would sell at $15 per gram at street level and would accordingly have value of $3480. The fact that it was found in an open motor vehicle in an open spot was also significant in his conclusion that the marijuana was possessed for sale, not personal use. As well, he stated that heavy user of marijuana might smoke joints day, so that this would represent 77 day supply for such heavy personal use. [12] In regard to the 63 grams of cocaine which were found, he stated that at the street value of $100.00 per gram, typical user would buy gram or half-gram at time. [13] The presence of the other items also were typical of what would be found in the possession of seller. The barley seed is used to keep cocaine from clumping with moisture, similar to putting rice in salt shaker. The three rolls of cash containing $1000 each is typical method used by drug traffickers, who not uncommonly have large amounts of cash, to hold their proceeds of sale. The lotto forms are commonly used to package cocaine for sale. Scales are used for weighing out the product. [14] The defence did not call evidence, but argued that this was circumstantial case in which the Crown had not proven beyond reasonable doubt that the only reasonable inference to be drawn was that the drugs and money were in the possession of the defendant. [15] Section 4(3) of the Criminal Code states: (3) For the purposes of this Act, (a) person has anything in possession when he has it in his personal possession or knowingly (i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and (b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them. [16] This section sets out three types of possession: personal, where person has something physically in his possession (s. 4(3)(a)); constructive possession, where he has it in the custody or control of another person (s. 4(3)(a)(i)) or where he is storing it in another place (s. 4(3)(a)(ii)); and joint possession, where two or more persons possess something together (s. 4(3)(b). [17] In proving constructive possession, the Crown must establish beyond reasonable doubt that the defendant had knowledge of the presence of the item in question, consented to its presence and had some measure of control over it. R. v. Terrence (1983), 1983 CanLII 51 (SCC), 47 N.R. 8; C.C.C. (3d) 193 (S.C.C.); R. v. Fraser (1985), 70 N.S.R. (2d) 82 (C.A.). [18] As for any other fact, any type of possession can be proven by direct evidence or circumstantial evidence, or combination of both. [19] Because the circumstances leading to an inference of possession vary so widely, each case turns on its own facts and other cases are useful for illustrative purposes at best; thus, although have reviewed the cases supplied by the defence, find no need to refer to them directly. Also, in this case there is not only circumstantial evidence but also the direct evidence of Mr. Hyslop, which accept. [20] Hyslop’s evidence establishes that the defendant handed the packages of cocaine found in the console of the motor vehicle to him, and that no money changed hands for it. I therefore find that that cocaine had been in the defendant’s personal possession up to the point of handing it to Hyslop and thereafter was in the joint possession of the defendant and Hyslop. [21] In regard to the drugs and money found in the knapsack, I note that the knapsack was in the personal possession of the defendant when he entered the motor vehicle, that no one else had any access to it from then until the police seized it. also note that the knapsack contained, in addition to the drugs and money, wallet containing the defendant’s identity papers, and other personal items. [22] In short, I am satisfied that the only reasonable inference to be drawn from all of the evidence before the court is not only that the knapsack was in the personal possession of the defendant, but that, because it contained items of such a personal nature, because the cocaine the defendant handed to Hyslop came from the knapsack, and because no one else had access to the knapsack, the defendant must have had knowledge of all of its contents and, for the same reasons, consented to their being there. It is also obvious that he had control of the bag and its contents until he left the motor vehicle. [23] find that the defendant was in possession of the marijuana and cocaine found in his knapsack. For the purpose of trafficking [24] The uncontroverted expert evidence of Cst. Robinson is that the amounts of both marijuana and cocaine and all of the circumstances here establish that the possession was for the purpose of trafficking and so find. Possession of property obtained by crime [25] For the reasons stated above, I find that the three rolls of cash in the amount of $1000 each were in the possession of the defendant and that, because they were in small denominations, found in the same bag as large amounts of cocaine and marijuana, rolled in the manner in which drug dealers commonly hold their cash, and as the defendant was a student the previous year and therefore unlikely to have large amounts of cash from any other source, the only reasonable inference here is that these rolls of cash were proceeds of drug trafficking. Hence find that the defendant had them in his possession knowing that they were obtained by the commission in Canada of an offence punishable by indictment. Conclusion [26] The defendant is guilty of all three charges before the court.

The defendant was charged with possession of cannabis marijuana and possession of cocaine, both for the purposes of trafficking. When the police approached a group of youth standing around vehicles, through one of the vehicle's open windows they noticed two open bottles of beer. While searching the vehicle for liquor, they moved a knapsack on the floor to check under the seat; the knapsack felt heavy and it felt like there were bottles inside it. The police opened the knapsack and found beer bottles, narcotics and a large amount of cash. In the front pocket of the knapsack, the police found the defendant's wallet with identification and personal papers. They also found packages of cocaine in the console of the vehicle. The defendant, who was not the owner of the vehicle, was not present when the search was conducted. The owner of the vehicle testified that he had picked up the defendant in his vehicle earlier in the day and that the defendant had placed the knapsack in the vehicle. When the police arrived, they both got out of the vehicle and the defendant left. The defence argued that the evidence was all circumstantial. The defendant was found guilty on all charges. The evidence established that the defendant had handed the packages of cocaine found in the console of the vehicle to the vehicle's owner; thus the cocaine was in the defendant's personal possession initially and thereafter in the defendant's and his friend's joint possession. The knapsack was in the personal possession of the defendant when he entered the vehicle and no one else had access to it until the police seized it; the only reasonable inference to be drawn was not only that the knapsack was in the personal possession of the defendant but that since it contained items of such a personal nature and since the cocaine handed to the friend had come from the knapsack and no one else has access to it, the defendant must have had knowledge of all its contents and consented to them being there. The three rolls of cash were also in the possession of the defendant and since they were in such small denominations and were found in the same bag as the large amounts of cocaine and marijuana, rolled in the manner in which drug dealers commonly hold their cash, and as the defendant was a student the previous year and therefore unlikely to have large amounts of cash from any other source, the only reasonable inference was that the rolls of cash were the proceeds of drug trafficking.

4_2005nspc10.txt

Date: 19971219 Docket: CA136437 NOVA SCOTIA COURT OF APPEAL Freeman, Bateman and Cromwell, JJ.A. BETWEEN: DEBORAH LYNN IRVING -and- PAUL GREGORY IRVING respondent Appeal Heard: November 12, 1997 Judgment Delivered: December 19, 1997 Edward T. Dunsworth for the appellant Michael I. King for the respondent THE COURT: The appeal is dismissed, per reasons for judgment of Bateman, J.A.; Freeman and Cromwell, JJ.A., concurring. J.A.: This is an appeal by Deborah Lynn Irving, from the granting of, uncontested, divorce and corollary relief judgments. INTRODUCTION: The parties were married October 20, 1990. They have two children, Paul Charles Irving, born October 1, 1991, and Alexander Gregory Irving, born May 9, 1993. The children are in the joint custody of the parties but reside on day-to-day basis in the former matrimonial home with their father. separation agreement, which was incorporated into the corollary relief judgment, was executed by the parties on November and 7, 1996. According to the divorce petition the parties separated on August 21, 1996. The divorce and corollary relief judgments were granted on February 11, 1997. The appellant asks this Court to set aside the judgments on the basis that the underlying separation agreement is "unconscionable and unduly harsh." In this regard she has applied to the court to admit fresh evidence bearing upon the circumstances leading up to the divorce. The regularity of the divorce proceeding itself is not in question. The appellant submits, however, that at the time of the signing of the agreement, which was clearly made in contemplation of the divorce, she was suffering from lingering depression which so affected her that she entered into an improvident agreement. FACTUAL BACKGROUND: In the appellant's affidavit, which was tendered as "fresh evidence", she says that at the time she signed the agreement she was living in the basement of the matrimonial home, being treated for depression by her psychiatrist, Dr. Gerald Gray, and on daily medication. She says that she was extremely unhappy in her marriage and had been diagnosed by her family doctor as suffering from depression in 1994. That doctor initially prescribed Prozac and later Effexor. She had first consulted Dr. Gray in January 1995, on referral from her family doctor, and has been on an antidepressant since then. She alleges that significant reason for her unhappiness was the controlling nature of the respondent during the marriage. The appellant says that she feared his violent temper. The parties separated in August of 1996 at the appellant's instigation. They agreed that they would share custody of the children, who remained in the matrimonial home with the respondent. She initially lived with female roommate, but when that arrangement collapsed, the appellant moved into separate quarters in the basement of the matrimonial home. Both parties were employed at this time the respondent as firefighter and the appellant at S.S. Keddy's. During this separation the appellant was involved with her current common law partner, but had sexual relations with the respondent, allegedly under pressure from him. On November the respondent gave the appellant the separation agreement which had been drafted by his lawyer. He made arrangements for her to meet with lawyer to witness her signature and gave her the required $20.00 referral fee. The appellant met with lawyer who offered to review the agreement for $50.00. Indeed, the lawyer recommended that the appellant have her review the agreement before signing. The appellant declined the offer to have the agreement reviewed. The appellant says that her family doctor had also advised her not to sign the agreement without legal advice, but that she did not have funds to retain lawyer. At some point, before or after the signing of the agreement, she contacted Legal Aid but could not get an appointment until February 18, 1997. The divorce and corollary relief judgments were granted on February 12, 1997. The appellant's affidavit contains additional information relevant to the value of the assets and the appellant's role in the marriage. The respondent has filed an affidavit in response. He says that the parties first separated on December 8, 1994, which was at the appellant's request. They entered into separation agreement at that time, the terms of which were dictated by the appellant, and the formal document drafted by lawyer. The respondent received independent legal advice. The appellant did not, but was advised by the husband's lawyer that she should do so. They reconciled and again separated on August 23, 1996. Together they prepared second separation agreement dated September 27, 1996. Neither had independent legal advice at that time. The only change of substance from the first to the second agreement was that the custody was to be joint rather than sole custody to the respondent. The November 7, 1996 agreement essentially embodied the terms of the September 27 agreement and was drafted by the respondent's current solicitor who was retained, at that point, only to prepare the agreement and not to advise the respondent. The respondent says that the appellant was pushing for speedy divorce because she was anxious to commence living with her current common law partner. The respondent details his perspective on the marriage that the appellant was immature and had difficulty adjusting to married life. The appellant had admitted extramarital affairs to the respondent. He denies treating her in controlling and dominant manner, or exhibiting violent temper. He says she displayed emotional ambivalence about whether she wanted to be married or single. He acknowledges that the appellant started taking the drug Effexor in the summer of 1995. The respondent's affidavit contains information about their respective roles in the marriage and the contribution of each to the assets. ISSUES: (i) Should the "new" evidence be admitted? (ii) Should the judgments be set aside? ANALYSIS: (i) The "Fresh Evidence": The appellant asks this court to receive as "fresh evidence" her affidavit detailing the circumstances of the marriage. The respondent opposes the introduction of the evidence but submits, in the alternative, that if it is received, his affidavit should be admitted as well. It is the respondent's position that the appellant has not met the test for the admission of the fresh evidence and that without that evidence her appeal must fail. He submits, as well, that even should the affidavit evidence be admitted, it is not sufficient to warrant success on the appeal. Civil Procedure Rule 62.22 provides: 62.22 (1) The Court on application of party may on special grounds authorize evidence to be given to the Court on the hearing of an appeal on any question of fact as it directs. (2) The evidence shall be taken by oral examination before the Court or by affidavit or deposition, as the Court directs. (3) The Court on an appeal may on special grounds inspect or view any place, property or thing. The test for the admission of fresh evidence in civil matters is set out in Thies v. Thies (1992), 1992 CanLII 2590 (NS CA), 110 N.S.R. (2d) 177, where Freeman, J.A. said at p.179: The test for admission of fresh evidence on appeals was set out by McIntyre, J., writing for the Supreme Court of Canada in v. Palmer (1979), 1979 CanLII (SCC), 30 N.R. 181; 50 C.C.C. (2d) 193 (S.C.C.): "(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 "(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." The procedure which should be followed when an application is made to court of appeal for the admission of fresh evidence is set out by McIntyre, J., again writing for the Supreme Court of Canada, in v. Neilson and Stolar (1988), 1988 CanLII 65 (SCC), 82 N.R. 280; 52 Man. (2d) 46; 40 C.C.C. (3d) at p. 8: “. the motion should be heard and, if not dismissed, judgment should be reserved and the appeal heard. In this way, the Court of Appeal has the opportunity to consider the question of fresh evidence against the whole background of the case and all the other evidence in the case. It is then in position where it can decide realistically whether the proffered evidence could reasonably have been expected to affect the result of the case. If, then, having heard the appeal, the court should be of the opinion that the evidence could not reasonably have affected the result, it would dismiss the application for the introduction of fresh evidence and proceed to the disposition of the appeal. On the other hand, if it should be of the view that the fresh evidence is of such nature and effect that, taken with the other evidence, it would be conclusive of the issues in the case, the Court of Appeal could dispose of the matter then and there. Where, however, the fresh evidence does not possess that decisive character which would allow an immediate disposition of the appeal but, nevertheless, has sufficient weight or probative force that if accepted by the trier of fact, when considered with the other evidence in the case, it might have altered the result at trial, the Court of Appeal should admit the proffered evidence and direct new trial where the evidence could be heard and the issues determined by the trier of fact." [Emphasis added] The appellant says that due to her mental condition, specifically depression leading up to the granting of the uncontested divorce, she could not have produced the relevant evidence at trial, thus meeting the first requirement of the Palmer test. She further submits that the "fresh" evidence that she tenders, because it bears upon the division of assets, is relevant, credible and might have affected the result, had there been trial. Counsel for the appellant originally asked that this Court (i) find that the separation agreement is unfair and unconscionable, (ii) set aside the Corollary relief judgment and (iii) refer the. matter to the Supreme Court for trial on the merits. At the time of the appeal hearing, however, he conceded that, should the appellant's argument prevail, we should remit the matter to the trial court for hearing on the legality of the agreement. preliminary issue is whether the test outlined in Thies, supra, is the appropriate one where there has been no adjudication on the merits by trial court. The Thies/Palmer test is clearly predicated upon the premise that there has been an evidentiary record established in the court below. In the usual "fresh evidence" application the appellant seeks leave of the Appeal Court to add to that record. In the words of McIntyre, J. from Stolar, supra, "the Court of Appeal has the opportunity to consider the question of fresh evidence against the whole background of the case and all the other evidence in the case." There is no evidentiary context here within which to consider the additional evidence. This is not an application to admit fresh evidence, but rather an application to this Court to receive additional evidence for the purpose of determining whether the judgments in the Court below should be vacated. In essence, we have before us an appeal from settlement agreement. could find no case law directly on point; however, there is some guidance to be drawn from the cases. In Makowka v. Anderson, [1988] B.C.J. No. 2568 (B.C.C.A.) mother and child were injured in motor vehicle accident. The individual claims by the mother and child against the Insurance Corporation of British Columbia were settled. The child's settlement required court approval under the provisions of the Infants Act. The settlement, although consented to by the insurer and the mother of the child, acting in her capacity of guardian ad litem for the infant, was opposed by the Public Trustee. The Chambers judge heard representations from the parties and the Public Trustee. The Public Trustee appealed the Chamber judge's approval of the infant's settlement. On that appeal the parties applied for the admission of fresh evidence. Lambert J. A. said, commencing at page 8: turn now to the application to lead fresh evidence. The circumstances raised by this application are dissimilar from those in the authorities to which we were referred where there has been trial of issues of fact based on oral evidence, or on expert evidence, or on affidavit evidence, that was intended to result in conclusive findings of fact. There, it is essential to the administration of justice that there should be regarded as finality at that stage, subject to the well-understood exceptions set out in the cases. That is so even if the interests of an infant are at stake in the trial. But where the issue before the chambers judge is not determination of the true facts, but an assessment of whether settlement that has been agreed upon by well instructed lawyers in the interests of their clients should be approved, and consideration of things like the possibility of delay and the benefits that immediate money will bring, the matter that was decided by the chambers judge is quite different. It is not decision on the evidence and the weighing of the evidence; it is decision on the best interests of the infant. So the purpose of the introduction of fresh evidence in this appeal is not to show that factual assessment of the previously existing evidence was incorrect, but it is to show that the best interests of the infant may not in fact have been carried through in the way that the chambers judge thought he was carrying them through. [Emphasis added] The circumstances here are not entirely analogous to those in Makowka, supra. There, the Chambers judge did adjudicate contest on the propriety of the settlement agreement, the approval of which was appealed. Lambert, J.A., however, recognized that it may be appropriate to apply different test when there have not been factual determinations by trial judge. In the situation before us, the judge granting the divorce and corollary relief judgments quite properly assumed that he had all relevant evidence before him, and that the parties agreed that the divorce be granted embodying the recent separation agreement. Accordingly, it was not necessary for him to receive vive voce evidence, nor weigh, as judge would in contested proceeding, the merits of the proposed arrangements. Lambert, J.A. continued in Makowka: Having regard to the best interests of the child and the good administration of justice, it would, in my opinion, in the words of the cases, be an affront to justice to insist on imposing this settlement on this infant if it was, when it was agreed upon, an unjust settlement. In my opinion, the introduction of the new evidence that we were asked to permit would allow the court which hears the appeal to assess as it wishes the interests of justice. For that reason, would allow the admission of the evidence that we were specifically asked to allow. [Emphasis added] In Cosper v. Cosper, (1995) 1995 CanLII 4238 (NS CA), 141 N.S.R. (2d) 344 (C.A.), the wife sought to set aside corollary relief judgment based upon the agreement of the parties reached after one half day of evidence at the contested divorce hearing. She maintained that her lawyer improperly pressured her into making the agreement. There, this Court, applying the Palmer test, as approved in Thies, supra, dismissed the application to admit fresh evidence. In Benoit v. Reid (1995), 1995 CanLII 6229 (NB CA), 18 R.F.L. (4th) 136 (C.A.), the New Brunswick Court of Appeal received new evidence on an appeal from trial judge's refusal to vary prior consent order, restricting the removal of the child of the marriage from the province. Bastarache, J.A., as he then was, said: [para 10] This Court obtained updated information from counsel, by way of documents filed in other courts and by way of affidavits. Although it is unusual to receive such additional information on appeal, believe that it is important to recognize that accurate information is essential in custody cases and that some flexibility is required in order to assess the best interests of the child. This approach was taken by L'Heureux-Dube, J. in C.A.S., Metro Toronto v. M(C.), 1994 CanLII 83 (SCC), [1994] S.C.R- 165, at 188 where she says: ... Although it might be more in line with usual procedures for court of appeal to base its conclusions on the evidence before the trial judge, the particular nature of appeals in child welfare legislation requires sufficiently flexible rule, where an accurate assessment of the present situation of the parties and the children, in particular, is of crucial importance. If Genereux, supra, has enlarged the scope of the admission of fresh evidence on appeal, it has done so, in the present case at least, with regard to the final arm of the Stolar test, that is, whether the fresh evidence may affect the result of the appeal when considered with the other evidence. If that is so, and the fact that the admission of up-to-date evidence is essential in cases such as the one at hand, Genereux, supra, should be applied in cases determining the welfare of children. In Benoit, supra some time had elapsed between the original proceeding and the hearing of the appeal. The information before the trial judge had been sketchy. In addition, since the trial, there had been change in the child's residence and Community Services had become involved with the family. The information received on appeal was, therefore, to update the court on circumstances as they existed at the time of the appeal hearing. Again, the situation is not strictly analogous to that before us, but the Court of Appeal does recognize that in certain circumstances, the traditional test may not be appropriate, particularly where the welfare of children is involved. This Court, in Children's Aid Society of Halifax v. C.M. et al. (1995), 1995 CanLII 7522 (NS CA), 145 N.S.R. (2d) 161 and Children's Aid Society of Cape Breton v. S.G. (1995), 1995 CanLII 7516 (NS CA), 142 N.S.R. (2d) 57 has recognized that the Palmer test for the admission of fresh evidence applies "in modified form" to child welfare proceedings. This is particularly so when the evidence relates primarily to events occurring after the order of the trial judge. This, however, is not child welfare proceeding. We are advised by counsel that the matter of the custody of the children, and, in particular, their day to day care arrangements is presently before the Supreme Court on variation application. The separation agreement, which was incorporated into the corollary relief judgment, provides for joint custody, with no particulars as to care and control. The respondent's affidavit in support of the granting of the judgments states that the children have resided with him on day to day basis since the separation. Even should the appellant successfully challenge the separation agreement, the arrangements regarding the children must be reviewed taking into account the status quo as it has developed since the separation. That review process is currently underway. This appeal, while it indirectly concerns the custody of the children of the marriage, is primarily focused upon the division of assets between the parties. Drawing upon the comments in cases such as Makowka and Benoit, am satisfied that in these circumstances, application of the Palmer test is neither appropriate nor workable. The purpose of the proffered evidence here is to enable this Court to determine whether the appellant should have an opportunity, in new proceeding in the trial court, to attack the validity of the separation agreement. It is, in my view, impossible for us to do justice to that task without receiving and considering the affidavit evidence, providing that we find the evidence to be relevant and reasonably capable of belief. am satisfied that the affidavit evidence tendered by both parties is relevant to the issue before us and is reasonably capable of belief and, accordingly, that it should be received and considered. (ii) The Merits: When seeking to set aside default judgment, the applicant must satisfy the Court that he/she has good defence on the merits (a substantial issue to be tried) and that he/she has reasonable excuse for not filing the defence on time. (See, for example, Marissink v. Kold-Pack Inc., et al. (1993), 125 N.S.R. (2d) 204 Chipman J.A.) The appellant having entered into settlement of the issues in contemplation of the divorce proceeding, the test applied here should, in my view, be somewhat more onerous than that required to set aside default judgment. Where legal action has been settled, and, in particular, where the settlement has formed the basis of court order, party should not be permitted to resile from that bargain save in exceptional circumstances. would require that the appellant demonstrate: (i) that she has reasonable excuse for failing to challenge the separation agreement, upon being served with the divorce documents, and (ii) that she has strong, prima facie case that the agreement is unconscionable or unduly harsh. (iii) Failure to Contest the Divorce Proceeding: Many of the background facts are not in dispute. The parties dated for about year before entering into common law relationship in October of 1990. At that time they resided in the respondent's house in Dartmouth. They lived together for six months before marrying. During the marriage the appellant had income through employment or unemployment insurance. They moved to new home, built by the respondent. The equity from the house that the respondent had owned before marriage went into the second house. The appellant was unhappy in the marriage. The parties separated for about three months in the late fall of 1994, reconciling in January of 1995. They separated again in August of 1996 with the appellant maintaining separate accommodation until October. The separation continued; however, the appellant moved into the basement of the matrimonial home. During the separation they shared time with the children equally. The appellant was served with the notice of petition and petition for divorce at the offices of the respondent's solicitor on December 13, 1996. The appellant moved from the basement of the matrimonial home on January 6, 1997. The appellant did not receive legal advice before signing the final separation agreement. That the appellant was encountering emotional distress during the marriage is not in dispute. In an affidavit filed in the Supreme Court variation proceeding the respondent says that the appellant ". has ongoing mental and emotional problem for which she must use antidepressants and is subject to large mood swings". He acknowledges that the appellant took the drug Effexor. He says that on one occasion after the separation, although the appellant was involved with another man, when the respondent invited woman to movie, the appellant threatened suicide. He arranged for an emergency session with her physician. We have before us, then, the appellant's evidence that she was clinically depressed and on medication and the respondent's evidence that she was exhibiting mood swings and unhappy in the marriage. Conspicuously absent from the file material is any evidence from the appellant's psychiatrist confirming her state of mind at the relevant time and the probable erect of the medication upon her ability to make rational decisions. The appellant attached to her affidavit three pages from medical text outlining the potential side effects of her medication. This information is of little assistance to the Court failing evidence from her psychiatrist about how the drug was affecting the appellant. The drug was prescribed to alleviate the effects of the depression. The appellant has remained on the drug, according to her evidence, since January of 1995. One would assume it to have had the desired result, without debilitating side effects. There is, as well, uncontradicted evidence that the parties had entered into two previous separation agreements, containing similar terms. According to the affidavit of the respondent, the terms of the first of these agreements were those dictated by the appellant. The lawyer who drew that agreement advised the appellant that she should receive independent legal advice in relation thereto. At the time of signing the final agreement she met with lawyer who was prepared, for nominal fee ($50), to provide independent legal advice. The appellant declined that offer. Nowhere in the material before us does the appellant say that she did not understand her legal entitlement at the time of signing the various agreements, that she did not understand the agreements, that the agreements did not express her wishes, that she was not capable of making a reasoned or rational decision in this regard, or that she did not appreciate that a divorce proceeding had been commenced. The import of her evidence is that she was on medication for depression when she signed the agreement, that she declined to exercise her opportunity to receive independent legal advice, that she allowed the divorce to proceed on an uncontested basis and that she now believes that she made bad bargain. I am not satisfied that the appellant has demonstrated that she had a reasonable excuse for failing to challenge the separation agreement at the time of the divorce proceeding. am persuaded to this view for the following reasons: the fact that over period of two years the appellant entered into series of agreements, each consistent with the other; that twice she rejected recommendations from lawyers to obtain independent legal advice; that she had access to funds to retain counsel; that the separations were at the instigation of the appellant; and that there is an absence of persuasive evidence that the appellant was unable to make an informed decision either at the time of entering the final agreement, or at the time of the commencement of the divorce proceeding. The appellant having failed to meet the first requirement of the two part test, it is unnecessary to consider whether or not she has strong prima facie case that the agreement is unconscionable. Although have, here, resolved this appeal on the merits, would express reservation as to whether an appeal is the proper avenue in matter such as this. This was not an issue raised by counsel. My concerns are based upon the premise that the judgments granted in this matter, which incorporate the separation agreement, equate to consent orders. In Levy v. Messom (1997) 1997 CanLII 14533 (NS CA), 159 N.S.R. (2d) 252 1997 Hallett, J.A. said, for the Court, at p.259: In Bank of Nova Scotia v. Golden Forest Holdings Ltd. (1990), 1990 CanLII 2489 (NS CA), 98 N.S.R- (2d) 429; 263 A.P.R- 429 (C.A.), this Court had occasion to consider the power of superior court to vary consent order that gives effect to settlement. We concluded that such an order could not be varied unless the settlement agreement itself could be varied. By implication we approved the following statement from Chitel v. Rothbart et al. (1987), 19 C.P.C. (2d) 48 (Ont. S.C.): consent order may only be set aside or varied by subsequent consent, or upon the grounds of common mistake, misrepresentation or fraud, or on any other ground which would invalidate contract. None of these grounds are present in the within case. Although the limits of superior court's power in the exercise of its inherent jurisdiction are not fully defined, there are nevertheless limits that have been established in certain areas and the power of court to vary consent order is one of them. There are clear limitations on the inherent jurisdiction of the Supreme Court of Nova Scotia to set aside consent order. But, more importantly, the Appeal Court is not the forum in which to set aside consent order. As stated by the New Brunswick Court of Appeal in Morency and Pelleder Charest et a1 (1991), 1991 CanLII 8293 (NB CA), 123 N.B. (2d) 392; 310 A.P.R. 392; 84 D.L.R. (4th) 567, consent order must be set aside, if it is to be set aside, in new proceeding instituted for that purpose. Such proceeding would be in the Supreme Court of Nova Scotia. [Emphasis added] In Morency v. Charest, (1991) 1991 CanLII 8293 (NB CA), 84 D.L.R. (4th) 567, (N.B.C.A.) Ayles, J.A., writing for the Court, refers to certain relevant passages from Halsbury's Laws of England, vol. 26, 4' ed. (London: Butterworths, 1979). (See also Family and Children's Services of Lunenburg County v. G.D. (1997), 1997 CanLII 14392 (NS CA), 160 N.S.R. (2d) 270 (N.S.C.A.)) At p. 286 Hals., para. 562, "Setting aside consent judgment or order": Unless all the parties agree, consent order, when entered, can only be set aside by fresh action, and an application cannot be made to the court of first instance in the original action to set aside the judgment or order, except, apparently, in the case of an interlocutory order. Nor can it be set aside by way of appeal. And at 37 Hals., 4' ed., at p. 286, para. 390: On the other hand, once consent judgment or order has been entered or passed, it cannot be set aside by the court of first instance in the original action, even if it was entered or passed by mistake, but it may be set aside or extended or altered with the consent of all the parties, provided that to do so will not prejudice third person. It may also be set aside, in fresh action brought for the purpose, on any ground which may invalidate the agreement on which it is founded. Moreover, where the consent order or judgment is still executory, the court may refuse to enforce it if it would be inequitable to do so. The Encyclopedia of Court Forms and Precedents, vol. (London: Butterworth Co. (Publishers) Ltd., 1948) (Judgments and Orders), states, at p. 147: consent judgment or order, even though it has been passed and entered, may be set aside on any ground which may invalidate the agreement on which it is founded, such as that the consent was induced by fraud, or was the result of mistake, or was ultra vires on the part of one of the contracting parties. consent judgment or order which has been passed and entered can only be set aside in afresh action brought for the purpose; except with the consent of the parties it cannot be set aside by motion in the original action, unless there has been clerical mistake or error arising from an accidental slip or omission, or the judgment or order drawn up does not correctly state what the Court actually approved and intended, or the order is an interlocutory order. If the judgment or order has not been passed and entered, it may be set aside on motion, unless from the nature of the ground on which the application is made conflicting evidence will have to be considered or viva voce evidence and cross-examination is essential .... [Emphasis added] Notwithstanding the clear thrust of the above authorities, the issue is somewhat complicated by s. 39 of the Judicature Act, R.S.N.S. 1989, c. 240: No order of the Supreme Court made with the consent of the parties is subject to appeal, and no order of the Supreme Court as to costs only that by law are left to the discretion of the Supreme Court is subject to appeal on the ground that the discretion was wrongly exercised or that it was exercised under misapprehension as to the facts or the law or on any other ground except by leave of the Court of Appeal. In the event that the Judicature Act is applicable in this matter, in which regard make no finding, it is unclear from the wording of s. 39, whether leave of the Court is available only with respect to appeals as to costs, or whether leave may be granted where consent order is appealed. In Cosper, supra, another panel of this Court remarked that an appeal from consent order requires leave of the Court, implying, therefore, that consent order may be the subject of an appeal. In view of my above analysis on the merits this procedural issue will not be determined in this appeal. DISPOSITION: I would dismiss the appeal with costs to the respondent of $1,000 plus disbursements. Bateman, J.A. Concurred in: Freeman, J.A Cromwell, J.A. 1996 No. 1201- 51442 (133910) IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: PAUL GREGORY IRVING and -­ DEBORAH LYNN IRVING RESPONDENT COROLLARY RELIEF JUDGMENT Cooper McDonald 1669 Granville Street Halifax, Nova Scotia BM 1X2 File No. MK 16127 1996 No. 1201- 51442 (133910) IN THE SUPREME COURT OF NOVA SCOTIA. BETWEEN: PAUL GREGORY IRVING and -­ DEBORAH LYNN IRVING RESPONDENT DIVORCE JUDGMENT Cooper McDonald 1669 Granville Street Halifax, Nova Scotia. B31 1X2 File No. MK 16127 CA: 136437 NOVA SCOTIA COURT OF APPEAL BETWEEN: DEBORAH LYNN IRVING -and­ PAUL GREGORY IRVING Respondent REASONS FOR JUDGMENT BY: BATEMAN,J.A.

The parties executed a separation agreement that resolved all matters corollary to their divorce and the Matrimonial Property Act. The respondent husband proceeded with an uncontested divorce. The appellant wife did not oppose the proceeding. She subsequently appealed the corollary relief judgment on the grounds that the underlying separation agreement is unconscionable and unduly harsh. She sought to introduce fresh evidence bearing upon the circumstances leading up to the divorce. Dismissing the appeal with costs, that even with the new evidence, the appellant still failed to demonstrate an adequate excuse for not responding to the divorce proceeding. There was no evidence that the appellant did not understand her legal entitlement at the time the agreements were signed, or that she did not appreciate that a divorce proceeding had been commenced.

1997canlii786.txt

2007 SKPC 74 IN THE PROVINCIAL COURT OF SASKATCHEWAN AT SASKATOON, SASKATCHEWAN Between HER MAJESTY THE QUEEN and Brian Erwin Gamble J. Plemel, Q.C. for the Crown M. Brayford, Q.C. for the Accused B.M. SINGER, PCJ DECISION June 27, 2007 [1] This is a decision, following a voir dire, on the admissibility of statements made by the accused to a police officer. [2] The Crown called Constable McGunigal. This officer testified that while investigating another matter he received word of single vehicle roll-over accident that had taken place outside Vanscoy on Highway #7. While continuing his investigation of the first incident, he attended at the parking lot of St. Paul’s Hospital in Saskatoon where he was approached by the accused. The accused called out to him and said; “Excuse me, I was in a roll-over accident and I am intoxicated.” [3] His interest piqued, the officer spoke with the accused and received identification information from his licence and advised him to check into the injuries he displayed by seeing the nurse at the emergency department. [4] The officer abandoned his previous investigation. He accompanied the accused to the triage nurse and stayed with him while the accused checked in. During this process the officer observed symptoms of impairment and asked the accused how much he had to drink and was told that he had consumed about 15 beer. [5] The police officer formed the opinion that he should ask the accused for blood sample to determine the quantity of alcohol in his blood. He therefore placed the accused under arrest for impaired operation of motor vehicle, read him his Charter rights, the Police Warning and Demand for Blood Sample. According to the officer, the accused understood his rights, the warning and the demand for the blood sample and was “relatively co-operative” through out. The officer then detained the accused, by remaining with him while awaiting the Blood Kit to arrive and for blood technician to take the blood. During this time, the accused was also awaiting treatment for his injuries. [6] While they were waiting the officer interrogated the accused about the accident and the accused provided additional information to the officer. [7] The accused testified on the voir dire. He said that after the roll-over, he received ride to Saskatoon with truck driver, who dropped him off near his cousin’s home. While walking there he phoned his father, cousin and the 9-1-1 operator. He received advice that there was legal obligation to report the accident promptly to the police. Indeed, the 9-1-1 operator gave him the police phone number to do this. He then went to the hospital to attend to his injuries. [8] He testified, that when he talked to the police officer, it was only because he felt he had legal obligation to do so. Perhaps, that is why he approached the officer in the way he did and was co-operative throughout. However, he had no recollection of the officer ever placing him under arrest, giving him the warning or making the blood demand. [9] It is useful for me to divide the series of statements that the accused made into groups. Those before the arrest and those given after. [10] The Crown concedes that the accused did have a legal obligation to report the accident promptly, and if I find that the accused believed he was reporting the accident when he gave self-incriminating statements to the police officer as a result of this belief, then the law requires me to exclude those statements. The concession made by the Crown is correct. As stated in R. v. White, (1999) 1999 CanLII 689 (SCC), 24 C.R. (5th) 201 S.C.C. any self-incriminating statements believed to be made under compulsion of provincial statute would be breach of the accused’s section Charter rights and would result in an unfair trial. [11] I find in this case that the accused did approach the police officer with the intention of reporting the accident as is required by the Traffic Safety Act. There really is no other reasonable explanation for his statement to the police. As such his initial statement, anything said by the accused while providing his personal information and the answer to any question while registering at the hospital are excluded from this trial. [12] This leaves us with the statements made after his arrest, rights and warning. The accused testified that he did not recall being placed under arrest, being given his rights and warning or even the blood demand. The officer was sure that he had done so and had made contemporaneous note, in his notebook, of these statements to the accused and his responses. find as fact that the arrest, rights and warning were read to the accused and that he understood them. [13] The accused testified that when he continued to talk to the officer he was only doing so because he still felt compelled to do so by his statutory obligation. The Crown contends that if I accept that he was given the police warning then it would be clear to the accused that he did not have to continue to answer questions of the officer. [14] The Defence also argues that since the arrest and the blood demand were based upon evidence that was obtained by breach of the accused’s section 7 rights and was self- incriminating, I should find that the arrest was illegal and exclude all evidence obtained thereafter, or at least that the information obtained was illegally obtained and the police cannot rely on that information to make the demand. These are two distinct arguments. [15] The latter argument is somewhat supported by the British Columbia Court of Appeal in R. v. Powers, [2006] BCCA 454. That case holds that where police officer’s grounds for making demand for sample are as the result of self-incriminating statements of the accused, that have been excluded as they are in breach of section (as they were made under compulsion of statute), the results of the demand must be excluded. In other words, evidence of the certificate of analyses may be excluded if the evidence which resulted in the demand for the samples was illegally obtained. That is not however the subject of this voir dire, which is the admissibility of statements made to the police officer after the accused was placed under arrest. However, that case is instructive as to the effect of the continuing belief of the accused that he was obliged to answer the questions of the officer under the compulsion of statute. [16] In the case before us, the self-incriminating statements, that were made under compulsion of statute have been excluded. Does is it not follow that any evidence that came about as a result of the officer following up on those excluded statements are also in breach of the accused’s section 7 rights? I believe so. [17] Having concluded that the evidence received by the officer was as the result of breach of his section rights, must now determine if the evidence so gathered must be excluded from the trial pursuant to section 24(2) of the Charter. [18] This is more difficult decision. The evidence must only be excluded based upon the factors expressed in R. v. Collins, [1987] S.C.R. 285 and R. v. Stillman (1997), 1997 CanLII 384 (SCC), 113 C.C.C. (3d) 321. In making this analysis it is important for me to state that believe that the officer was acting in good faith. Indeed, he did not know that the accused was only saying things because he believed he had to under compulsion of statute. Constable McGunigal was not acting with serious, intentional disregard of the accused’s rights nor was he taking statement under the Traffic Safety Act. He was interrogating the accused after he had arrested him, explained what he was arrested for, explained to him his rights to counsel and further warned him that he was not obligated to say anything further to the police. accept that the accused responded to the police officer that he knew his rights and understood the warning. [19] On the other hand, the evidence obtained, the statements in particular were self- incriminating and conscriptive. As the Supreme Court held in Stillman, at paragraph 110 where evidence would not have been discovered in the absence of the conscription of the accused in violation of the Charter, its admission would render the trial unfair. In those circumstances it is not necessary to consider the seriousness of the violation or the repute of the administration of justice. Evidence obtained though process of self-incrimination will generally be excluded in order to ensure that the accused has fair trial. The fair trial test tends more towards an absolute rule of exclusion because courts are instructed not to concentrate on the motives behind the Charter violation. Of course, the rule is different if we are dealing with “real” evidence. [20] That being the case I have concluded that even though the investigator did nothing that violated the accused’s rights, they were nevertheless violated. Because the result of that violation was that there were statements made that amounted to self-incriminating evidence, following the logic of the case law, it is necessary to exclude those statements. Therefore, all of the statements of the accused including those made after the arrest are excluded and will not form part of the Crown’s case. [21] The result of the voir dire is that none of the statements of the accused will be admissible in evidence in this trial. Dated at Saskatoon this 27th June 2007. B.M. Singer, P.C.J.

Decision, following a voir dire, on the admissibility of statements made by the accused to a police officer, beginning with: 'Excuse me, I was in a roll-over accident and I am intoxicated.' The officer, who observed symptoms of impairment, asked the accused how much he had had to drink and was told he had consumed about 15 beers. The officer placed the accused under arrest for impaired operation of a motor vehicle, and read him his Charter rights, the Police Warning and a Demand for Blood Sample. The officer then detained the accused by remaining with him while awaiting the Blood Kit to arrive and for a blood technician to take the blood. During this time, the officer interrogated the accused about the accident and the accused provided additional information. The Crown contended that if he was given the police warning then it would be clear to the accused that he did not have to continue to answer questions the officer's questions. The Defence argued that since the arrest and the blood demand were based upon self-incriminating evidence obtained by breach of the accused's s. 7 rights, the arrest was illegal and all evidence obtained thereafter should be excluded; or, at least, that the information obtained was illegally obtained and the police could not rely on that information to make the demand. The accused testified that he talked to the police officer only because he believed he had a legal obligation to do so, based on advice he had received from others that there was a legal obligation to report the accident promptly to the police. The Crown conceded that the accused did have a legal obligation to report the accident promptly, and that if the accused believed he was reporting the accident when he gave self-incriminating statements to the police officer as a result of that belief, those statements must be excluded according to law. HELD: All of the statements of the accused, including those made after the arrest, are excluded and will not form part of the Crown's case. The evidence obtained, and the statements, in particular, were self-incriminating and conscriptive. The officer was acting in good faith, not with serious intentional disregard of the accused's rights. He was not taking a statement under the Traffic Safety Act. He did not know that the accused was only saying things because he believed he had to under compulsion of statute. Even though the investigator did nothing that violated the accused's rights, they were nevertheless violated. Because the violation resulted in the making of statements that amounted to self-incriminating evidence, following the logic of the case law, it is necessary to exclude those statements. The accused did approach the police officer with the intention of reporting the accident as is required by the Traffic Safety Act. As such, and as the Crown correctly concedes, his initial statement, anything said by the accused while providing his personal information and the answer to any question while registering at the hospital are excluded from this trial. As the self-incriminating statements made under compulsion of statute have been excluded, it follows that any evidence that came about as a result of the officer following up on those excluded statements are also in breach of the accused's s. 7 rights.

5_2007skpc74.txt

D.P. Ball QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2005 SKQB 542 Date: 20051221 Docket: Q.B.G. 2364/2003 Judicial Centre: REGINA BETWEEN: THOMAS PAUL BEKKATTLA and THE GOVERNMENT OF SASKATCHEWAN Counsel: E.F. Anthony Merchant, Q.C. for the plaintiff Dale K. Beck for the defendant JUDGMENT GUNN J. December 21, 2005 [1] This matter was argued by counsel prior to the decisions of the Supreme Court of Canada denying the application for leave to appeal the decisions of F.P .v. Saskatchewan, 2004 SKCA 59 (CanLII); (2004), 249 Sask. R. 42 (Sask. C.A.) (leave to appeal dismissed [2004] S.C.C.A. No. 311 QL) and R.J.G. v. A.G. (Canada), 2004 SKCA 102 (CanLII); (2004), 249 Sask. R. 244 (Sask. C.A.) (leave to appeal dismissed [2004] S.C.C.A. No. 425 QL) which have relevance to the applications before the court. The decision was reserved pending the decisions of the Supreme Court. Counsel were thereafter given the opportunity to make any additional arguments. [2] The Government of Saskatchewan (“the Government”) seeks an order: (1) pursuant to Rule 164(4) of The Queen’s Bench Rules requiring Thomas Bekkattla (“the Plaintiff”) to provide better particulars in response to its demand for particulars, and in default of so doing, striking the offending portions of the statement of claim; (2) pursuant to Rule 173 of the Rules striking the following pleadings: (a) Paragraph (b) From paragraph 21, the clause “(h) other assaults that will be proven at trial”; (c) From paragraph 23: (i) the words “breach of trust, and breach of fiduciary duty” where they appear in the third line, and (ii) the words “which include but” and “not limited to the following” in the fourth and fifth line, so that the phrase reads “the particulars are”; (d) From paragraph 27, the concluding words “the particulars of which will be proven at trial”; (e) From paragraph 30, the word “punitive” in the fifth line; (f) The whole of paragraphs 31 and 32; (g) The phrase “exemplary and punitive” in clause 33(d) and substituting the words “and exemplary”; (h) The whole of clause 33(e) “Damages for breach of fiduciary duty”; (i) The whole of clause 33(f) “Interest pursuant to The Pre-judgment Interest Act, S.S. 1984-85-86, c. P-22.2.” [3] The applicable rules are the following: 139(1) Every pleading shall contain and contain only statement in summary form of the material facts on which the party pleading relies for his claim or defence, but not the evidence by which the facts are to be proved. pleading shall be as brief as the nature of the case will permit. (2) Where necessary full particulars of any claim, or defence shall be stated in the pleading. 142 party shall refer to any statute or regulation on which his action or defence is founded, and where practicable shall give particulars of the specific sections on which he relies. 164(1) party may at any time before the action is set down for trial deliver notice in writing, requiring from any other party further and better statement of the nature of the claim or defence or further and better particulars of any matter of which particulars should properly be given and such notice shall clearly state the particulars required. (2) The party on whom such notice for particulars is served shall within eight days after service of such notice deliver statement of the particulars required therein. (4) If the party from whom particulars have been required makes default in delivering particulars within the time limited, or the particulars delivered are not satisfactory, the party making the demand may apply for an order requiring the party on whom such notice has been served to give further notice or better particulars and the court may order delivery of particulars on such terms as to costs and otherwise as may seem just. 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: (a) it discloses no reasonable cause of action or defence, as the case may be; (b) it is immaterial, redundant or unnecessarily prolix; (c) it is scandalous, frivolous or vexatious; (d) it may prejudice, embarrass or delay the fair trial of the action; (e) it is otherwise an abuse of the 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. 1. Does the plaintiff’s response to the Demand for Particulars fulfill the requirements of Rules 142 and 164 of the Rules? 2. Application to strike pleadings pursuant to Rule 173: (a) Are open-ended pleadings proper? (b) Do the pleadings support claim for breach of fiduciary duty and breach of trust? (c) Is the claim for “punitive and exemplary damages” redundant? (d) May pre-judgment interest be claimed for cause of action that pre-dates the proclamation of The Pre-judgment Interest Act on January 1, 1986? Re:(1) Does the plaintiff’s Response to the Demand for Particulars fulfill the requirements of Rules 142 and 164 of the Rules? [4] In paragraphs and of the statement of claim, the Plaintiff alleges statutory and regulatory authority without providing particulars of statutes and regulations. Following is the text of the relevant paragraphs of the statement of claim, as amended, the demand for particulars made in respect of each of these paragraphs and the response provided: 2. The Defendant, the Government of Saskatchewan, pursuant to Section 14 of The Proceedings Against the Crown Act, R.S.S. 1978, c. P-27, represents Her Majesty the Queen in Right of Canada (hereinafter “the Government”) in this proceeding and at all material times was responsible for providing for the education of children under the terms of The Education Act, c. E-0.2 (hereinafter “the Act”). The Demand for Particulars: 1. Particulars as contemplated by Rule 142, of the specific sections of The Education Act, c. E. 0.2, (proclamation in effect as of January 1, 1997) referenced in paragraph of the plaintiffs’[sic] claim by which the plaintiff alleges that the Government of Saskatchewan “was at all material times responsible for providing for the education of children”, or particulars of such other Act or Acts as were in effect during the material times. The Response: 2. There is no specific statutory provision that establishes the responsibility for establishing, operating, and maintaining the school. However, as the Defendant was in charge of the Residential School at the time, the legislation governs its operation and maintenance. This arrangement is within the knowledge and peruse[sic] of the Defendant and, as such, the Plaintiff is not obliged to provide further particulars. 5. At all material times, the Government had responsibility for establishing, operating and maintaining the Residential School for children, and entering into agreements with, inter alia, religious or charitable organizations, for the education of children. Further, pursuant to the Act, the Government was authorized to make and enforce regulations with respect to the standards of buildings, equipment, teaching, education, inspection and discipline in connection with Residential Schools for children. The Demand for Particulars: 2. Particulars of the statutory provisions by which the plaintiff alleges in paragraph of the plaintiff’s claim that the Government of Saskatchewan “had responsibility for establishing, operating and maintaining the Residential School for children, and entering into agreements with, inter alia, religious or charitable organizations, for the education of children.” 3. Particulars, as contemplated by Rule 142, of the specific sections of The Education Act, c. E-0.2, (or such other Act or Acts as were in effect during the material times) by which the plaintiff alleges in paragraph of the plaintiff’s claim that “the Government was authorized to make and enforce regulations with respect to the standards of buildings, equipment, teaching, education, inspection and discipline in connection with Residential Schools for children.” The Response: 2. There is no specific statutory provision that establishes the responsibility for establishing, operating, and maintaining the school. However, as the Defendant was in charge of the Residential School at the time, the legislation governs its operation and maintenance. This arrangement is within the knowledge and peruse[sic] of the Defendant and, as such, the Plaintiff is not obliged to provide further particulars. 3. The Particulars demanded refer to general powers conferred to the Defendant that are all within the knowledge and peruse [sic] of the Defendant and, as such, the Plaintiff is not obliged to provide further particulars. [5] Rule 142 requires party to refer to any statutes or regulations on which his action relies (Judith River Farm and Water Ltd. Partnership v. Saskatchewan 2004 SKQB 227 (CanLII); [2004] S.J. No. 388 QL (Sask. Q.B.), Ball J. at para. 22). Particulars are appropriate to enable party to properly plead in response and to eliminate surprise. (See: Mathew and Lemon v. Cameron et al, (1964) 1964 CanLII 336 (SK QB), 48 W.W.R. (N.S.) 162 (Sask. Q.B.); Donric Enterprises Ltd. v. Northco Foods Ltd. [1994] S.J. No. 482 QL (Sask. Q.B.)). [6] In circumstances where the Plaintiff has no particulars, he should so state. The response that the particulars demanded are “within the knowledge and peruse[sic] of the Defendant and as such, the Plaintiff is not obliged to provide further particulars” does not comply with the Rule (See Koop v. Saskatchewan Power Corp. (1997), 1997 CanLII 11140 (SK QB), 159 Sask. R. 290 (Sask. Q.B.) at para. 12). [7] The Government submits that it is essential for the Plaintiff to reference with particularity the statutes upon which he relies in order for it to properly defend the action and not be taken by surprise. The Plaintiff has referenced statute which was not in effect in 1963-1973 when the Plaintiff claims he was attending the school (paragraph of the statement of claim). [8] The Plaintiff relies on Odger’s Principles of Pleading and Practice in Civil Actions in the High Court of Justice, 22nd Ed. (Stevens Son: London, 1981) where the test to be followed in determining whether particulars are appropriate is set out at page 155 as follows: It is no objection to an application for particulars that the applicant must know the true facts of the case better than his opponent. He is entitled to know the outline of the case that his adversary will try to make against him, which may be something very different from the true facts of the case. His opponent may know more than he does; in any event it is well to bind him down to definite story. Particulars will be ordered whenever the master is satisfied that without them the applicant cannot tell what is going to be proved against him at the trial. But how his opponent will prove it is matter of evidence of which particulars will not be ordered. [Emphasis in original] [9] The Government submits that the issue here is not how something will be proven at trial, but what will be proven at trial. Depending on the particulars of the statutes and regulations relied upon, the Government may rely on The Public Officers’ Protection Act, R.S.S. 19778, c. P-40, as am. (repealed by S.S. 2004, c. L-16.1, effective May 1, 2005) which sets forth certain limitation periods depending on the nature of the claim. [10] The Government identifies the problems facing it by referencing the constitutional and legislative scheme governing education. Section 93 of the Constitution Act, 1867 (U.K.) 30 31, Vict. c, provides: 93. In and for each Province the Legislature may exclusively make Laws in relation to Education, subject and according to the following Provisions: (1) Nothing in any such Law shall prejudicially affect any Right or Privilege with respect to Denominational Schools which any Class of Persons have by Law in the Province at the Union: (2) All the Powers, Privileges, and Duties at the Union by Law conferred and imposed in Upper Canada on the Separate Schools and School Trustees of the Queen’s Roman Catholic Subjects shall be and the same are hereby extended to the Dissentient Schools of the Queen’s Protestant and Roman Catholic Subjects in Quebec; (3) Where in any Province System of Separate or Dissentient Schools exists by Law at the Union or is thereafter established by the Legislature of the Province, an Appeal shall lie to the Governor General in Council from any Act or Decision of any Provincial Authority affecting any Right or Privilege of the Protestant or Roman Catholic Minority of the Queen’s Subjects in relation to Education; (4) In case any such Provincial Law as from Time to Time seems to the Governor General in Council requisite for the due Execution of the Provisions of this Section is not made, or in case any Decision of the Governor General in Council on any Appeal under this Section is not duly executed by the proper Provincial Authority in that Behalf, then and in every such Case, and as far only as the Circumstances of each Case require, the Parliament of Canada may make remedial Laws for the due Execution of the Provisions of this Section and of any Decision of the Governor General in Council under this Section. [11] The legislature has the right to make laws respecting education. In Saskatchewan, the legislature delegated the duty to provide schools and education to the boards of trustees of school districts (or units or divisions, as they were known at various times). For example Section 116, paragraphs 9, 28 and 38 of The Schools Act, R.S.R. 1940, c. 165, provided inter alia: 116. It shall be the duty of the board of every district and it shall have power: 9. subject to the provisions of this Act and the regulations of the department, to provide instruction appropriate to their grades for all pupils who have the right to attend school; 28. to suspend or dismiss any teacher for gross misconduct, neglect of duty or refusal or neglect to obey any lawful order of the board,... 38. to see that the law with reference to compulsory education and truancy is observed; [12] The Plaintiff fails to identify the legislative scheme by which responsibility for education in Ile a la Crosse or specifically, responsibility for education of a group of people that included the Plaintiff, was delegated to the Minister of Education or any other member of executive government. [13] I am satisfied that the Government is entitled to know the case it has to meet. If the Plaintiff knows the statutes and regulations on which he relies, he must provide particulars of same. If he does not have particulars of the statutes and regulations on he relies, he must so state. Re:(2) Application to strike pleadings pursuant to Rule 173: THE PLEADINGS [14] The pleadings which are in issue are set out in the amended statement of claim as follows: 7. This entire paragraph has been deleted. 21. Principal Henry, Mr. Jabois and Father Everett, and other supervisors, teachers or laypersons, in their capacity as supervisors of children at the Residential School, intentionally assaulted the Plaintiff many times while he was student, the particulars of which inter alia, are as follows: (a) The Plaintiff was on numerous occasions strapped on the palms and hands with leather belt and/or whip; (b) The Plaintiff was hit repeatedly over the knuckles and palms with metre and/or yardstick; (c) On other numerous occasions and, without reason, the Plaintiff’s clothing would be pulled down and the Plaintiff’s exposed buttocks would be strapped; (d) On other occasions the Plaintiff was confined to room alone with no outside contact for hours at time and was denied food for that period; (e) The Plaintiff was, on numerous occasions, repeatedly struck on the head with textbook; (f) On numerous occasions, the Plaintiff was struck on the ear and/or had his ears pulled and twisted; (g) The Plaintiff’s hair was pulled; (h) Other assaults which will be proven at Trial. 23. The assaults and resulting injuries and the failure to provide proper education to the Plaintiff as well as the denigration and depreciation of the Plaintiff were caused by the negligence, breach of trust, and breach of fiduciary duty of the Government, the servants, agents, and employees of the Government, the particulars of which include but are not limited to the following: 27. The Plaintiff will also incur further expenses, including expenses for medication, therapy, counselling, hospitalization, rehabilitation, medication, and other forms of medical treatment and care, the particulars of which expenses will be proven at trial. 30. The Defendant conducted itself with brutal and callous disregard and complete lack of care for the Plaintiff and of his rights. The Defendant knew or ought to have known, and was, or should have been, conscious of the probable consequences of its actions and the damages such actions would cause to the Plaintiff. The Plaintiff is entitled to aggravated, punitive and exemplary damages from the Plaintiff. 31. The Defendant was under positive fiduciary duty to protect the Plaintiff from injury to his person, physical or mental health or morals, and the Defendant knew or ought to have known that the Plaintiff would suffer damages if the Defendant failed to carry out its duty. 32. Pursuant to s. 19 of The Department of Health Act, S.S. 1995, as amended, the Plaintiff, on behalf of the Minister of Health, claims such sums for hospital and medical services provided to the Plaintiff, the particulars of which have not been ascertained at this time, but once ascertained and paid will constitute special damages. 33. The Plaintiff therefore claims of the Defendant: (a) General damages; (b) Special damages in an amount to be proven at trial; (c) Damages for past and future loss of income in an amount to be proven at trial; (d) Aggravated, exemplary and punitive damages; (e) Damages for breach of fiduciary duty; (f) Interest pursuant to The Pre-judgment Interest Act, S.S. 1984-85-86, c. P-22.2; [Emphasis added] [15] Sherstobitoff J.A. in Milgaard v. Kujawa, 1994 CanLII 4592 (SK CA), [1994] W.W.R. 305 (Sask. C.A.) at para. 15 set out the standard for striking out claim or portions thereof under Rule 173 as follows: ¶15 Rule 173 and equivalent rules in other jurisdictions have been considered by this Court and the Supreme Court in number of recent judgments: Canada (Attorney General) v. Inuit Tapirisat of Canada, 1980 CanLII 21 (SCC), [1980] S.C.R. 735; Hunt v. T.& plc, (sub nom. Hunt v. Carey Canada Inc.) 1990 CanLII 90 (SCC), [1990] S.C.R. 959 [[1990] W.W.R. 385]; Sagon v. Royal Bank (1992), 1992 CanLII 8287 (SK CA), 105 Sask. R. 133. ¶16 The most authoritative and relevant statement of the standard to apply in these cases is Hunt v. Carey where Wilson J. said, referring to British Columbia and Ontario rules almost identical to R. 173, at p. 980: Thus the test in Canada governing the application of provisions like Rule 19(24)(a) of the British Columbia Rules of Court is the same as the one that governs an application under R.S.C. O. 18 r. 19: assuming that the facts as stated in the statement of claim can be proved, is it “plain and obvious” that the plaintiff’s statement of claim discloses no reasonable cause of action? As in England, if there is chance that the plaintiff might succeed, then the plaintiff should not be “driven from the judgment seat”. Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present strong defence should prevent the plaintiff from proceeding with his or her case. Only if the action is certain to fail because it contains radical defect ranking with the others listed in Rule 19(24) of the British Columbia Rules of Court should the relevant portions of plaintiff’s statement of claim be struck out under Rule 19(24)(a). (a) Are open-ended pleadings proper? [16] This issue relates to the highlighted portions of paragraphs 21, 23 and 27 of the claim reproduced supra. [17] The Government relies on R.E.L. v. J.G-S. (2000), 2000 SKQB 74 (CanLII), 191 Sask. R. 204 (Sask. Q.B.) where the phrases “without limiting the generality of the foregoing” and “without limitation” were struck. However, that case involved claim for defamation which cannot be pled in general way. [18] The plaintiff cites samples of cases involving similar open ended phrases and submits that such wording is common and should be permitted by the courts. [19] In the circumstances here, I am not prepared to strike the phrases complained of. The conduct of examinations for discovery and undertakings can provide the defendant with particulars of allegations to be made by the plaintiff in order to permit it to properly defend the action. (b) Do the pleadings support claim for damages for breach of fiduciary duty and breach of trust? [20] In F.P. v. Saskatchewan, supra, the Court of Appeal began its analysis of breach of trust and breach of fiduciary duty with the following general comments about pleadings: [57] We now turn to the subsidiary issues concerning the appellants’ claim that the Government is liable on the bases of breach of fiduciary duty and breach of trust. Essentially, these involve the need to properly define the issues in pleadings and comply with the Queen’s Bench Rules designed to achieve that end. This Court commented on the importance of this in Ducharme and Holben v. Davies and Rogoschewsky, 1983 CanLII 2310 (SK CA), [1984] W.W.R. 699; 29 Sask. R. 54 (C.A.), noting that the function of pleading is, among others, to clearly and precisely define the question in controversy. We also made the point that pleadings remain an important component of every lawsuit, they are to be framed with care and in accordance with the Rules, and that they are expected to set forth such facts as are material to the cause or causes of action being advanced. [21] Paragraph 17 of the claim in F.P. (reproduced at paragraph of the judgment) is substantially the same as paragraph 23 in the statement of claim in this case. In F.P. the Court of Appeal noted the applicable principles set out in A.(C). v. Critchley (1998), 1998 CanLII 9129 (BC CA), 166 D.L.R. (4th) 475 (B.C.C.A.) and approved by the Supreme Court of Canada in K.L.B. v. British Columbia 2003 SCC 51 (CanLII); [2003] S.C.R. 403. It then said: ¶61 Applying these principles to the issues in these appeals, we find that the pleadings do not lay foundation for breach of fiduciary duty. There is no allegation in the appellants’ pleadings that the Government acted in its own self-interest and against the interests of either of the appellants. Although there is passing reference to breach of fiduciary duty, no material facts are pleaded in support of any such claims. [22] In the companion case of R.J.G. v. Canada (Attorney General), supra, (leave to appeal to the Supreme Court of Canada dismissed March 3, 2005), the Court of Appeal again addressed the issue of whether there was foundation for the claims of breach of trust and breach of fiduciary duty in the pleadings. It referred to the approach taken in A.C. v. Critchley, supra, which has been approved by the Supreme Court of Canada in K.L.B. v. British Columbia, supra, and at paragraph 27 quoted extensively from the decision of McLachlin C.J.C. speaking for the Court (paras. 48-50) as follows: ¶48 What then is the content of the parental fiduciary duty? This question returns us to the cases and the wrong at the heart of breaches of this duty. The traditional focus of breach of fiduciary duty is breach of trust, with the attendant emphasis on disloyalty and promotion of one’s own or others’ interests at the expense of the beneficiary’s interests. Parents stand in relationship of trust and owe fiduciary duties to their children. But the unique focus of the parental fiduciary duty, as distinguished from other duties imposed on them by law, is breach of trust. Different legal and equitable duties may arise from the same relationship and circumstances. Equity does not duplicate the common law causes of action, but supplements them. Where the conduct evinces breach of trust, it may extend liability, but only on that basis. As wrote in Norberg v. Wynrib, 1992 CanLII 65 (SCC), [1992] S.C.R. 226: “In negligence and contract the parties are taken to be independent and equal actors, concerned primarily with their own self-interest. The essence of fiduciary relationship, by contrast, is that one party exercises power on behalf of another and pledges himself or herself to act in the best interests of the other” ¶49 have said that concern for the best interests of the child informs the parental fiduciary relationship, as La Forest J. noted in M.(K.) v. M.(H.) supra, at p. 65. But the duty imposed is to act loyally, and not to put one’s own or others’ interests ahead of the child’s in manner that abuses the child’s trust. This explains the cases referred to above. The parent who exercises undue influence over the child in economic matters for his own gain has put his own interests ahead of the child’s, in manner that abuses the child’s trust in him. The same may be said of the parent who uses child for his sexual gratification or parent who, wanting to avoid trouble for herself and her household, turns blind eye to the abuse of child by her spouse. The parent need not, as the Court of Appeal suggested in the case at bar, be consciously motivated by desire for profit or personal advantage; nor does it have to be her own interests, rather than those of third party, that she puts ahead of the child’s. It is rather question of disloyalty of putting someone’s interests ahead of the child’s in manner that abuses the child’s trust. Negligence, even aggravated negligence, will not ground parental fiduciary liability unless it is associated with breach of trust in this sense. ¶50 Returning to the facts of this case, there is no evidence that the government put its own interests ahead of those of the children or committed acts that harmed the children in way that amounted to betrayal of trust or disloyalty. The worst that can be said of the Superintendent is that he, along with the social workers, failed properly to assess whether the children’s needs and problems could be met in the designated foster homes; failed to discuss the limits of acceptable discipline with the foster parents; and failed to conduct frequent visits to the homes given that they were overplaced and had documented history of risk (trial judgment, at para. 74). The essence of the Superintendent’s misconduct was negligence, not disloyalty or breach of trust. There is no suggestion but that he was serving anyone’s interest but that of the children. His fault was not disloyalty, but failure to take sufficient care. [Emphasis in Original] [23] The Court of Appeal in R.J.G. applied these principles and found that the pleadings did not lay foundation for either breach of fiduciary duty or breach of trust. On the issue of breach of fiduciary duty, there was no allegation that the Government acted in its own self-interest and against the interest of the plaintiff. No material facts were pleaded in support of claim for breach of fiduciary duty or for claim for breach of trust. [24] The Government demanded full particulars of the breach of trust alleged in paragraph 23 of the claim, including identities of the trustee and the beneficiary of the trust, description of the trust property, and description of how the trust was broken. [25] The Plaintiff’s response was that this was not claim “for breach of actual trust, in its technical legal context The trust that is referred to in the Statement of Claim refers to duty that the Defendant had to the Plaintiff that was breached through its tortious acts.” [26] The Government has demanded particulars of the “breach of fiduciary duty” alleged in paragraph 23, specifically “description of how the government put its interests ahead of the interests of the plaintiff”. [27] The Plaintiff’s response was that this was legal demand for evidence and that he declined to answer as he was not compelled to do so on the authority of Rule 139. He says further that the statements in his claim are sufficient for pleading purposes and do not require the demanded particulars to enable the Government to prepare its defence. [28] Applying the principles set out in F.P. and R.J.G. to the pleadings under consideration here, I find that the pleadings do not lay a foundation for either breach of fiduciary duty or breach of trust and paragraphs 31 and 33(e) are struck. In addition the phrase “breach of trust and breach of fiduciary duty” is struck from paragraph 23. (c) Is the claim for “punitive and exemplary damages” redundant? [29] This issue was canvassed by Klebuc, J. in MacKinnon (Litigation Guardian of) v. Devine 2003 SKQB 548 (CanLII); [2004] W.W.R. 695 (Sask. Q.B.). At paragraph 15 he referred to S.M. Waddams, The Law of Damages, 3d ed. (Toronto: Canada Law Book, 1997) at p. 483: para. 11.10 where the issue is discussed in the following way: An exception exists to the general rule that damages are compensatory. This is the case of an award made for the purpose not of compensating the plaintiff but of punishing the defendant. Such awards have been called exemplary, vindictive, penal, punitive, aggravated, and retributory, but the expressions in common modern use to describe damages going beyond compensatory are exemplary and punitive damages. “Exemplary” was preferred by the House of Lords in Cassell Co. Ltd. v. Broome [[1972] A.C. 1027(H.L.)] but “punitive” has also been used in many Canadian courts including the Supreme Court of Canada in H.L. Weiss Forwarding Ltd. v. Omnus 1975 CanLII 23 (SCC), [1976] S.C.R. 776, 63 D.L.R. (3d) 654]. [30] Mr. Justice Cory in Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] S.C.R. 1130 at para. 196 articulated the essential elements of punitive damages as follows: ¶196 Punitive damages may be awarded in situations where the defendant’s misconduct is so malicious, oppressive and high-handed that it offends the court’s sense of decency. Punitive damages bear no relation to what the plaintiff should receive by way of compensation. Their aim is not to compensate the plaintiff, but rather to punish the defendant. It is the means by which the jury or the judge expresses its outrage at the egregious conduct of the defendant. They are in the nature of fine which is meant to act as deterrent to the defendant and to others from acting in this manner. [31] Ken Cooper-Stephenson, in Personal Injury Damages in Canada, 2d ed. (Toronto: Carswell, 1996) at p. 530 distinguishes aggravated from exemplary damages in these words: Although both are rooted somewhere in the defendant’s misbehaviour, their goals are fundamentally different. The goal of aggravated damages, as we have seen, is to compensate for injured feelings; the goal of exemplary damages is to punish and deter. [32] Klebuc, J. concluded his analysis in MacKinnon, supra by saying that he was satisfied that exemplary damages and punitive damages were synonymous and therefore that only one of them should be pled to avoid confusion. agree with Klebuc J. and direct that any reference to exemplary damages should be read as to include punitive damages and that only one phrase be used. (d) May pre-judgment interest be claimed for cause of action that pre-dates the proclamation of The Pre-Judgment Interest Act on January 1, 1986? [33] In AE Realisations (1985) Ltd. v. North Canada Air Ltd. et al. (1993), 1993 CanLII 6768 (SK CA), 113 Sask. R. 12 the Saskatchewan Court of Appeal said the following at para. [17] The final ground of appeal was that the judge erred in allowing prejudgment interest. The cause of action arose in early 1985. The Pre-Judgment Interest Act, S.S. 1984-85-86, c. P-22.2 did not come into effect until January 1, 1986, and so cannot apply to this case. [34] Further in H.L v. Canada (Attorney General), 2002 SKCA 131 (CanLII); [2003] W.W.R. 421 (Sask. C.A.) (appealed to the S.C.C., but not on this issue) Cameron J.A. held that pre-judgment interest did not apply to actions which pre-date the Act. Here, in paragraph the plaintiff identifies the period of time he attended the school as being between 1963 to 1973 and that the causes of action arose during that time period. As the causes of action clearly predate the coming into force of The Pre-Judgment Interest Act, the provisions of that Act have no application to the plaintiff’s claim. [35] The Government also takes the position that paragraph 32 of the statement of claim should be struck as it is claim on behalf of the Government of Saskatchewan and it cannot be maintained against the Government of Saskatchewan. Re:(3) Order [A] No later than January 15, 2006, the plaintiff shall serve on the Government with copy to be filed with this Court further and better particulars in respect of the demand for particulars made respecting paragraphs and of the statement of claim. In the event the plaintiff fails to comply, the Government may renew its application to strike the offending paragraphs. [B] It is further ordered that the following paragraphs and phrases be struck from the plaintiff’s claim pursuant to Rule 173: a) From paragraph 23 the words “breach of trust, and breach of fiduciary duty”. b) From paragraph 30 the word “punitive” in the fifth line. c) The whole of paragraph 31. d) The whole of paragraph 32. e) The phrase “exemplary and punitive” in clause 33(d) and substituting the word “exemplary”. f) The whole of clause 33(e) “Damages for beach of fiduciary duty”. g) The whole of clause 33(f) “Interest pursuant to The Pre-judgment Interest Act, S.S. 1984-85-86, c. P-22.2.” [36] Costs awarded to the Government in accordance with Rule 173.

The Government seeks an order pursuant to Rule 164(4) of the Queen's Bench Rules requiring the plaintiff to provide better particulars in response to its demand for particulars and pursuant to Rule 173 of the Rules and order striking portions of the pleadings. HELD: 1) The plaintiff has failed to identify the legislative scheme by which responsibility for education in Ile a la Crosse or specifically, responsibility for education of a group of people that included the plaintiff, was delegated to the Minister of Education or any other member of executive government. The Government is entitled to know the case it has to meet. If the plaintiff knows the statute and regulations on which he relies, he must provide particulars. If he does not have particulars of the statutes and regulations, he must so state. 2) The court was not prepared to strike the phrases 'without limiting the generality of the foregoing' and 'without limitation'. The conduct of examination for discovery and undertakings can provide the defendant with particulars of allegations to be made by the plaintiff in order to permit it to properly defend the action. 3) The Government demanded full particulars of the breach of trust and breach of fiduciary duty. The plaintiff's response does not lay a foundation for either and the paragraphs are struck. 4) The court was satisfied that exemplary damages and punitive damages were synonymous and therefore only one of them should be pled to avoid confusion. The court directed that any reference to exemplary damages should be read as to include punitive damages and that only one phrase should be used. 5) As the cause of action clearly predates the coming into force of The Pre-judgment Interest Act, the provisions of that Act have no application to the plaintiff's claim.

4_2005skqb542.txt

1998 S.H.146123 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: CANADA TRUSTCO MORTGAGE COMPANY and HALIFAX REGIONAL MUNICIPALITY DECISION HEARD BEFORE: at Halifax, Nova Scotia before the Honourable Justice Margaret J. Stewart on June 10, 1998, Special Chambers, 2:00 p.m. DECISION: July 9, 1998 COUNSEL: Joel Fichaud, Q.C., for the plaintiff Michael Moreash,for the defendant Stewart, J.: The plaintiff, Canada Trustco Mortgage Company, ("Canada Trust"), a municipal tax payer paid its property taxes as assessed for the years 1994, 1995, 1996 but on appeal was held entitled to a refund for each of the three years in the total amount of $420,177.13. Canada Trust, pursuant to s. 41(i) of the Judicature Act, R.S.N.S., 1989, c. 240 seeks payment of interest on this amount from the date of the payments and stresses it does not seek the alternative remedy of entitlement to the interest based on unjust enrichment. The facts are not in issue. Canada Trust, municipal taxpayer, in the City of Dartmouth, now Halifax Regional Municipality ("HRM"), the defendant, was assessed for municipal property taxes on fourteen multi-unit residential properties. As required by the Assessment Act, R.S.N.S., 1989, c. 23, Canada Trust paid its taxes as assessed. It appealed its assessments for the years 1994, 1995 and 1996 inclusive. The appeal process ended with the Nova Scotia Court of Appeal, on March 3, 1997, upholding the Utility and Review Board's assessment determination which translated into $420,177.13 overpayment of taxes. Within five months, on September 5, 1997, HRM issued $420,177.13 property tax refund cheque to Canada Trust. HRM earned interest on this money from the time of receipt or had the use of these monies. As noted, Canada Trust seeks interest pursuant to s. 41(i) of the Judicature Act, supra on the refund from the date it made the overpayments to HRM in response to HRM's tax invoices requiring payment of those amounts on the "due dates" in 1994, 1995 and 1996. Section 41(i) reads: In every proceeding commenced in the Court, law and equity shall be administered therein according to the following provisions: (i) in any proceeding for the recovery of any debt or damages, the Court shall include in the sum for which judgment is to be given interest thereon at such rate as it thinks fit for the period between the date when the cause of action arose and the date of judgment after trial or after subsequent appeal. Canada Trust submits s. 41(i) provides an "independent" statutory basis for interest claims on debts and states pre judgment interest is payable from "the date when the cause of action arose" and "the cause of action arose" when Canada Trust was required to overpay its property taxes, thereby causing it to suffer loss. Canada Trust submits it is entitled to compensation for the deprivation. Basically, Canada Trust contends pre judgment is payable on the overpayment of property taxes from the time of remittance for the same reasons pre judgment interest was payable in Cherubin Metalworks Limited v. Nova Scotia (Attorney General) (1995), 1995 CanLII 4314 (NS CA), 137 N.S.R. (2d) 197 (C. A.) where an overpayment of Health Services tax under the Health Services Tax Act, R.S.N.S., 1989, c.198, over period of several years resulted in the trial court and the Nova Scotia Court of Appeal, in an action for unjust enrichment, awarding judgment for substantial overpayment of sales tax and concurrently, under s. 41(i) of the Judicature Act, supra, prejudgment interest on the overpaid sales tax amount from the time of the remittance of the tax overpayment by Cherubin Metalworks Limited. Justice Roscoe, speaking for the unanimous court, at p. 209-11, stressed the court's previous findings that firstly, the purpose of s. 41(i) is to compensate the litigant for the profit he might have made if he had use of the money and secondly, interest is payable under this section on "any sum of money which is recoverable by one party from another, either in common-law or in equity or under Statute" thereby giving the phrase "debt or damages" "very wide" definition. Canada Trust stresses the issue is not when there is an obligation to pay prejudgment interest i.e. upon determination by the Court but rather the issue is when did the facts which if proven in the appropriate proceedings support the cause of action. When did those facts i.e. the overpayment of taxes because the properties were over-assessed happen? Canada Trust cites Cherubin, supra as an example of the trial judge finding an obligation to refund excess taxes in 1994 but awarding the prejudgment interest back to 1988, being the date when the overpaid health taxes were first remitted. HRM paid the refund of overpaid real property taxes to Canada Trust, pursuant to s. 90 of the Assessment Act, supra. Section 90 reads as follows: When person has paid any money on an assessment or rate that is subsequently quashed, reversed or varied as result of which his rates have been overpaid, he shall be repaid by the treasurer out of the general revenues of the municipality the amount overpaid, but if an appeal is taken against the order quashing, reversing or varying the assessment or the rate, the person is not entitled to repayment until the disposition of the appeal. HRM submits s.90 provides tax payer has no right to refund of any overpayment of taxes until the disposition of any appeal of the assessment. It specifically and expressly requires the municipality to refund the amount overpaid and intentionally makes no mention in this or in any other section to paying interest on that overpayment. This lack of obligation to pay interest on an overpayment of taxes, resulting from incorrect assessment, is fact that HRM contends is consistent with similar statutes in other provinces. HRM submits the legislature did not intend other statutory provisions, like s. 41(i) of the Judicature Act, supra, to apply or to be read in conjunction with the Assessment Act, supra. This intention can be drawn from the fact the Assessment Act, supra is complete code and s. 90 specifically is exhaustive in describing clearly what payment the municipality is required to pay, ie. the amount overpaid. No interest payment is authorized, either directly or indirectly, by the Assessment Act, supra and even the refund of taxes cannot be paid until the appeal process is complete. Secondly, the intention can be gained from the very terms or phrases in s. 41(i) of the Judicature Act, supra. Section 41(i) only applies where there is proceeding for the recovery of any debt or damages and it is "mischaracterization" of the various levels of assessment appeals to suggest they are proceedings for the recovery of debt or damages. am satisfied there was no cause of action for return of any overpayment of taxes until after the appeal provisions of the Assessment Act, supra had been exhausted. The Nova Scotia Court of Appeal ruled upholding the reduced assessment in March, 1997. Consequently, the date from which interest is calculated in this action to pursue Canada Trust's right to interest on the amount of the overpayment is upon completion of the appeal process. Appeal proceedings before the Utility Board and the Nova Scotia Court of Appeal were not "proceedings for the recovery of any debt or damages". No amount of money was awarded as judgment for overpayment. Rather, the appeal proceedings were limited to confirming or amending the assessment. At the end of the process, the assessment was reduced and this had the ramification of an overpayment when the taxes were recalculated. No order was provided for recovery of the overpayment. HRM was under direct mandatory statutory obligation, pursuant to s. 90 of the Assessment Act, supra to refund any amount overpaid as soon as the appeal process concluded. As noted in Island Realty v. Corner Brook (City) (1994), 1993 CanLII 7758 (NL CA), 113 Nfld. P.E.I. 198 (C.A.), at this point failure by HRM to repay the overpaid taxes could result in an action for recovery of the overpayment, pursuant to the Assessment Act, supra and interest could be claimed under s. 41(i) of the Judicature Act, supra from the time the overpayment was to be paid. There is no provision in the Assessment Act, supra to pay interest on the overpayment. Section 90 clearly states there is no entitlement to repayment of an amount overpaid until disposition of the appeal. Canada Trust could not bring an action to recover an overpayment from HRM at any time before the decision was rendered on the assessment by the appeal body. Appeal proceedings under the Assessment Act, supra relate to the validity and appropriateness of the assessment and are not proceedings for the recovery of "debt or damages". The taxpayer, Canada Trust, had no cause of action for return of any overpayment of taxes until the appeal provisions of the Assessment Act, supra had been exhausted and resulted in reduced assessment. Unlike Cherubin, supra the payment of taxes were not overpayments at the time they were paid. The payments were simply the payment of taxes on assessment and could not be said to have been overpayments until the conclusion of the appeal process (Zaidan Group Limited v. Corporation of the City of London (1988), 1988 CanLII 4803 (ON SC), 37 M.P.L.R. 261 at 264 (O.D.C. Austin, J., dissenting); (1990), 1990 CanLII 2624 (ON CA), 47 M.P.L.R. at 3(O.C.A.); (1992), 1991 CanLII 53 (SCC), 129 N.R. 227 (S.C.C.)). The date when it could be said to be an overpayment of taxes does not change or revert back to an earlier date when the tax payments were remitted because the appeal process has concluded. proceeding under the Judicature Act, supra does not create debt. There was no right to a refund of overpaid taxes until March 1997 when the Nova Scotia Court of Appeal rendered its decision upholding the reduction in the assessment. An appropriate interest claim does exist under s. 41(i) of the Judicature Act, supra on the principal amount for the five month period between the Nova Scotia Court of Appeal assessment determination in March, 1997, and the payment of the property tax refund, in September 1997, as well as on the unpaid interest until date of judgment. An interest rate of 8.75 % being a rate equatable to the interest rate charged by HRM on overdue taxes (prime plus 4 %) is an appropriate rate on the principal amount of $420,177.13 fro m March 3, 1997 to the date of the refund on September 5, 1997 and on the unpaid interest only from September 6, 1997 to the date of judgment. would ask counsel to make the appropriate calculations and subject to any agreement wil hear the parties as to costs by way of brief written submissions.

The plaintiff paid its municipal property taxes as assessed for three years. On appeal it was held to be entitled to a refund for each of the three years in the total amount of $420,000. The plaintiff, pursuant to s. 41(I) of the Judicature Act, sought payment of interest on this amount from the date of the payments. Awarding 5 months interest, that the date from which interest is calculated in this type of action is upon completion of the appeal process. An appropriate interest claim under s. 41(I) therefore only exists for the five month period between the Court of Appeal's assessment determination and the refund of the property tax five months later.

9_1998canlii1737.txt

1993 S.H. No. 93-6240 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: LLOYD GIBBS, Plaintiff ‑and- CHERYL ARCHIBALD, Defendant DECISION HEARD: at Halifax, Nova Scotia before The Honourable Justice Walter E. Goodfellow on January 9, 10 and 11, 1995 Final medical report tendered by consent February 11, 1995 DECISION: February 22, 1995 COUNSEL: Ronald B. Mitton, Solicitor for the Plaintiff R. Malcolm MacLeod, Solicitor for the Defendant and Alain Begin, Articled Clerk GOODFELLOW. BACKGROUND Lloyd Gibbs, on Saturday, May 30, 1992 operated his motor vehicle west on Greenfield Road and stopped at the then stop line at 'T' intersection with Lower Harmony Road. His evidence is that he looked both ways and then entered Lower Harmony Road travelling south and saw motor vehicle, operated by Cheryl Archibald, travelling north on Old Harmony Road as she crested hill and came into view at point which measures approximately 125 meters from Greenfield Road. His first recollection of observing her was when he says he was completely established on the right side of the road in his own lane. Cheryl Archibald left her home shortly before the time of the accident. She was travelling north on Lower Harmony Road when she crested the hill at the approximately 125 meter mark from the Greenfield Road. She was travelling to pick up bridesmaid in preparation for attendance at wedding at p.m. Her evidence is that immediately after she crested the hill, she found the Gibs van facing her. She was not sure where it had come from, but that it was in her lane, and she thought it must be pulling off to driveway across her path and it still had its left signal light flashing. Ms. Archibald states that she took evasive action to try and go around the Gibs vehicle to her left when she says the Gibs vehicle moved into its lane. She slammed her brakes and tried to move back into her own lane, and the side, front driver's side of the Gibs motor vehicle and her front driver's side came into contact so that she was thrown sideways and the van ended up tipped over. Both motor vehicle operators were alone and wearing seat belts. Ms. Archibald suffered broken ankle necessitating surgery and the insertion of pins, and she has separate action outstanding in relation to her injuries. Mr. Gibbs was taken by ambulance to hospital, and medical evidence indicates he suffered a concussion, hearing loss in his left ear, neck injury, injury to his lower back and injury to his knee which hit the dashboard. There is agreement that it was beautiful day and the accident occurred at approximately a.m. with no interference in visibility, clear, bright, sunny day with no precipitation. 2. MOTOR VEHICLE ACT s. 100(1): "Duty to drive carefully 100 (1) Every person driving or operating motor vehicle on highway or any place ordinarily accessible to the public shall drive or operate the same in careful and prudent manner having regard to all the circumstances." s.101: "Careful and prudent speed 101 person operating or driving vehicle on highway shall operate or drive the same at careful and prudent rate of speed not greater than is reasonable and proper, having due regard to the traffic, surface and width of the highway and of all other conditions at the time existing, and person shall not operate or drive vehicle upon highway at such speed or in such manner as to endanger the life, limb or property of any person." s. 106(1): "General maximum speed 106 (1) Notwithstanding any other provision of this Act, but subject to subsection (2) and Section 109, no person shall drive motor vehicle at speed in excess of eighty kilometres per hour on any highway at any time." s. 110(1): "Duty to drive on right 110 (1) Upon all highways of sufficient width, except upon one‑way streets, the operator or driver of vehicle shall operate or drive the same upon the right half of the highway and shall drive slow‑moving vehicle as closely as possible to the right‑hand edge or curb of such highway, unless it is impracticable to travel on such side of the highway except when overtaking and passing another vehicle subject to the rules applicable in overtaking and passing set forth in Section 115." s. 118(1)(b): "Rules respecting intersection 118 (1) Wherever practicable the driver of vehicle intending to turn at an intersection shall do so as follows: (b) approach for left turn shall be made in the lane for traffic to the right of and nearest to the centre line of the highway and the left turn shall be made by passing to the right of the centre line where it enters the intersection, and upon leaving the intersection by passing to the right of the centre line of the highway then entered and when practicable by making the left turn in the portion of the intersection to the left of the centre of the intersection;" (1) Evidence Findings (a) Lloyd Gibbs Mr. Gibbs is a 46 year old married man. He and his wife have one child, 16 year old daughter who is mentally challenged and presently resides at the Nova Scotia Youth Training Centre. Mr. Gibbs is university graduate with some leadership ability who now occupies the position of Manager Petroleum Gas Fuel Licences for the Province of Nova Scotia in the Department of the Environment. He has, since the accident successfully been elected member of his local school board, and has made considerable public commitment in leadership position struggling to retain the Nova Scotia Youth Training Centre. Overall he impressed me as steady, conscientious person of integrity whose evidence found credible. Mr. Gibbs relates coming to stop at the Greenfield Road and then in the normal way proceeding to turn left. He became completely established on the right side of the Lower Harmony Road travelling south when he saw car crest the top of the hill, after which he noticed it begin to come left of centre to his side of the road and that this happened rather quickly. The Archibald vehicle came completely over into his side of the road, and he says they were facing directly head on. At the last second he whipped the wheel of his van to the right to try and avoid her, but was unable to do so, resulting in an impact head on and more to the left front of his van. He was apparently rendered unconscious and suffered injuries which will review in detail when address the matter of damages. (b) Cheryl Archibald Cheryl Archibald is an intelligent person with responsible position as credit advisor with the Farmer's Credit Corporation, and while do not question her integrity, her credibility in terms of accurate recall of her speed, attentions, distance and response, is questionable. In her evidence she stated that immediately as she crested the hill, she saw the van facing her, and she was not sure at that point where it came from. She assumed it must be pulling off to driveway, and she immediately decided to go around it. It is at this point she says the Gibbs van started to go across into its correct lane, and she slammed on her brakes and tried to move back into her own lane but skidded and came in collision with the Gibbs van. An important finding for the court to make is the point of impact between the two vehicles and Ms. Archibald says it occurred "side, front driver's side front and my front driver's side". She stated her speed was in the mid 70's, 75 to 80 and she gave somewhat of shrug when giving this evidence. Clearly she is guessing. She resorts to the almost time honoured exercise of indicating that she always travelled that stretch of road within the speed limit of 80 km/h and draws the conclusion that she was probably travelling within the speed limit on this occasion. She is very familiar with the area of the accident, and travelled it with frequency when she went to the Agricultural College in Truro, and in the past three years prior to the accident when she was in Prince Edward Island, she was home every second weekend and travelled the road with continual frequency. She was going to pick up friend to attend her best friend's wedding. She acknowledged that she did not see the Gibbs motor vehicle coming out of the intersection so that when she crested the hill, she is acknowledging that the Gibbs motor vehicle had already completed its turn into Lower Harmony Road and was proceeding southward, although with its left signal light still functioning. The distance from when she first observed the Gibbs van is 125 to 128 meters. She explains that there was some confusion in her mind as to what the Gibbs van was doing, and she thought it might be turning into laneway on her right hand side. This confusion arose at the instance of observation, and if she was going at the reduced speed she indicates, below the speed limit, reduced by her removal of her foot from the gas peddle, then it's extremely difficult to understand why she did not brake to control her vehicle unless, of course, she did not keep proper lookout and only observed the Gibbs motor vehicle at the last moment or more likely did not have anywhere near the amount of time that she says existed due to much higher rate of speed than she realized. Ms. Archibald gave statements, and her explanation as to the difference in her earlier statements with respect to speed is that they were given when she was on medication, however, the accident was May 30, 1992 and her statements were given June 10th and 11th, 1992. The surgery on her ankle was performed on May 30th or June 1st and she was released from hospital at that time. The statement in her own writing, June 11, 1992 says: was travelling at about 70 km/hr. along straight stretch and then began to slow down before the crest. always do this because know the area, and just beyond the crest you have the Greenfield Road on the right. When crested the hill, would say had slowed down to about 60 km/h. At that instant saw van facing me on my side of the road. assumed he had come from the Greenfield Road, and his left blinker was on. hit the brake, didn't know what he was planning on doing, so began to veer to the left." She went on to relate, in that statement, that the collision was left front to left front. In the statement given the 10th of June, 1992 she said: went about or miles and you are on straight stretch and then you crest small hill. Roughly 300 feet from the top of the hill is the Greenfield Road. This is intersection with the road was on. was travelling roughly 60 or 70 km per hour on the top of the hill because had slowed because know this is bad intersection. had been doing roughly 70 to 80km/h before the top of the hill. When came over the hill remember seeing the front of the van and his blinker on. He was on my side of the road. thought he might be pulling into the side of the road on my side. really wasn't sure what he was doing so went left. also hit my brakes." (c) Alan C. Golding Mr. Golding is the Director of Traffic Engineering for the Department of Transportation, and his letter of June 15, 1993 was entered by consent. The Department of Transportation conducted an investigation in late May, 1993 and made certain recommendations and conclusions, including: "3) Crossing sight distance measurements indicate that approximately seconds is required for vehicle to move from the stop location on the Greenfield Road approach to position fully occupying the correct (right hand) lane on the Lower Harmony leg of the intersection. Based on the prevailing speed limit of 80 km/h, an approaching vehicle would have approximately 5.6 seconds to react to vehicle entering the road; in effect, the crossing sight distance is more than adequate for the left turn manoeuvre from the Greenfield Road to the Lower Harmony leg of the intersection ..." (d) Avard Palmer Mr. Palmer is an experienced auto body repair person, and he purchased the Gibbs van for $2,300 in August, 1992. He noted the damage to the vehicle as shown in photographs taken at the salvage yard, and indicated the left hand skirt was damaged and shoved into the right and that it appeared to him the force was through the wheel. He described what was necessary to replace and repair the motor vehicle for its subsequent sale by him or weeks later. He acknowledged there was damage to the left front assembly light of the Gibbs van and to the hood. (e) Sgt. Geoffrey M. Tucker, R.C.M.P. Each side called an expert, both of whom possessed their own particular strengths. Mr. Gibbs called Sgt. Geoffrey Tucker of the R.C.M.P. who was qualified as an accident reconstructionist. He has taken the highest level courses available to R.C.M.P. officers in this field, and is member of the National Association to which accident reconstructionists belong. He has extremely wide experience with respect to the practical side of accidents in his many years of police service, predominantly in the highway traffic field. Overall, his approach to the reconstruction was done conservatively. His analysis based upon reviewing all of the police file, photographs, attending at the scene with the investigative Cst. and Mr. Gibbs, etc. included some experimentation on site particularly in relation to the angle at which the Gibbs van might be at the point of impact. He reviewed in detail, and his report is part of the record, various factors that are examined in accident reconstruction including the accident location, impact point, extent of damage to both vehicles, location of damage, final resting place of the vehicle, topography, particularly the unobstructed view, measurement and location of the skid marks and the direction, etc. f) Professor J. David Innis was impressed with the qualifications and professionalism of Professor Innis, who is also member of the National Association. He had certain material, including the discovery transcripts, not resorted to by Sgt. Tucker. On the other hand, he did not conduct any on‑site simulations or experiments. accept Professor Innis' advice that the drag slide to stop test conducted by Sgt. Tucker would not give you an accurate estimate as to the speed at the time of impact by taking straight mathematical deduction from the estimated speed. Sgt Tucker used the drag sled test to determine, in Sgt. Tucker's view, that if Ms. Archibald was going at the speed she indicated, he concluded the speed at impact would not cause anywhere near the extent of damage, and in his calculations Sgt. Tucker, as Professor Innis pointed out, used drag sled to stop test. You cannot use this test and simply deduct the speed at impact from the estimated speed as calculated by Sgt. Tucker. Professor Innis indicates substantial angle must have existed at the point of impact based upon his examination and interpretation of the material made available, including the photographs, and he concludes that the point of impact was on the left front wheel of the van consistent with substantial angle. In simple terms he draws the conclusion that at that angle, Mr. Gibbs must have been coming from Ms. Archibald's side of the road at the point of impact. He says this confirmed by the van's final location. He also draws conclusions that support the speed estimate advanced by Ms. Archibald, and he draws strength from Mr. Gibbs' statement that he had travelled up the hill and observed, for the first time, the Archibald vehicle at point which would not be consistent with theft combined speeds. Quite possibly Mr. Gibbs is out slightly in his conclusion as to when he first observed the Archibald motor vehicle, and it probably was at point closer to the completion of his turn. Nevertheless conclude that Gibbs, at the time of impact and immediately prior was travelling entirely within the south lane of the Lower Harmony Road, and just prior to impact sharply turned his wheel to the right in forlorn attempt to avoid the oncoming Archibald vehicle. Professor Innis noted the "Lower Harmony Road at the intersection is quite curved. In fact, the radius of the horizontal curve is in the order of 200 meters." The diagram provided shows that from the crest of the hill Ms. Archibald would be entering curve which is more pronounced at the intersection, but nevertheless she would likely have followed the natural tendency of going into the curve close to the centre line. The evidence of the parties is significant in respect to their view as to the point of impact, and it is much more of head‑on feature than is accounted for by Professor Innis and my conclusion on the physical evidence. Discovery evidence of Ms. Archibald tendered shows that when asked, "what part of the van did you hit?" she responded, "A. Driver's side front corner." "Q. Would you describe this as head‑on collision or how would you describe it? A. My, not direct, umm ... it depends on how you describe head‑on. A. Like full full force, no, it was my corn ... front driver corner and his .... Q. Yeh, your your your front driver's corner .... A. Yes. Q. And his front driver's corner. Q. So short of a, umm ... half half way over sort of thing. Yes." This is consistent with her evidence before me, and accept and prefer the evidence of Sgt. Tucker with respect to the interpretation to be placed upon the physical damage to the vehicles. Professor Innis put his weight substantially on photographs of the vehicles at the salvage yard, and there has been some appreciable change in the Archibald vehicle, particularly in the location of the front bumper which, quite probably incurred through its being towed to the salvage yard. In any event Sgt. Tucker pointed out that the left front tire of the van appears to be undamaged other than what appears to be one or two scrapes which may or may not have occurred in the accident, and there is almost no perceptible or identifiable damage to the rim or chrome hub cap. Sgt. Tucker was able to advise that on previous occasion. he accidentally dropped chrome hub cap similar to the one on the Archibald vehicle from waist‑high position and it shattered. It is inconceivable that the chrome hub cap would not have shown some signs of damage if the point of impact had been as suggested by Professor Innis. Nevertheless, all the photographs consistently show no damage to the chrome hub cap or wheel. Professor Innis' explanation that circular damage on the Archibald vehicle is where the Gibbs' van left front wheel stuck is not accepted. prefer the evidence of Sgt. Tucker, and my own assessment is that when the Archibald vehicle had its brakes locked and came into impact, it would have had the weight bringing the front end of the Archibald vehicle down, making it far less likely that the damage could be anywhere near as high as the impact point suggested by Professor Innis. With respect to the effect upon the van, there would have been, as Sgt. Tucker indicated, lifting force particularly given the higher relative speed of the Archibald vehicle. conclude that the point of impact was far more probable at the front of both vehicles. Such conclusion changes the angle upon which much of Professor Innis' conclusions are based. In addition the lifting effect gives some explanation to the final resting position of the van on its side, and my conclusion is reinforced by the practical simulations of Sgt. Tucker. Sgt. Tucker acknowledges that if Professor Innis' angle conclusion was accurate, it would have meant that Mr. Gibbs would have started his turn shortly before impact out of Ms. Archibald's lane, however, am satisfied from the evidence of Mr. Gibbs that he in fact was entirely within his own lane at the time of impact, and had been there from shortly after cutting, to at least the normal extent, the corner from the Greenfield Road into the southbound lane of the Lower Harmony Road. There is complete agreement that the point of impact between the vehicles is well within the southbound lane. consider that Sgt. Tucker, with his vast experience of attending at actual accident scenes, has given much preferred and more probable conclusion of the impact point on the vehicles from the inspection of the actual damage, and that his conclusion is consistent with the evidence of parties. On the balance of probabilities find that the impact occurred not only in Mr. Gibbs' southbound lane, but left front to left front, and that given the time available to her, Ms. Archibald was not driving at prudent rate of speed nor maintaining prudent lookout so that after cresting the hill, she ought to, in these circumstances, have been able to control her vehicle by driving at more prudent rate of speed and slowing down on visually sighting the Gibbs motor vehicle. Ms. Archibald was not justified entering the opposing lane of traffic solely because the Gibbs motor vehicle's left‑hand turn signal was still flashing when she first observed it in close proximity to the intersection. Ms. Archibald, on cresting the hill, had between 125 and 128 meters to the extension of the Greenfield Road at the intersection, and approximately 103 to 106 meters to the point of collision. Professor Innis indicated that the present design standard for sight distance to an intersection is 140 meters. Ms. Archibald was familiar with the limitations of sight caused by the hill, which are dramatically shown in the photographs, and there is further acknowledgment of the limitation of sight distance approaching the crest of the hill and she said "I was travelling at about 70 km/hr along the straight stretch, and then began to slow down before the crest. always do so because know the area and just beyond the crest you have the Greenfield Road on the right". Any driver approaching blind crest, such as this, must exercise reasonable, prudent level of care, and while Ms. Archibald may well have exercised such on past occasions, conclude that she failed to do so on May 30, 1992. Had she driven in prudent manner, she could have carried on at reduced speed in her own lane without coming in contact with the Gibbs motor vehicle. Conclusion: The onus is upon Mr. Gibbs to establish negligence on the part of Ms. Archibald and on the balance of probabilities he has fully met that onus. I conclude that Ms. Archibald's inattention, coupled with a probable higher rate of speed than she estimates, renders her solely responsible for this accident, and she was not justified in entering the lane of opposing traffic. am unable to conclude any contributory negligence on the part of Mr. Gibbs. DAMAGES Pre‑Accident Health Lloyd Gibbs born March 26, 1948 was 44 at the time of this accident and he is now 46. His family physician, Dr. Roger H. Cook, reported November 11, 1993: "Mr. Gibbs back problems did not begin with the motor vehicle accident. Prior to the accident he had history of episodes of low back pain about once per year. They typically lasted three or four days with each flare‑up and were not associated with feeling of spasm. There was never any radiation of pain with these episodes." Mr. Gibbs had no neck or left knee complaints prior to this accident. In 1988 Dr. Cook referred Mr. Gibbs to Dr. Keith Walling, an ear specialist, who reported March 11, 1988: "Many thanks for referring this gentleman who was found to have some abnormality in his left ear. As far as his ears are concerned, he is asymptomatic." Dr. Walling's examination in 1988 made reference to mild tonsillitis, but there was nothing of significance found with respect to his ears. Post this accident Mr. Gibbs has had problems with his neck, left knee and exacerbation of his lumbar pain and hearing loss in his left ear. His recovery has been interfered with and delayed due to his undergoing coronary by‑pass surgery in April, 1993, however, Dr. R.W. Landymore reported October 1, 1993: "Although it is possible that the trauma resulting from this accident may have aggravated his coronary symptoms and/or precipitated the heart attack, the underlying coronary artery disease was, undoubtedly, present for some years preceding the motor vehicle accident." Medical Evidence Dr. Roger H. Cook, Family Physician 1. Report dated June 29, 1992 Mr. Gibbs' complaints on June 1, 1992 were of dizziness and stiff sore neck. Neck x‑rays disclose no abnormalities. Dr. Cook next saw Mr. Gibbs June 5th and his complaints were dizziness, headaches and sore neck. Dr. Cook reported: 'There was no tenderness on examination of his neck but he did have moderately limited range of motion particularly on moving his head to the right." His neck remained quite painful particularly this time on lateral flexion to the left. He was having difficulty sleeping due to the pain in spite of the use of soft collar. He was started on medication, Imipramine, to try to relieve the pain and improve his sleep. As of the 17th of June there was no change in his neck pain." "At this point my working diagnosis with Mr. Gibbs is of concussion and muscular and/or ligamentous neck injury." "I would anticipate that his problems will resolve completely, probably within the next few months but obviously such an estimate is very rough." 2. Report October 26, 1992 Dr. Cook commented: "I saw him on the 23rd of September 1992 at which time he complained of pain and grinding in his left knee." "He had an x‑ray of his left knee which was reported as normal. When saw him next on the 29th of December he described somewhat different sensation, more of burning numbness over the knee and he felt that there was point in which he could press which would exacerbate this discomfort. Neither he nor were able to demonstrate the trigger point in the office. At the moment am suspicious that he had minor nerve injury perhaps resulting in neuroma which is benign growth at the end of the severed nerve and which is responsible for the pain." 3. Report of November 11, 1993 Dr. Cook commented: "Mr. Gibbs most recent visits with me were October 20, 1993 and November 2, 1993." “1) Neck Mr. Gibbs continues to have pain in his neck severe enough that it sometimes wakes him through the night." "On examination he has normal range of flexion with mild discomfort. He has about 80% of normal extension during which he complains of grinding and pain in the center of his neck. Rotation to either side is about 75% normal range again with grinding and pain? "An x‑ray of the cervical spine in May of 1992 was reported as showing significant disc space narrowing at the C5‑6 level and osteoarthritis at that same level." “2) Left Knee ... Sitting and walking are not uncomfortable except for the continued numbness. On examination there was an inconsistent decrease in pinprick sensation over small area around the lower outer edge of the kneecap. He has normal strength in the knee and about 95% of normal flexion of the knee with puffing and burning sensation described by the patient with attempt at full flexion. There are no palpable nodules and was not able to identify any trigger point. An x‑ray of the left knee September 25, 1992 is reported as showing no bony or soft tissue abnormality other than slight deformity of the proximal left fibula suggesting an old fracture." “3) Low back ... Since the motor vehicle accident he has had three episodes of severe back pain, the first lasted two weeks, the second two or three weeks, and the third now about weeks duration and continues. There is no radiation of his pain. The flare‑ups of pain since the motor vehicle accident have been more severe than those prior to the accident. At present he has pain with sitting for more than about 15 minutes. He has to shift position in order to relieve the pain. On examination there was tenderness over the high left lumbar paraspinal muscles. He had normal range of flexion in that he was able to reach his toes. Extension of his low back was limited to about 1/2 of normal range due to pain at the upper lumbar level. There was no radiation of this pain. He has normal lateral flexion but with pain and normal rotation with mild discomfort. His reflexes in lower limbs are normal. Straight leg raising on each side is to 90 degrees with no pain. An x‑ray of his lumbosacral spine is reported as showing narrowing of the L4‑5 and L5‑S1 disc spaces consistent with degenerative disc disease and osteophytic spurring particularly at the L5 and Sl levels indicative of osteoarthritis." "In summary, believe that Mr. Gibbs has experienced significant exacerbation of pre‑existing problem with osteoarthritis and degenerative disc disease at the lumbar and cervical level as result of his motor vehicle accident. The problem with his knee also appears to be directly the result of the accident. suspect that the cause here is neuroma as described in my previous letter to you." Dr. Keith Walling, Ear Specialist 1. Report July 6, 1992 Dr. Walling reports: "he has been extremely dizzy although recently this has settled down much more. His wife has, since the motor vehicle accident, been complaining that he has the TV up rather loudly. He does not suffer any tinnitus. He does not have any history of hunting or other noise damage in the past." "Neurologically, could not find any abnormality and audiologically he has moderate to severe high frequency sensorineural loss in the left ear," This gentleman is suffering from post concusional vertigo. He seems to be making very rapid recovery. It would seem that concurrent with this, he has suffered some damage to his hearing." 2. Report of August 26, 1992 Dr. Walling reports: saw him initially in 1988, at which time his ears were normal apart from slight degree of retraction on the left side." Following this injury, he was extremely dizzy but, when saw him week after the accident, he was already beginning to get over the dizziness but it was noted by his wife and by himself, that he had some hearing loss. did an audiogram on him on July 6th, copy attached. As you can see from this, he has high frequency left sided sensorineural loss. He did not give any history in either examination of noise exposure and, in 1988, he did not have any subjective hearing loss symptoms. As this gentleman experienced hearing loss following the injury and suffered from vertigo and the hearing loss was also noted by his wife following the injury, should be as certain as can be that he suffered from post concussional vertigo, along with concussion to his inner ear and would say that his hearing loss is likely to be permanent in the left ear." 3. Report of November 2, 1992 Dr. Walling reported: "Repeat audiometric studies show his hearing loss to be exactly what it was when saw him in July and would think therefore that the level of hearing that he has at the moment, is going to be permanent." 4. Report of December 12, 1994 Dr. Walling reported: "... am not aware of any other possible cause for this gentleman's high frequency predominantly left sided sensory neural hearing loss other than his MVA and head injury after which all of his current symptoms arose." Dr. Michael Gross, Orthopaedic Surgeon 1. Report September 18, 1992 Dr. Gross reported that Mr. Gibbs was aware he had pain in his left knee from hitting the dashboard, and he went on to report: "SYMPTOMS ARISING FROM THE ACCIDENT: Neck Pain: The neck pain started on the day of the accident. It became worse over the next two to three days. He was treated with collar which he wore for three weeks. He now finds that the neck pain is episodic. It never actually goes away, but varies in severity. The neck pain makes his head feel very heavy. He cannot stay in one position for long and supports his head while watching T.V. He has dull heavy pain when he sits in one spot for prolonged periods of time. The patient has received physiotherapy for this complaint, which has resulted in the relief of pain for two to three days. Vertigo: The patient has been subject to attacks of severe dizziness. He has fallen down couple of times as result of this and noticed that the vertigo is associated with nausea. These attacks lasted for one and half months. They slowly improved after that and they have now disappeared. He was seen and assessed by Dr. Walling for these complaints. Hearing: The patient notes that he uses his left hand to his ear to enhance his hearing ability. His T.V. is turned up in volume to the point where his wife objects. He has found it difficult in general to hear as well since his accident." Dr. Gross also reports: "The patient admits to having had back pain in the past. It has been localized over his lower lumbar spine. He, in the past has been immobilized with the pain and has been taken by ambulance to hospital. The lower back pain is still bit of problem and depends on whether he strains, has big meals or is under lot of stress." Dr. Gross noted Mr. Gibbs' concerns with respect to difficulties with sleeping for which he takes medication and that he is unable to cut wood or landscape and found it difficult to clear snow. Dr. Gross' examination indicated reduced rotation of his cervical spine, pain in the right shoulder, decreased sensation on the back of his right hand, however his lumbar spine exhibited full range of motion. It was noted that his left knee demonstrated decreased sensation. Dr. Gross reviewed x‑rays and the CT scan noted cervical spine revealed degenerative disk disease at C5‑6, and Dr. Gross concluded Mr. Gibbs suffered severe injury to the soft tissues of the cervical spine with pre‑existing degenerative disease being exacerbated. Fortunately, the vertigo had abated. Dr. Gross' prognosis was that it would likely take one to two years before Mr. Gibbs' neck complaints settled down. That he will likely have residue neck stiffness, neck pain which will be exacerbated by any form of heavy activity or exertional activity and this exacerbation may come about by weather changes or with prolonged sitting in one position. 2. Report January 30, 1995 Dr. Gross reported: 'There is no sign of specific nerve root irritation in either his cervical spine or his lumbar spine, and this would seem to indicate that his back pain has been caused by post traumatic exacerbation of his disc degeneration but hasn't progressed to irritate nerve at the present time. The natural history of such back and neck pain is for symptoms to decrease in severity with the passage of time; that time being 2‑5 years on average. Surgical intervention in these cases has not met with the resounding success, and therefore is unlikely to be recommended for this individual. There is no sign of serious instability in the lumbar spine that would be one of the major indications for surgery when there is no evidence of nerve root involvement. The patient will likely therefore to (sic) continue to suffer episodes of back pain, but as he accepts and adapts to his back pain he find (sic) that with the passage of time he is able to do little more in the way of exercise which would be walking or swimming. He is unlikely to get back into full exercise regime such as chopping and splitting wood, looking after dogs, etc; activities which he previously enjoyed. The patient's knee injury has left him with some confusion or bruising of the nerve but not complete section of the nerve. This (sic) symptoms may improve with time, as the nerve regenerates, but do not think that this is major disability and has not resulted in any major arthritic degeneration in the knee. He is able to compensate for these symptoms to limited degree by using kneeling pad, but direct irritation of the area continues to upset him and give him pain. Again think these knee symptoms will slowly resolve with the passage of time, but over the next 2‑5 years he is not going to be able to return to his previous level of physical activity. Mr. Gibs complaints and prognosis with respect to his hearing loss has been extremely well covered by Dr. Walling." 5. HEARING ASSESSMENT Mr. Gibbs indicated and accept he had no hearing limitations prior to this accident. Dr. Walling's evidence clearly establishes Mr. Gibbs suffered high frequency left sided sensorineural loss which is likely to be permanent. The degree of impairment is described by Dr. Walling as "the degree of loss that he has will give him moderate degree of permanent deafness particularly in situations with background noise or in group conversation". The opinion of Dr. Walling is consistent with Mr. Gibbs' evidence that it is not total loss of hearing but partial which Mr. Gibbs went on to describe as "more aggravation as hear dull sounds, irritable". The first complaint was by his wife that he had the T.V. on too loud and Mr. Gibbs had trouble with background noise such as dishes in the kitchen, or at meeting. He might face some strain and some "pardon me's". There is no indication that he has lost total hearing or that the hearing impairment interferes with his substantial distance driving of motor vehicle et cetera. The loss he has is permanent and the major difficulty have in assessing damages at an appropriate level is that do not have any evidence of the degree of impairment or yard stick which would make comparison principally with other cases somewhat more reliable. In this case initially Dr. Walling mentioned he did not suffer tinnitis (Report August 26/92) but subsequently complained of it on October 21st, 1992 (Walling Report, November 2/92). Although Dr. Walling noted "this apparently is not too bad but he did not notice this before". Mr. Gibbs did mention some difficulties with balance. Dr. Walling did not mention tinnitis in his final report (December 12/94) nor did Mr. Gibbs in his evidence. Care must always be exercised in utilizing awards in other cases as obviously no two injury situations nor the impact of similar injuries are likely to be identical. The cases referred to are of little comparison as they indicate global awards or specific factual loss i.e. 60% of hearing in one ear et cetera. Tims‑Loveless v. Novotony (1991), 1991 CanLII 4318 (NS SC), 110 N.S.R. 2d 85 cited by Mr. Gibbs' counsel is of very minimal assistance. Mrs. Tims had pre‑existing hearing problem and consented to surgery with the unfortunate result she suffered total hearing loss in her left ear. The decision does not mention her age or overall degree of impairment prior to surgery, although it does indicate her hearing was deteriorating and at sometime in the future she would likely reach very severe hearing disability in any event. Justice Richard assessed damages at $15,000.00 however it was global assessment covering loss of amenities, inconvenience, pain and suffering, and loss of sick leave. The loss itself was incurred by her in 1984. I conclude in this case a reasonable award for the permanent hearing impairment suffered by Mr. Gibbs which will continue to be a source of concern, irritation and aggravation but where there is no evidence that it will lead to a total loss of hearing in his left ear or any acceleration of further loss of hearing in the left ear is the amount of $8,500.00. LEFT KNEE Mr. Gibbs indicated that his knee impacted the dash resulting in small cut and he experienced searing pain as if he had been cut with knife. He experienced some grinding and said that he had learned to live with the knee and expected he might have to have surgical removal of some scar tissue. Mr. Gibbs had no problem with his knee prior to the accident and it has neither improved or deteriorated. Mr. Gibbs was telling it the way it is and was not exaggerating and he should be compensated for the past, present and future pain and aggravation he will sporadically incur. It is to be noted however that Dr. Cook in his final report indicated Mr. Gibbs has normal strength in the knee and about 95% of normal flexion. Dr. Gross felt the symptoms may improve with time as the nerve regenerates and he did not classify this as major disability nor has it resulted in any major arthritic degeneration in the knee. Dr. Gross felt the knee symptoms will slowly resolve over the next two to five years. He was not going to be able to return to his previous level of physical activity. For past, present, and future limited pain suffering inconvenience interference with the amenities previously enjoyed by Mr. Gibbs I assess damages at $2,500.00. 7. NECK LOWER BACK Dr. Cook in his final report of April 11/93 found normal range of flexion with mild discomfort and about 80% of normal extension with rotation to either side at about 75% of normal range but with grinding and pain. It is clear therefore that Mr. Gibbs has only limited restriction of neck movement. Such movement brings forth pain. Dr. Cook put the pre‑existing back problem in proper perspective when he considered the accident to be significant exacerbation of pre‑existing problem with osteoarthritis and degenerative disk disease at the lumbar and cervical level. Dr. Gross the orthopaedic surgeon found no sign of specific nerve root irritation in either his cervical spine or his lumbar spine and he expressed the views that the natural history of such back and neck pain is for symptoms to decrease in severity with the passage of time. Dr. Gross in his final report indicated that overall Mr. Gibbs' complaints had not improved and would likely continue. However, he felt that there was less than 10% chance of surgical intervention being required for his neck and back complaints. Dr. Gross also noted that the accident interfered with Mr. Gibbs having proper exercise regime following his cardiac surgery. Mr. Gibbs pointed out that he does lot of driving and while it has been reduced somewhat it is clear that he is coping as he drives considerable distance on an annual basis in his employment. He wore cervical collar initially for about three weeks, and overall he expressed the view that he cannot honestly say that his neck has gotten any better. He also notices frequent flare ups with respect to his back whereas they were sporadic before the accident. He missed some time from employment but there is no loss of income claim advanced. His day to day routine prior to the accident was one of fairly active outdoor individual. He often split his own wood, looked after his lawn, snow removal, wallpapering, painting, whipper snipping, and many of these activities are limited or beyond his present capacity. He and his wife used to have Irish Setters and have had as many as thirteen dogs which required great deal of work in cleaning, grooming, exercising, travel et cetera, and he has had to give up this great pleasure, and he and his wife are now down to one dog. He had been dog breeder since 1970 and was member of the Cobequid Dog Club. It was major hobby and love of his. He used to go fishing half dozen to ten times year and this is no longer possible. He indicated he did lot of swimming and other activities with his mentally challenged daughter and said that this was pretty well curtailed, however, it is pleasing to note Dr. Gross' final report indicates that with the passage of time he will be able to do little more in the way of exercise which would be walking or swimming, and post this accident he has put swimming pool in his backyard. am optimistic that he will be able to do some of the things he did prior to the accident but not those involving any heavy lifting, such as snow shovelling, most activities relating to dog raising et cetera. have already commented that on discovery he indicated travel in the range of 60,000 to 70,000 kilometres per year which at trial he thought might be little on the high side and it might be as low as 40,000 to 50,000 kilometres which nevertheless shows considerable capacity on the part of Mr. Gibbs to live with his difficulties. He utilizes no seat or cushion for driving purposes. He had quadruple heart by‑pass but experiences no difficulties or problems now. However, it is noted he carries an excessive amount of weight. He put in wooden deck around the pool after the accident but the work was done predominantly by his father. He goes to dog shows now, but more in the nature of social outing. To his credit Mr. Gibbs has been involved publically in leadership capacity with respect to the possible retention of the Nova Scotia Youth Training Centre and he is also post the accident been elected to the local School Board. Overall was impressed with Mr. Gibbs as one who will make every effort to overcome and compensate for the continuing significant difficulties he suffers as result of this accident. We have therefore, situation where Mr. Gibbs has suffered cervical injury which has not been labelled mild, moderate, severe, or one, two or three. However, the pain and suffering that he has endured to date, and will sporadically continue to endure, coupled with the interference with his lifestyle and loss of amenities brings this whiplash injury close to severe designation when it comes to the range of damages referred to by our Court of Appeal: "In Smith Stubbert (1992), 1992 CanLII 2554 (NS CA), 117 N.S.R. (2d) 118 considerable guidance was given to the trial justices by Chipman, J.A. at page 127: "I have considered number of recent cases involving damage awards for injuries not unlike those sustained by the respondent. Most are cases dealing with that small percentage of people who do not recover from soft tissue injuries of the neck but suffer long‑term discomfort which almost invariably brings on emotional problems. Some of the cases dealt with other injuries in addition, and others dealt with injuries of different nature but having the common feature of long‑term chronic pain. No two cases are alike and even similar injuries will impact differently on different people. In the cases reviewed, the symptoms persisted and usually many doctors were involved in the treatment and/or assessment of the injuries. Each case was decided by different court at different time and precise range of awards cannot, with precision, be laid down. In broad terms the range for nonpecuniary damage awards for such persistently troubling but not totally disabling injury is from $18,000 to $40,000." "Chipman, J.A. also added: In dealing with nonpecuniary awards it is useful to keep in mind what Dickson, J. speaking for the Supreme Court of Canada said in Andrews v. Grand and Toy (Alberta) Ltd., 1978 CanLII (SCC), [1978] S.C.R. 229; 19 N.R. 50; A.R. 182; 83 D.L.R. (3d) 452; [1978] W.W.R. 577; C.C.L.T. 225, at p. 261: 'There is no medium of exchange for happiness. There is no market for expectation of life. The monetary value of nonpecuniary loss is philosophical and policy exercise more than legal or logical one. The award must be fair and reasonable, fairness being gauged by earlier decisions; but the award must also of necessity be arbitrary or conventional...' Here, there is the added dimension of the exacerbation of pre‑existing lower back problem. find it impossible to separate consequences of the whiplash injury generally and the exacerbation of suffering attributable to his low back. will assess damages covering both aspects as did in King versus Leahey (1992), 109 N.S.R. (2d) 163. The interference with Mr. Gibbs' quality of life is more severe in this case than it was in King versus Leahey supra. I conclude for nonpecuniary damages under this heading for his past, present and future pain and suffering, loss of amenities, interference with his active lifestyle et cetera a reasonable award of general damages is $31,500.00. 8. PREJUDGMENT INTEREST The awards of general damages of $8,500.00, $2,500.00 and $31,500.00 will bear prejudgment interest at 2.5% from the date of the accident May 30, 1992, to date. 9. LOSS OF FUTURE EARNING CAPACITY conclude the evidence does not support an award of damages for diminution of earning capacity in the future, the setting of damages for this was recognized by the late Morrison, J., in Poirier Malcolm (1981), 47 N.S.R. (2d) 616 where at pp. 627‑628 Morrison, J., stated: 'This being case of diminution of earning capacity which is incapable of precise calculation rather than complete loss of earning capacity feel that the question of damages for future pecuniary loss of earnings should be included as an item under general damages." The evidence in this case is unlike the evidence in such cases as: "King v. Leahey (1992), 109 N.S.R. (2d) 163 ($20,000), Nicholson v. Attorney General et at. (1992), 1991 CanLII 4275 (NS SC), 110 N.S.R. (2d) 181, confirmed on appeal (1993), 1992 CanLII 2527 (NS CA), 117 N.S.R. (2d) 46 ($21,000.00), Smith Gardiner (1992), 112 N.S.R. (2d) 64 ($42,000) and Newman and Fraser LaMarche (1994), 1994 CanLII 4343 (NS SC), 131 N.S.R. (2d) 165, confirmed on appeal ($26,000)." In this case Mr. Gibbs is continuing in his employment, in his chosen field, with very high probability of continuation of his employment in the nature and area of employment of his choice. Such circumstances do not warrant any conclusion of any possible limitation or diminution of his employment horizon that would warrant compensation. COSTS Counsel are entitled to be heard on costs and disbursements, and if they are unable to agree am prepared to tax the same. would ask that they file and exchange any representations by March 13th, 1995.

The 46-year-old male plaintiff suffered damage to his knee, left ear and exacerbation of a back problem when his vehicle was struck by the defendant's vehicle. Finding the defendant solely at fault, that evidence from the accident reconstruction as to the angle of impact supported a conclusion the defendant was travelling faster than she realized and was inattentive. Damages were set as follows: impairment to hearing in left ear assessed at $8500, damage to left knee assessed at $2500. Exacerbation of a pre-existing back condition which produced consequences in the severe range was assessed at $31,500.

b_1995canlii4505.txt

J. Q.B. A.D.1995 No. 1449 J.C.R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: KENNETH YEE -and- HER MAJESTY THE QUEEN RESPONDENT M.R. Walker for the appellant M.M. Vass for the respondent JUDGMENT GEATROS J. October 17, 1995 Kenneth Yee was charged that he, "on or about 22nd June,1994, at or near Regina, Saskatchewan, did commit an assault onDavid Remage contrary to Section 266 of the Criminal Code". Aftera trial before a judge of the Provincial Court, he was convicted ofthe charge. He now appeals. Besides the complainant and the accused, another person was present at the time of the incident out of which the charge arose. He is Kim Wall, who was the only person other than the complainant and the accused who testified at the trial. He was Crown witness. The appellant's main contention arises out of what the trial judge said at the conclusion of arguments by counsel: After hearing the evidence that came to the Court, that the Crown evidence is credible and do not find the Accused's evidence credible. Therefore find him guilty as charged. Mr. Walker argues that the necessary implication is that the trial judge took into account only the evidence of the complainant David Remage and the accused, to the exclusion of Mr. Wall. Hiscontention, as I understand it to be, is that the trial judge soconcerned himself with the question of the credibility of theevidence of the complainant and the accused that he overlooked hisduty to consider such evidence, "together with the rest of theevidence, with a view to determining whether it raised a reasonabledoubt of the appellant\'s guilt, irrespective of whether he believedthe evidence of the (complainant)": per Sherstobitoff, J.A. in R. v. S.(T.), (1995) 1995 CanLII 3957 (SK CA), 98 C.C.C. (3d) 529, at p. 563. Here the trial judge did not, I suggest, say that he foundthe accused guilty only upon the credibility of the evidence ofthe complainant and the accused. He said he found the Crown\'sevidence to be credible, and the accused\'s evidence not to becredible. The Crown's evidence was comprised of both the complainant and Mr. Wall. As consequence am not persuaded that the trial judge overlooked his duty in the context of the passage from the judgment of Sherstobitoff J.A. in R. v. S.(T.), supra. Also, at p. 563 in the report of that case, Sherstobitoff, J.A. stated: This court has repeatedly affirmed the importance of taking into account the special position of the trier of fact on matters of credibility: White v. The King (1947), 1947 CanLII (SCC), 89 C.C.C. 148 at p. 151, [1947] S.C.R. 268, C.R. 232; R. v. M.(S.H.) (1989), 1989 CanLII 31 (SCC), 50 C.C.C. (3d) 503 at pp. 548-9, 1989 CanLII 31 (SCC), [1989] S.C.R. 446, 71 C.R. (3d) 257. The trial judge has the advantage, denied to the appellate court, of seeing and hearing the evidence of witnesses. However, as matter of law it remains open to an appellate court to overturn verdict based on findings of credibility where, after considering all the evidence and having due regard to the advantages afforded to the trial judge, it concluded that the verdict is unreasonable. Great deference to findings of credibility made at trial should be shown. Upon a consideration of all the evidence inthe transcript thereof, and "having due regard to the advantagesafforded to the trial judge", it cannot be said his findings arenot supported by the evidence, nor can it be said his conclusionsare clearly wrong so as to make the conviction unreasonable. See: R. v. Andres 1979 CanLII 2238 (SK CA), [1982] W.W.R. 249 (Sask. C.A.). In the result, the appeal against the conviction isdismissed, and accordingly affirmed.

The accused was convicted of assault. He contends that the trial judge so concerned himself with the question of credibility of the complainant and the accused that he overlooked his duty to consider evidence of a witness, 'together with the rest of the evidence, with a view to determining whether it raised a reasonable doubt of the appellant's guilt, irrespective of whether he believed the evidence of the complainant.' HELD: Appeal dismissed and conviction accordingly affirmed. 1)Great deference to findings of credibility made at trial should be shown. 2)The trial judge did not say that he found the accused guilty only upon the credibility of the complainant and the accused. He said that he found the Crown's evidence to be credible, and the accused's evidence not to be credible. The Crown's evidence was comprised of both the complainant and the witness. 3)The trial judge's findings are supported by the evidence and his conclusions are not clearly wrong so as to make the conviction unreasonable.

4_1995canlii6069.txt

J. Q.B. A.D.1996 No. 993 J.C. S. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON IN THE MATTER OF THE BUSINESS CORPORATIONS ACT, S.S. 1979, c. B-10 BETWEEN: ROSETOWN AND DISTRICT COMMUNITY BOND CORPORATION and PRECISION METAL FABRICATING LTD., LOREN KATZENBERGER and SHERYL KATZENBERGER RESPONDENTS L. Jay Litman for the applicant Jay D. Watson for the respondents JUDGMENT KYLE J. June 11, 1996 This motion raises the question of the right of acorporate board to breach its undertaking to remain in a smallcommunity when it had taken advantage of the governmentsponsored community bond program in order to establish itsbusiness. FACTS Precision Metal Fabricating Ltd. ("Precision") entered into Financing Agreement with Rosetown and District Community Bond Corporation ("Bondco") March 14, 1991, under the terms of which Bondco invested $800,200 in Precision. Under its terms, for period of ten years: 5.01 Negative Covenants Project Co. hereby covenants and agrees to and in favour of Bondco that prior to the Termination Date, Project Co. shall not, without the prior written consent of Bondco: (k) sell, dispose or remove from the municipality of Rosetown, Saskatchewan any significant amount of its operating 5.02 Positive Covenants Unless Bondco provides its written consent (which may be withdrawn at any time as to future events) Project Co. shall, until the Termination Date: (f) maintain in ordinary operation in the Rural Municipality of St. Andrews in the Province of Saskatchewan. No written consent has been sought or given under these provisions. Bondco was formed pursuant to The Community Bonds Act, S.S. 1990-91, c. C-1.1 the long title of which is "An Act respecting Investments by Saskatchewan Residents in Support of Community Diversification and Environmental Protection". Its clear purpose was to lend government assistance and support to locally based industrial and commercial development programs to the end that Saskatchewan's essentially rural agricultural economy might diversify, providing off farm employment and lending vitality to centres which can take advantage of its provisions. The objective of the Financing Agreement was in part to assure that Precision would not "take the money and run". The Shareholders' Agreement obliged all shareholders to vote their shares so as to confirm the nominees of certain shareholders, thereby freezing the board composition without regard to its performance. An unusual restriction indeed. As result the board was dominated by the original Precision group of shareholders and even though Bondco and eventually the Government of Saskatchewan are entitled to enough votes to exercise control of the company, they cannot change the board and if they try to dictate policy they do not have the usual ways of enforcing their wishes. Loren Katzenberger was at all material times President and CEO of Precision. The six member board was controlled by him and his associates. In December, 1994, local media reported that Precision had decided to move part of its operation to Saskatoon, city of 200,000 inhabitants about 80 miles from Rosetown. Rosetown has perhaps 3,000 residents. Katzenberger advised Bondco, upon inquiry, that Precision had leased manufacturing facility in Saskatoon. It appears that, absent written consent by Bondco, this was in breach of the Financing Agreement covenant. Members of Bondco by January, 1996, were concerned that jobs were being obtained in Saskatoon at the expense of Rosetown jobs and that the economic spin-offs expected to flow from their investment were not being realized in Rosetown due to the opening of the Saskatoon facility. On February 5, 1996, board resolution directed that all plans to move the plant operation to Saskatoon would be put on hold and no further movement was to take place. On February 29, Reinie Janke, Bondco director, wrote to the CEO confirming that the move to Saskatoon was in breach of the Financing Agreement and referring to legal advice that action could be taken to prevent the move. Bondco's concerns were well founded. Mr. Katzenberger's 1996 projection document contained the following paragraph: "Precision Metal Fabricating Ltd. plans to consolidate its operations to the Saskatoon location. This will be done systematically through 1996 with the offices moving early in the year and our production facilities following in practical manner as production permits. While Mr. Katzenberger, through his counsel, stated that no further moves were planned, it was acknowledged that it was his intention ultimately to move to Saskatoon and that if this Court or Bondco prevents him from doing so now, he will do it after ten years. ISSUES By this application Bondco seeks:1. A restraining order enforcing the covenant describedherein;2. An order appointing new directors to replace the CEOand his wife;3. An order of compensation for breach of contract;4. An order directing the closure of the Saskatoonoperation and the return of company assets to the RuralMunicipality of St. Andrews (Rosetown District) unless writtenconsent to such operation in Saskatoon is granted by Bondco. DISCUSSION This application is made under s. 234 of The BusinessCorporations Act, S.S. 1979, c. B-10 which provides that ifthe Court is satisfied that an act of the corporation effectsa result or if its affairs have been conducted in a manner, orif the directors have exercised their power in a manner thatis oppressive or unfairly prejudicial to, or which unfairlydisregards the interests of a security holder, the Court maymake an order to rectify the matters complained of. Some of its options are set out in subsection (3) of s. 234 and they give this Court almost unlimited power to make changes in the corporation's affairs so as to resolve the problem. The Court has, specifically, the right to amend the articles or bylaws or unanimous shareholders' agreement. It may also make changes in the board of directors. The facts of this case are not in dispute. The rationale of the decision of the directors to act in breach of the Financing Agreement is that the company's best interests are served by its being in Saskatoon because facilities, and perhaps labour, are in better supply there. The clear purpose of The Community Bonds Act was to bring about the continued economic development of regions such as Rosetown. It is not breach of the duties of director to condition his response to business questions by adhering to the principles of that Act. The commitment to operate in Rosetown was valid corporate interest, it formed the basis of the financing. Breach of so fundamental an obligation of the corporation could not be justified by conjuring up some project which can better be handled elsewhere. If it were otherwise, government incentive financing would not exist and companies such as the respondent would not be formed. While the long term value of such programs is sometimes questioned, once the commitment is made it should be complied with. The thrust of the respondents' argument was that the breach of the commitment to remain in Rosetown was in the interests of the corporation and the directors should be obliged to consent thereto. totally reject this line of reasoning. If the facilities in Rosetown and district are inadequate, they could be provided. At any event, it is unlikely that any material component of the company's requirements has disappeared from the Rosetown environment since the decision was taken to use $800,000 of Rosetown money. The actions of Mr. Katzenberger and his supporters on the board have been high-handed and oppressive and the complainant Bondco is fully entitled to the assistance of the Court in rectifying the matters complained of. DECISION It is therefore ordered, pursuant to s. 234(2) of TheBusiness Corporations Act, as follows:1. The Shareholders' Agreement is hereby amended bydeleting paragraph 3. Board of Directors and substitutingtherefor: 3. Board of Directors: The affairs of the Corporation shall be managed by board of directors of such number as the shareholders shall from time to time determine, to be elected at an annual general meeting of the corporation at which all Class "A" and Class "B" shareholders shall be entitled to such votes as are contemplated by their agreement, the Financing Agreement and the Articles of the company. Casual vacancies arising between annual meetings may be filled by the continuing members of the board. 2. The provisions of Articles 2.03, 3.02 and 3.03 of theArticles of Continuance as amended are suspended until theTermination Date as defined by the Shareholders' Agreement. 3. The present board of directors is suspended pendingthe election of directors to take place at a special meetingof the shareholders to be convened at such place and time asBondco, as represented by Reinie Janke, shall direct, but inany event before July 31, 1996. The secretary, Sheryl Katzenberger, is directed, with such legal assistance as may be required, to convoke the said meeting. 4. The respondent, Precision Metal Fabricating Ltd. andits officers and employees, are hereby enjoined from:(a) moving any of its operations from Rosetown or themunicipality of St. Andrews;(b) transferring employees or hiring further employees at anyplace other than Rosetown or the municipality of St. Andrews;unless the written consent of Bondco has been obtained andfiled with the Court. It is not my intention to displace Mr. Katzenbergeras Chief Executive Officer. His dedication to the welfare of the company, company he no doubt regards as his, is not questioned. The purpose of the order now made is to place him on notice that the will of the shareholders and the contracts under which the company was formed are not to be brushed aside. I am not directing the closure of the Saskatoonoperation. If it is the will of the board elected pursuant to the above order to withdraw from Saskatoon, it may do so. Bondco shall be entitled to recover its taxable costs against the individual respondents.

The question was whether a corporate board could breach its undertaking to remain in a small community when it had taken advantage of the government sponsored community bond program in order to establish its business. The Shareholders' Agreement obliged all shareholders to vote their shares so as to confirm the nominees of certain shareholders, thereby freezing the board composition without regard for its performance. As a result the board was dominated by the original Precision group of shareholders and even though the Government of Saskatchewan and Bondco were entitled to enough votes to exercise control of the company, they could not change the board and did not have the usual ways of enforcing their wishes. Members of Bondco were concerned that jobs were being obtained in Saskatoon at the expense of Rosetown jobs and the economic spin-offs expected from their $800,000 investment were not being realized in Rosetown due to the opening of the Saskatoon facility. An application was brought under s234 of the Business Corporations Act. They sought a restraining order enforcing the covenant, an order appointing new directors, an order of compensation for breach of contract and an order directing the closure of the Saskatoon operation and the return of company assets to Rosetown district unless Bondco granted written consent. HELD: It was ordered that 1)the Shareholders Agreement was amended deleting the offending paragraph concerning the Board of Directors and substituting a new paragraph; 2)certain provisions of the Articles of Continuance as amended were suspended until the Termination Date; 3)the present board was suspended pending the election of directors at a special meeting of shareholders; 4)the respondent was enjoined from moving its operations and from transferring or hiring employees at any place other than Rosetown District unless Bonco's written consent was filed with the Court. 5)The Chief Executive Officer was not displaced nor was the Saskatoon operation directed to be closed. 6)Bonco was entitled to its taxable costs against the individual respondents.

d_1996canlii7113.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2010 SKQB 187 Date: 2010 05 27 Docket: Q.B.G. No. 1298 of 2009 Judicial Centre: Saskatoon BETWEEN: F.M.I. DEVELOPMENTS LTD. and 1269917 ALBERTA LTD., GEORGE C. SHEN PROFESSIONAL CORPORATION, BRYCE HONG, TRANSWEST FINANCIAL SERVICES CORP., ANUJ RANJAN, NAVJOT DHANOA, RAVINESH AUTAR, BRITPAUL MUTTI, SUKHDEEP BRAR and TIRATH BRAR Counsel: Jeffrey M. Lee for the plaintiff F.M.I. Developments Ltd. W. Randall Rooke, Q.C. for the defendant 1269917 Alberta Ltd. M. Kim Anderson for the defendant George C. Shen Professional Corporation John B.O. Rozdilsky for the defendants Ravinesh Autar and Britpaul Mutti JUDGMENT FOLEY J. May 27, 2010 [1] On March 28, 2007, 1269917 Alberta Ltd. (“Alberta Ltd.”) granted mortgage to F.M.I. Developments Ltd. (“FMI”) over parcel of land (“the Land”) located just outside the boundary of the City of Saskatoon. The mortgage was for $3,100,000 repayable by two installments of $300,000, then the balance payable on April 30, 2009. The payments were not made. [2] FMI issued a statement of claim in October 2009 seeking foreclosure on the Land. None of the defendants entered defence but served demands for notice and then were noted for default of defence on March 12, 2010. By its notice of motion of March 9, 2010, FMI seeks an order nisi for judicial sale. Service of the motion was effected on Alberta Ltd. on March 9, 2010, was returnable in this Court on March 25, 2010, then was adjourned by consent to April 8, 2010. [3] On March 22, 2010, the affidavit of Navdeep Sra dated March 19, 2010, was filed on behalf of Alberta Ltd. asserting, inter alia: 3. THAT the Mortgaged Land is situated outside the City of Saskatoon, in the Rural Municipality of Corman Park No. 344. There is barbed wire fence located on the perimeter of the Mortgaged Land. 4. THAT in 2009, the Mortgaged Land was leased to Trevor Mintz operating as Trevor Mintz Cattle. have been advised by Trevor Mintz and do verily believe to be true that he is farmer, and that bales of the forage grown on the Mortgaged Land in 2009 were used to feed his cattle. have finalized lease of the Mortgaged Land between Trevor Mintz and Alta. Co. for 2010. 6. THAT make this Affidavit in opposition to the application by the Plaintiff for an Order Nisi for Judicial Sale and for declaration that the proceedings commenced on this matter are nullity pursuant to section 11 of The Saskatchewan Farm Security Act. His affidavit, filed as “representative of and consultant to ... Alberta Ltd.”, incorporated as Exhibit “C” document which provided: March 19/2010 Trevor Mintz This will confirm our agreement to renew your lease further term of year on the same terms as last year. Rent $750.00 Property LSD 11-14 Sec 20, Twp 37, Rge 05, W3rd Term Jan. 1, 2010 Dec. 31, 2010 Yours truly, 1269917 Alberta Ltd. per: “Navdeep SRA” Nav Sra representative Accepted: “Trevor Mintz” [4] On this hearing the issues raised are:(i) Whether the foreclosure action was void as initio by virtue of the operation of ss. 9 and 11 of the SFSA? (ii) If judicial sale is to be ordered, what period of redemption should be set? and(iii) Whether FMI may submit a bid which incorporates the value of the Land as a “credit” enabling FMI to merely “top up” by the additional amount needed to reach its bid price? (i) Whether the action is void? [5] The Saskatchewan Farm Security Act, S.S. 1988-89, c. S-17.1 (“SFSA”) provides in part: 9(1) Notwithstanding any other Act or law or any agreement entered into before, on or after the coming into force of this Act: ... (d) subject to sections 11 to 21, no person shall commence an action with respect to farm land; 11(1) Where mortgagee makes an application with respect to mortgage on farm land, the court may, on any terms and conditions that it considers just and equitable: (a) order that clause 9(1)(d) or section 10 does not apply; or (b) make an order for the purposes of clause 9(1)(f). (2) Where an order is made pursuant to subsection (1), the mortgagee may commence or continue an action with respect to that mortgage. (3) Any action that is commenced without an order pursuant to this section is nullity, and any order made with respect to an action or proposed action without an order pursuant to this section is void. [Emphasis added] [6] Alberta Ltd. says that the Land was farm land within the meaning of the SFSA in October 2009 by virtue of the haying operation referenced by Mr. Sra, supra, when the foreclosure action was commenced by FMI and, as no order was sought or obtained by it as required by the combined operation of ss. 9 and 11 of the SFSA, supra, then the entire foreclosure action brought against the Land is a nullity. [7] FMI says that the Land was not “farm land” within the meaning of the SFSA in that, once the nature of Alberta Ltd.’s activities on and its relationship to the Land are examined, then Alberta Ltd. is not farmer but rather is developer and the Land is not farm land but rather development site. FMI relies on Christie v. Texas Industries (1985), 1985 CanLII 2631 (SK CA), 43 Sask. R. 90 (C.A.) in which Tallis J.A. at para. 10 said of the application of The Farm Land Security Act, S.S. 1984-85-86, c. F-8.01 (“the FLSA”) (predecessor legislation to the SFSA) in the like circumstances of that case: Its lease of the land for farming purposes, after the notice delivered to the plaintiff under paragraph 10 of the agreement dated 12 October 1979, was merely incidental to its main business of developing. In order to bring the transaction within the Act there must be realistic involvement in farming. In our opinion the legislature never intended that developer, by leasing parcel of land in the circumstances of this case, could gain the protection of The Farm Land Security Act. [Emphasis added] [8] FMI submits that in this case, the Christie case remains the controlling authority, such that when applied to this case rejection of the defendants’ submission on the applicability and effect of ss. and 11 of the SFSA must follow. [9] Alberta Ltd. and the other defendants’ response is that the Christie case has no application here as it was decided within the scope of the 1984-85-86 FLSA, now repealed. The SFSA circa 1988-89 is said by them to have replaced, modified or reversed the legislative intention of the FLSA identified in Christie. The Alberta Ltd. brief states: 33. It is respectfully submitted that in passing the SFSA, the legislature did in fact clearly express its intention. Whereas section of the FLSA clearly stated that the purpose of the entire FLSA was to afford protection to farmers against loss of their farm land, in the SFSA, that same intention is contained in section 4, and is applicable only to Part II of the SFSA. In Part II, farmer is defined as mortgagor, except in sections 27.1 to 27.9, where the mortgagor must also be producer or an agricultural corporation to take advantage of the lease back provisions. We would submit that the legislature has now clearly indicated in what circumstances the mortgagor must also be producer or an agricultural corporation in order for the additional protection of certain parts of the SFSA to apply. For Part II to apply, and as was stated by Justice MacLeod in Bank of Montreal v. Nevin [(1993), 1993 CanLII 8863 (SK QB), 115 Sask. R. 179 (Q.B.)], is the person mortgagor? If so, is the land owned by the mortgagor farm land within the meaning of the definition of the SFSA? For the reasons specified aforementioned, it is our submission that the Mortgaged Land is farm land within the meaning of the SFSA. [10] The SFSA of 1988-89 repealed the FLSA of 1984-85-86 as well as The Saskatchewan Farm Ownership Act, R.S.S. 1978, c. S-17 (“the SFOA”) and The Farm Security Act, R.S.S. 1978, c. F-9 (“the FSA”). In so doing it consolidated and restated the repealed provisions such that restrictions on non-resident and non-agricultural corporate ownership of farm land now appear in Part VI of the SFSA under heading of Farm Ownership. Provisions of the FSA concerning foreclosure on homesteads appear in Part III of the SFSA under the heading of Home Quarter Protection. Of particular note for the purposes of this case is the integration of the repealed provision of the FLSA into Part II of the SFSA as it now stands. [11] comparison of the relevant portions of the two statutes discloses: The Farm Land Security Act, S.S. 1984-85-86, c. F-8.01 The Saskatchewan Farm Security Act S.S. 1988-89, c. S-17.1 An Act respecting the Security of Farm Land in Saskatchewan An Act to provide for Security for Saskatchewan Family Farms The purpose of this Act is to afford protection to farmers against loss of their farm land. The purpose of this Part is to afford protection to farmers against loss of their farm land. 2(e) “farmer” means mortgagor or purchaser under an agreement for the sale of farm land or the personal representatives or assigns of mortgagor or purchaser under an agreement for sale. 3(c) “farmer” means, except in sections 27.1 to 27.9, mortgagor. 2(d) “farm land” means land in Saskatchewan that is used for the purposes of farming and is subject to mortgage. 2(f) “farm land” means other than in Part VI, real property in Saskatchewan that is situated outside city, town, village, hamlet or resort village and that is used for the purposes of farming, but does not include: (i) minerals contained in, on or under that real property; and (ii) land used primarily for the purpose of extracting, processing, storing or transporting minerals. 2(f) “farming” includes livestock raising, poultry raising, dairying, tillage of the soil, bee-keeping, fur farming or any other activity undertaken to produce agricultural products. 2(g) “farming” includes livestock raising, poultry raising, dairying, tillage of the soil, bee-keeping, fur farming or any other activity undertaken to produce primary agricultural produce and animals. 9(1) Subject to the other provisions of this section, where mortgagee makes an application with respect to mortgage on farm land, the court may, on any terms and conditions that it considers just and equitable, order that sections and do not apply. (2) Where an order is made pursuant to subsection (1): (a) the mortgagee may commence or continue an action with respect to that mortgage; and (b) The Land Contracts (Actions) Act does not apply to that mortgage. (3) During the period commencing on December 4, 1984 and ending on December 31, 1987 or, where an order is made pursuant to section 13, the further date that is specified in the order, any action that is commenced without an order pursuant to this section is nullity, and any order made with respect to an action or proposed action without an order pursuant to this section is void. 9(1) Notwithstanding any other Act or law or any agreement entered into before, on or after the coming into force of this Act: (d) subject to sections 11 to 21, no person shall commence an action with respect to farm land. 11(1) Where mortgagee makes an application with respect to mortgage on farm land, the court may, on any terms and conditions that it considers just and equitable: (a) order that clause 9(1)(d) or section 10 does not apply; or (b) make an order for the purposes of clause 9(1)(f). (2) Where an order is made pursuant to subsection (1), the mortgagee may commence or continue an action with respect to that mortgage. (3) Any action that is commenced without an order pursuant to this section is nullity, and any order made with respect to an action or proposed action without an order pursuant to this section is void. [Emphasis added] [12] This comparison does not support the defendants’ submission that the provisions of the SFSA modify the underlying legislative principles which form the foundation of the Christie decision. Both statutes contemplate farmers and mortgagors being entitled to the protection accorded by each statute. Both require the land so protected to be “farm land” used for the purpose of farming and thus, in this case, the critical question is, as it was in Christie, whether the Land was in fact “used for the purpose of farming”. [13] For the purposes of this aspect of the motion, accept that an individual named Mintz was authorized by Alberta Ltd. to cut and bale hay on the Land in 2009. The legal relationships thus created between Mintz and Alberta Ltd. may have been one of licence, profit prendre or lease, suffice it to say that do not consider myself bound by the legal characterization of lease asserted in the Navdeep Sra affidavit. The mortgage by s. 7(c) prohibited the mortgager leasing without the mortgagee’s consent, however the effect of this provision on the so-called March 19, 2010 renewal of “lease” was not argued or tested: 7(c) The Mortgagor shall not, except as otherwise expressly permitted by the Mortgagee, grant lease of the Lands or any part thereof other than to such tenants and on such terms and conditions as first consented to in writing by the Mortgagee; it being understood that the granting of such consent shall not be or be deemed to be grant of priority for any such lease over this mortgage. 13. THE MORTGAGEE COVENANTS AND AGREES WITH THE MORTGAGEE THAT: ... (c) on default, the Mortgagee shall have quiet possession of the Lands, free from all encumbrances existing at the time of registration hereof and save and except for any and all usual and ordinary easements, caveats and covenants associated with the supply of power, water, gas or other public utilities. [14] The undisputed evidence is that since its acquisition of the Land in 2007, Alberta Ltd.’s focus and direction vis-à-vis the Land has been the undertaking of a host of activities designed to develop the Land into an industrial park. These include environmental assessment, concept plan and infrastructure development, preparation and circulation of its business plan, listing lots in its proposed “Diamond Industrial Park” as part of its plan of subdivision and attending meetings with the City of Saskatoon to promote the Land’s annexation into the City. These activities bracket the commencement of the FMI action. [15] business plan developed for the owners anticipated: i) approval of the plan by the City of Saskatoon; ii) annexation with the City of Saskatoon as: The subject land area in its current use is agriculture but not currently used for any agricultural purpose and is under-utilized relative to the potential and demand for commercial and industrial business development in Saskatoon, also to access city infrastructure services. [16] The proposed use of the Land is recited to be: The Diamond Business Park is intended for uses that meet the zoning guidelines set by the City of Saskatoon as lL1. Focusing on enclosed showroom/warehouse, light manufacturing, service, including: 154 acres of gross developable land area 127 acres net saleable lots Architectural guidelines for built development components Recognition of the Yellowhead Highway as gateway into Saskatoon Orientation toward sustainable design practices Alignment with the existing roadway fabric Controlled on-street parking Storm water retention to control flow into the existing utility services Coordinated development phasing plan [17] In contrast evidence is lacking of activity of Alberta Ltd. directed to the Land qua farm land which could reasonably bring it within the statutory purpose of the SFSA as considered in Christie, supra, and in particular Part II. Section of the SFSA provides: Purpose The purpose of this Part is to afford protection to farmers against loss of their farm land. [18] Section 2(1)(f) provides: 2(1) In this Act: ... (f) “farm land” means other than in Part VI, real property in Saskatchewan that is situated outside city, town, village, hamlet or resort village and that is used for the purposes of farming, but does not include: (i) minerals contained in, on or under that real property; and (ii) land used primarily for the purpose of extracting, processing, storing or transporting minerals; (g) “farming” includes livestock raising, poultry raising, dairying, tillage of the soil, bee-keeping, fur farming or any other activity undertaken to produce primary agricultural produce and animals. [19] The evidence in this case is clear that the Land was purchased by developer for development; was being developed at the time this action was brought, and neither at that time nor since has there been any realistic involvement in farming so as to trigger the provisions of the SFSA and so engaged the legislative intention of providing farm land protection. [20] In my opinion the Christie rationale and criteria are as applicable to the SFSA as they were to the FLSA and the foreclosure proceedings by FMI are not void. (ii) What period of redemption should be set? [21] The defendants suggest that redemption period of at least 16 months is appropriate in the circumstances of this case given the equity held by Alberta Ltd., the difficult refinancing conditions of the present economy and the inequity which would arise were the plaintiff entitled to again recoup its own purchase costs and benefit from sale price enhanced by the defendants’ development efforts. In contrast, FMI notes that the mortgage was only for two-year term and that none of the interim payments were made. It submits that in these circumstances, the usual redemption period of 90 days should apply. [22] In my opinion, no foundation has been laid to cause me to deviate from the usual redemption period where, as here, not only has the mortgage expired, but no attempt to make payments was made and no conduct is alleged on the part of FMI which contributed to the defendants’ default. The redemption period shall therefore be 90 days from the date of this decision. (iii) Whether FMI, should it wish to submit bid, need only “top up” by paying into court only any additional amount needed to attain that bid over the Land value? [23] The purpose of the bidding process in judicial sale remedy contemplates level playing field for all participants. The fact that FMI is owed an amount on the mortgage and that it will likely receive a significant cash payout on sale does not modify the desirability and necessity of obliging all bidders to pay into court the full bid price. To do otherwise would be to pay heed to the financial strengths of one or more of the parties, or at least give preferred position to the entity seeking foreclosure. The bidding process is more than simple accounting device and consequently, the fact that particular bidder will be receiving funds from the property should not enter into the judicial sale process. This application by FMI is dismissed and the usual bidding rules shall apply. [24] The plaintiff FMI shall have its costs to be taxed in the usual way.

The plaintiff granted the defendant a mortgage over a parcel of land just outside the city limits. The defendant failed to make any payment. The plaintiff applied for foreclosure on the land and an order nisi for judicial sale. The defendant was a developer. He argued that the foreclosure action was void because the land was being used as farmland and was subject to protection under s. 9 and 11 of The Saskatchewan Farm Land Security Act. The other issues before the court were the appropriate period of redemption and whether the plaintiff could submit a bid that incorporated the value of the land as a 'credit' enabling the plaintiff to merely 'top up' the bid by the additional amount needed to reach the bid price. HELD: The Saskatchewan Farm Land Security Act (SFSA) did not apply. The undisputed evidence was that since the defendant acquired the land in 2007, their focus was to develop the land as an industrial park and they had undertaken a host of activities to achieve that purpose which clearly indicated that their intent was not to farm the land in the sense contemplated by the SFSA. There was no foundation to deviate from the usual redemption period of 90 days from the date of the decision. The bidding process in a judicial sale contemplates a level playing field for all participants. The fact that the plaintiff is likely to receive a significant cash payout from the judicial sale does not modify the desirability of obliging all bidders to pay into court the full bid price. Normal bidding rules shall apply. The plaintiff was entitled to costs.

b_2010skqb187.txt

S.C.C. No. 02551 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION Clarke, C.J.N.S., Matthews and Freeman, JJ.A. BETWEEN: KEVIN JOSEPH DOUCETTE and HER MAJESTY THE QUEEN Respondent Richard W.P. Murphy for the appellant Denise C. Smith for the respondent Appeal Heard: January 23, 1992 Judgment Delivered: January 23, 1992 THE COURT: Leave to appeal permitted, the appeal allowed, the conviction set aside and new trial ordered per oral reasons for judgment of Matthews, J.A.; Clarke, C.J.N.S. and Freeman, J.A. concurring. The reasons for judgment were delivered orally by: MATTHEWS, J.A.: The appellant, on March 26, 1991, was found guilty of break and enter into lobster car situate at Metaghan wharf and the theft of lobsters therefrom. He now appeals from that conviction. The main issue on appeal is whether the trial judge erred in admitting into evidence a statement by the appellant to an R.C.M. Police officer without holding a voir dire. The constable made notes of conversation he had with the appellant respecting some of the circumstances surrounding the offence. The trial judge agreed with the submission of Crown counsel that the conversation should not be admitted into evidence because of an alleged inducement. Whether Crown counsel was correct in his submission is not in issue on this appeal. There was no voir dire held to determine if the statement was voluntary. The trial judge refused to permit the constable to read his notes into the record however, over the objection of defence counsel the constable did testify as follows: "CORPORAL OLDFORD: Okay, following my conversation with Kevin Doucet had talked with Meteghan R.C.M.P. members, mainly Constables Turcotte and Doucette and informed them of several places that they should look for stolen lobsters and informed them of numerous people that had purchased the lobsters based on the information that had received. further advised them of the price that was paid for the lobster and the quantity of lobsters purchased. Further to that advised them of the time of day the lobster were purchased and for some parties the location the purchase was made. also advised him at the same time that my information was that there were axes used in the commission of the offence that were in the ocean, in the water near the scene and also informed them that crates the lobsters had been in are in the ocean and that the lobsters had been sold live to certain people and had addresses for some of the people. None of which knew myself, didn't know any of the people." The trial judge in effect permitted into evidence what he previously said he would not allow: the conversation between the constable and the appellant. That should not have been done without a voir dire to determine if the statement was voluntary. See Erven v. The Queen (1978), 1978 CanLII 19 (SCC), 44 C.C.C. (2d) 76 (S.C.C.) 25 N.R. 49. In rendering his decision the trial judge said: "The evidence of the Crown witnesses also establish that there was an axe found in the water by Corporal. Brian Oldford of the Ident Section and it's been established by exhibit here today that the paint samples taken from the axe as well as from the door would indicate that the axe was used to gain access to the lobster car and thus to the amount of lobsters in the car floating near the wharf at Meteghan, Digby County, Nova Scotia." ... "The crucial evidence think that comes out in cross examination is the tying in of the axe from Corporal Oldford and the finding of the axe in the water near the car which was found as result of conversation with Corporal Oldford and the defendant, Kevin Doucet. ... I'm satisfied by this tying in of the axe through Doucet through Corporal Oldford that Mr. Doucet was in fact the person who did break and enter the certain place, to wit, the lobster car at Meteghan wharf and did commit the indictable offence of theft and find him guilty of the offence as charged." In fact the axe was not found in the water by Corporal Oldford or as result of his conversation with the appellant. It was found there by the owner of the lobster car before that conversation took place. That the trial judge misconstrued that and other evidence is not the only problem. The fact is that he relied upon the inadmissible conversation between Corporal Oldford and the appellant which he termed crucial, to reach his conclusion of guilt. In doing so he erred. We permit leave to appeal, allow the appeal, set aside the conviction and order a new trial. J.A. Concurred in: Clarke, C.J.N.S. Freeman, J.A. PROVINCE OF NOVA SCOTIA 1991 S.C.C. 02551 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION on appeal from THE PROVINCIAL COURT HER MAJESTY THE QUEEN ‑versus- KEVIN JOSEPH DOUCET HEARD BEFORE: His Honour Judge John R. Nichols, J.P.C. PLACE HEARD: Little Brook, Nova Scotia DATES HEARD: January 22, March 26 and June 26, 1991 COUNSEL: V. Blaine Allaby, Esq., Q.C., for the Prosecution Richard W. P. Murphy, Esq., for the Defence R. Alain Deveau, Esq., Q.C., for the Co‑accused CASE ON APPEAL S.C.C. No. 02551 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION BETWEEN: KEVIN JOSEPH DOUCET and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT BY: MATTHEWS, J.A.

Where on a charge of break, enter and theft, the trial judge agreed with the Crown that a conversation between a police officer and the appellant was inadmissible, but then effectively allowed the evidence by permitting the testimony of the police officer, and no voir dire had been held to determine if the conversation was admissible. The appeal against conviction was allowed and a new trial ordered.

b_1992canlii2575.txt

NOVA SCOTIA COURT OF APPEAL Citation: R. v. Cummings, 2012 NSCA 52 Date: 20120511 Registry: Halifax Between: CAC 341990 Wanda Cummings v. Her Majesty the Queen Respondent And Between: CA 352311 Wanda Cummings v. Her Majesty the Queen in right of the Province of Nova Scotia and The Honourable Judge Robert A. Stroud Respondents Judge: The Honourable Justice M. Jill Hamilton Motion Heard: May 3, 2012, in Halifax, Nova Scotia, In Chambers Held: The appellant’s motion to consolidate both appeals and to have the respondents pay to certify the transcript is dismissed. The appellant’s appeals, CAC 341990 and CA 352311, are hereby dismissed for failure to perfect. Counsel: Wanda Cummings, appellant, in person William D. Delaney, Q.C., for the Crown Sheldon Choo, for the Attorney General of Nova Scotia [1] On May 3, 2012 heard several motions concerning two appeals CAC 341990, being Ms. Cummings appeal of the November 29, 2010 decision of Justice Douglas L. MacLellan, (“Criminal Appeal”) and CA 352311, being her appeal of the June 29, 2011 decision of Justice Richard Coughlan, (“Civil Appeal”). heard Ms. Cummings’ motion to (1) consolidate her two appeals, (2) stay all matters in Provincial Court in which she is involved, (3) amend her notice of appeal in the Civil Appeal, (4) seal the court files, issue non-publication order and grant leave to file materials anonymously in her appeals and (5) require that one of the respondents pay for the preparation of the appeal book and for the certification of the approximately 1,700 pages of transcript that she has typed herself or, in the alternative, allow her to file all required materials electronically, including uncertified transcripts. also heard the Attorney General of Nova Scotia’s (“AGNS”) motions to dismiss both appeals on the basis Ms. Cummings has failed to perfect them in accordance with the Nova Scotia Civil Procedure Rules, and the motion of the Crown to dismiss the Criminal Appeal on the same basis. Criminal Appeal [2] The background of the Criminal Appeal is that on June 5, 2008, Judge Laurel J. Halfpenny-MacQuarrie of the Provincial Court found that (1) Ms. Cummings had committed the acteus reus of the offence of public mischief under Section 140 of the Criminal Code, R.S.C., 1985, c. C-46, when she reported an offence of assault with weapon to an RCMP officer, causing him to enter into an investigation, when the alleged offence had not been committed and (2) she was not criminally responsible with respect to this charge. Ms. Cummings was remanded to the Nova Scotia Forensic Hospital for disposition and on July 8, 2008 was granted an absolute discharge with respect to this charge. Approximately two years later, in July 2010, Ms. Cummings applied for an extension of time to appeal these decisions. Justice MacLellan, acting as summary conviction appeal court judge, refused to grant the extension on November 29, 2010. [3] Ms. Cummings filed notice of appeal, appealing his decision to this Court, on December 20, 2010. On January 11, 2011, she filed an amended notice of appeal and, on April 15, filed motion for date and directions, seeking dates and an order “compelling the Crown to absorb the cost of transcript certification”. On April 18, she filed motion for fresh evidence. At the hearing of her motion for date and directions in appeal court Chambers on April 28, Justice Duncan R. Beveridge dismissed her application to have the Crown or the AGNS pay for the transcript certification and set dates. Ms. Cummings was directed to file the appeal book and her fresh evidence by June 22 and her factum by July 22. The respondents were to file their facta, together with their response to the fresh evidence motion, by August 25. The Criminal Appeal was to be heard for one‑half day on October 18, 2011. [4] On June 20, 2011 Ms. Cummings filed motion seeking sealing order, publication ban and the right to file all materials anonymously with respect to the Criminal Appeal and all Provincial Court matters relating to her. On June 22 she filed an appeal book and factum “in support of Motion for Fresh Evidence”. Her “confidentiality” motion, heard in appeal court Chambers on June 30, was dismissed by Justice Peter M. S. Bryson. Subsequently, the Registrar extended the filing dates with Ms. Cummings to file on August and the respondent on September 19. [5] Nothing was filed by Ms. Cummings and on September 21, she made motion to adjourn the hearing of her appeal, to file her materials electronically, including her fresh evidence material which she estimated would be approximately 300 to 400 pages, to seal the court file, to order non-publication ban and to permit her to file anonymously. Justice Jamie W.S. Saunders in appeal court Chambers on September 28, granted the adjournment without day and gave Ms. Cummings until October 28 to file electronically everything she intended to file with respect to the Criminal Appeal specifically her fresh evidence, her factum on the merits and supplementary factum on her fresh evidence motion. He directed the parties to reappear before him on November for the purpose of setting dates for the respondents to file their facta and for the hearing of the Criminal Appeal. With respect to the “confidentiality” motion, he reminded Ms. Cummings that that issue had been determined by Justice Bryson. No material was filed by Ms. Cummings prior to the October 28 deadline. [6] At the November appearance, Ms. Cummings requested further adjournment. After attempting to ascertain from Ms. Cummings reliable date certain by which she could file her material, Justice Saunders adjourned the matter to December requesting that Ms. Cummings be prepared at that time to provide the Court with definite time-line that she could meet. He noted the demand on the Court’s and the respondents’ resources occasioned by Ms. Cummings’ delays, ordered that transcript of the appearance be produced and be provided to the parties, and stated that it would be open to the respondents on December to move to dismiss the Criminal Appeal in the event Ms. Cummings did not provide an acceptable proposal with respect to filing and hearing dates. [7] On December Ms. Cummings appeared before Justice Linda L. Oland in appeal court Chambers and indicated she could file everything by February 13, 2012. Counsel for the respondents did not move for dismissal, but declared their intention to bring motions to dismiss the Criminal Appeal if Ms. Cummings failed to file on February 13. Justice Oland directed Ms. Cummings to file everything by the “drop-dead date” of February 13, and restated that the respondents could apply to dismiss the Criminal Appeal if she did not do so. [8] Ms. Cummings did not file her materials by February 13. Instead she sent letter to the Registrar inquiring about dates when she could make motion similar to the one presently before me, which she indicated she intended to make. will now outline the background of the Civil Appeal, before setting out what happened after February 13, 2012. Civil Appeal [9] The background of the Civil Appeal begins on June 9, 2011 when Judge Robert A. Stroud of the Provincial Court ordered that Ms. Cummings’ trial with respect to number of charges (resisting arrest, assault, failure to comply with an undertaking, public mischief and false, frivolous and vexatious calls), relating to the period from September 2007 to April 2009, proceed on June 14, 2011. On June 13, Ms. Cummings filed in the Supreme Court of Nova Scotia, notice of judicial review of Judge Stroud’s decision, claiming the Provincial Court had lost jurisdiction. Orally, on June 29, 2011, Justice Coughlan (1) struck Ms. Cummings’ notice of judicial review and (2) refused to order all materials filed in that proceeding be sealed, publication ban or leave to file all materials anonymously. His written decision is dated August 24, 2011. [10] Ms. Cummings filed her notice of appeal from Justice Coughlan’s decision in this Court on July 13, 2011. In appeal court Chambers on July 28, Justice Beveridge directed Ms. Cummings to file an amended notice of appeal naming only Her Majesty the Queen and Judge Stroud as respondents, to make motion for date and directions once Justice Coughlan’s order was issued and to give notice of any further proceedings to the AGNS and the Public Prosecution Service. Counsel for the AGNS subsequently obtained the order from Justice Coughlan and filed it with the court. On September 27, Ms. Cummings made motion for date and directions to be heard on October 13 and notified the court that supporting affidavit and brief would be filed by October 4. On October 12, her motion was removed from the docket as she had not amended her notice of appeal as directed by Justice Beveridge and had not provided the supporting affidavit and brief referenced in her motion documents. [11] Ms. Cummings did nothing further on the Civil Appeal until February 13, 2012. On that date, as referred to in paragraph above, she sent letter to the Registrar inquiring about dates for motion, similar to her motion now before me, which she indicated she intended to make. The Registrar provided this information. On March 26, Ms. Cummings attempted to file her motion. declined to hear it until Ms. Cummings complied with Justice Beveridge’s July 28, 2011 direction to correct the named respondents. On April 4, she filed an amended notice of appeal naming the correct respondents and also making substantive changes. [12] On April 11 counsel for the AGNS filed his motions seeking the dismissal of both appeals. On April 12 the Crown filed its motion for the dismissal of the Criminal Appeal. Ms. Cummings sent numerous emails to and left numerous telephone messages for the Registrar during April in connection with the motions before me. directed the parties to appear before me in Chambers on April 26, at which time asked Ms. Cummings when she could file electronically everything she wanted me to consider in connection with her motion and in response to the dismissal motions. She indicated she could do this by May 1, and on that date she filed CD containing her brief and approximately 3,500 pages of historical motions, applications, affidavits, briefs, case authority, materials from court files, emails and letters dating back to 2006. Included were approximately 1,700 pages of transcript that Ms. Cummings typed and which have not been certified by certified court reporter as required by the Rules. These pages represent the transcripts of 82 court appearances involving Ms. Cummings from 2006 to the present, in Provincial Court, Supreme Court and this Court. Only two, comprising less than one hundred pages in total, are required by the Rules for her appeals. She feels, however, that she must provide all of these transcripts for her appeals, so that the issues she wishes this Court to deal with on her appeals can be dealt with. Ms. Cummings’ Motion [13] It is not necessary that respond to everything sought by Ms. Cummings in her motion, given my decision to dismiss both of her appeals for failure to perfect. will, however, deal with two. [14] First, with respect to Ms. Cummings’ motion to consolidate both appeals, do not accept Ms. Cummings’ argument that the appeals concern the same matters. If this Court’s function was to conduct an inquiry into and adjudicate her many allegations of miscarriage of justice, abuse of process, violation of the Code and the Canadian Charter of Rights and Freedoms and the general wrongdoing of participants in the justice system with whom she has been involved from 2006 to the present, which have not been previously adjudicated and were not dealt with in the decisions under appeal, there may be some interrelationship between her two appeals. However, as has been pointed out to her, that is not the function of this Court. This Court’s function is generally to review specific decision of specific judge or tribunal for error. Ms. Cummings has not satisfied me that these appeals raise common question of fact or law, involve the same ground of appeal, involve the same or similar decision-makers, involve the same occurrences or are in the interests of the parties. To the contrary, one appeal is civil, the other criminal. The legal issues raised in each are distinct. The facts from which they arise are different. They are decisions of different judges given at different times. dismiss Ms. Cummings’ motion to consolidate. [15] Second, dismiss Ms. Cummings’ motion to have the respondents pay the cost of certifying the 1,700 pages of transcript she wants to put before this Court on her appeals. First, less than 100 of these pages are required to be included in the appeal books. Second, Justice Beveridge dismissed similar motion on April 28, 2011. Third, there is no authority under the Rules for me to order the respondents to pay the cost of transcripts for the appellant; R. v. MacDonald, 2003 NSCA 27 (CanLII), para. 6; LeBrun v. Woodward, 2001 NSCA (CanLII), para. 5. Dismissal Motions [16] Rule 91.20 authorizes me, as single judge of this court in Chambers, to dismiss criminal appeal if the appellant fails to perfect it in compliance with Rule 91. This may occur if an appellant fails to apply, within 80 days of filing the notice of appeal, for dates for filing the appeal book and facta and the hearing of the appeal (91.12(1), (2)). It may also occur if an appellant fails to comply with directions given for filing the appeal book and facta. [17] Rule 90.40(2) provides me with similar authority to dismiss civil appeal. For civil appeals, Rule 90.43(1) provides that perfected appeal is one where the appellant has complied with the Rules with regards to the form and service of the notice of appeal, has applied for date and directions in conformity with Rule 90.25 (80 days after filing the notice of appeal in this case), has filed the certificate of readiness in conformity with Rule 90.26, has ordered copies of the transcripts in compliance with Rule 90.26 and has filed and delivered the appeal book and the appellant’s factum. Criminal Appeal [18] With respect to her Criminal Appeal, Ms. Cummings has repeatedly failed to file the material necessary for her to proceed with her appeal and has failed to comply with directions given to her by various judges of this Court over many months with respect to filing these materials. She repeatedly blames the respondents for her delay. Her logic is that the respondents are representatives of the Crown, and are thus responsible for the actions of the police and the RCMP in arresting and charging her from time to time (which in one case she alleges caused her to lose records she feels are relevant to her appeals) and for the actions of the “Provincial Court” in continuing to try to conduct trials involving her. am not satisfied the respondents are responsible for any delay in connection with her Criminal Appeal. Rather, recognizing that Ms. Cummings is self-represented, they delayed bringing their motions for dismissal until they felt there was no chance she would perfect her Criminal Appeal. [19] The Criminal Appeal has dragged on for almost year. Ms. Cummings has known since at least November, 2011 that if she did not file her materials as required her Criminal Appeal may be dismissed. Despite this, we are no closer, six months later, to having the required materials filed and the appeal set down and heard. [20] Given that dismissal of her Criminal Appeal prevents Ms. Cummings from having the merits of her Criminal Appeal determined, which she makes clear are of vital importance to her personally and which she believes are also of great public importance because they involve finding that she was not criminally responsible with respect to the public mischief charge, carefully considered whether it would be just to give her one last chance to file her materials by setting new drop-dead dates and providing that, if she doesn’t comply, the respondents could apply to me on an ex parte basis for dismissal. I am convinced there is no merit to this, given Ms. Cummings’ position that she cannot provide certified transcripts, unless I order the respondents to pay, which I have indicated I am not prepared to do. As argued by the AGNS, it would be unsafe to rely on uncertified transcripts. Ms. Cummings’ suggestion at the end of the hearing, when she saw the handwriting on the wall, that perhaps she could ask legal aid to pay for this, is not realistic. [21] Ms. Cummings has fully and often explained why she has not filed her material on time. The personal circumstances she describes are difficult. But there is no suggestion they will change, so as to permit her to comply with the filing she is required to do in order to get her appeal to the point where it can be dealt with by this Court. [22] I dismiss her Criminal Appeal for failure to perfect. Civil Appeal [23] I also dismiss Ms. Cummings’ Civil Appeal for failure to perfect. Ten months after she filed her notice of appeal in her Civil Appeal, no dates have been set for the filing of the required materials or the hearing of the appeal because of Ms. Cummings’ seeming inability to comply on timely basis with the Rules. She has not ordered transcript in compliance with Rule 90.26, filed properly completed certificate of readiness or made proper motion for date and directions. [24] In summary, Ms. Cummings’ motions to consolidate her two appeals and to have the respondents pay to certify the transcripts are dismissed The respondents’ motions to dismiss her Criminal and Civil Appeals are granted. Hamilton, J.A.

, motions granted. Both appeals are dismissed as a result of the appellant's failure to perfect, including her failure to file necessary materials or comply with the court's directions to do so. While a dismissal of the criminal appeal is a serious remedy, since it means it will never be heard on its merits, the appellant has made it clear that she cannot provide certified transcripts unless the court orders the respondents to pay. The court has already declined to do so. There is no suggestion a further extension of time will result in the appellant perfecting the appeal.

d_2012nsca52.txt

1988 S.H. No. 66990 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: 32262 B.C. LTD. and NOVA ENTERPRISES LIMITED, body corporate and JAMES MACKAY DECISION HEARD: at Halifax, Nova Scotia, before the Honourable Associate Chief Justice Ian H. M. Palmeter, on March 17th and 18th, 1993. DECISION: June 10th 1993 COUNSEL: Michael J. Wood, Esq., Counsel for the Plaintiff Peter Rogers, Esq., and Rod Jordan, Articled Clerk, Counsel for the Defendants PALMETER, A.C.J. This matter was heard by me on March 17th and 18th, 1993 and adjourned for decision. The action was commenced by the plaintiff for the alleged breach of contract of a written contract between the parties and damages therefore, or, in the alternative, damages for unjust enrichment. The defendants have counterclaimed for damages based on alleged negligent misrepresentation on the part of the plaintiff. After hearing all of the evidence and perusing the documentation tendered, have determined the facts in this case to be the following. The plaintiff (Sign‑O‑Lite) is in the business of manufacturing, selling and leasing commercial signs and has construction facility in Toronto, Ontario. The defendant (Nova) sells and services tractor trailers, and other large trucks in Nova Scotia, particularly in the Truro area. The defendant (MacKay) is the President and one of the principal shareholders of Nova. Nova had previously operated its business on the Brookside Road, north of Truro, and in 1984 moved to new location adjacent to the McClure Mills Interchange on Highway 102. In connection with this move, evidence has convinced me that Nova had encountered regulatory bureaucracy from the Department of Transportation, the Public Utilities Board, and other municipal and government agencies. This evidence has convinced me that Nova was well aware of, and wary of, governmental regulatory problems. In April of 1986, Nova made inquiries to the Nova Scotia Department of Transportation for regulatory approval to erect sign between Nova's building and Highway 102. This sign was to be 6' 15' illuminated sign which was to be moved from Nova's old building on the Brookside Road. This project was abandoned as Nova learned that the 6' 15' sign was not strong enough to act as free‑standing sign. Nova was interested in sign and had discussions with Irving Oil Limited prior to 1986 about joint sign, but this joint sign was never erected. In October of 1986, Nova was contacted by one Byard Thurber who was the Atlantic Sales Manager of the plaintiff to discuss whether it was interested in sign. Discussions took place between Thurber and Mr. Masters, the General Manager of Nova, and eventually with Mr. MacKay and other employees of Nova. The sign discussed was one which had an electronic message centre, and accept that Nova was most interested in this type of sign. also accept that Nova fully expressed its concern about regulatory approval to Thurber as result of its previous experience, and Thurber assured Nova that the Plaintiff would look after getting this approval as it was in the business of erecting signs and dealing with regulatory authorities across the country. After reaching an agreement on price and details of the sign, the contract was prepared by Mr. Thurber. In the contract, clause 40 was added by Thurber to meet the concerns of Nova regarding regulatory approval. Clause 40 reads as follows: "Subject to approval for permit from Department of Highways" On December 1st, 1986 the contract was signed by MacKay, on behalf of Nova, and by himself in his personal capacity as an accommodation party. After the contract was signed, Thurber met with numerous representatives of the Department of Transportation in an effort to obtain regulatory approval. No approval was forthcoming and there appeared to be considerable confusion on the part of the officials of the Department of Transportation as to just what approval, if any, was required. accept as fact that Thurber was aware there was opposition on the part of the officials of the Department of Highways to the erection of sign with message centre upon the Nova site which was to be acquired from the government near Highway 102. Evidence adduced has convinced me that Nova, at this time, not only knew of the efforts of Thurber to obtain regulatory approval, but was also aware of the opposition of the Department of Transportation to the erection of sign with message centre on the proposed site. In fact, MacKay attended with Thurber at the offices of senior official in Halifax who indicated that he would not approve the message centre. Thurber assured Nova that he would continue his efforts to get the message centre approved and Nova, in my opinion, agreed to go along with this course of action. The sign, including the message centre and its components, were delivered to the Nova premises in early March 1987. Personnel from Sign‑O‑Lite were sent to Nova in early March to train Nova staff on the use of the computer software, and in mid‑March, one Bell arrived from Ontario to install the Nova sign and others throughout the province. The hiring of contractor to excavate the foundation of the Nova sign was ordered by Thurber at the request of Bell in March and, as well, Nova allowed installation of the electrical connection for the software. Thurber left the employ of Sign‑O‑Lite in late March 1987 without having arranged for the regulatory approval for the sign. In early April of 1987 the concrete was poured and the steel posts for the sign were erected. The erection was consented to by Nova notwithstanding that no permit had been obtained, and that there were concerns about having message centre at that location. accept the evidence that the officers of Nova, namely MacKay and Mr. Masters, understood that there was possibility that permit would not be obtained for the message centre. It is clear from the evidence of Thurber, McKay and Masters, that nobody ever discussed what would happen if permit from the Department of Transportation was not issued. It should be noted that the original sign location was on land owned by the Department of Transportation. Negotiations had already been made by Nova to acquire this land prior to the contract with Sign‑O‑Lite and the approval for the transaction was received in November 1987, with the deed of conveyance being executed in January 1988. Evidence tendered at the hearing indicates that the Department of Transportation made its final decision not to permit the changeable message centre part of the sign on or about April 29th, 1987 although, prior to this date, representatives of the Department had telephoned both MacKay and Masters to advise of their decision. By this time the sign, minus the message centre, had been erected. In May of 1987, Mr. Gordon Wilson, the then General Manager of the Plaintiff, telephoned Mr. Masters and indicated that regulatory approval was not problem and the message centre would be erected. At this time Nova, although aware that approval had not been obtained and that there was opposition thereto by the Department of Transportation, agreed to pay to the Plaintiff the sum of $875.00 month, plus sales tax, until the installation of the message centre which was to be completed after the land was acquired from the Department of Transportation. In July of 1987, Nova paid to Sign‑O‑Lite the sum of $8,346.17 which was the balance of the deposit with monthly payments for May, June and July of 1987 in the amount of $962.50. Further payments of $962.50 were paid by Nova for the months of August, September and October 1987, at which time Nova ceased to make monthly payments. All parties agree that Nova has paid to Sign‑O‑Lite total of $16,197.53. The payments of $962.50 were made up of the agreed partial monthly rental of $875.00, plus provincial sales tax. Later in 1987, Mr. Armitage and Mr. Bradley became involved with Sign‑O‑Lite. Bradley, in particular, met with Mr. Masters of Nova in March of 1988, at which time he was advised by Masters that no permit had been issued by the Department of Transportation and that approval was not forthcoming. Although the evidence is somewhat sketchy on this point, it is my opinion that Sign‑O‑Lite wished to be allowed to erect the message centre notwithstanding the disapproval of the Department of Transportation and then let litigation proceed to determine the matter. accept the fact that Nova advised Sign‑O‑Lite that the Department of Transportation was good customer and they did not want to get into legal action with them. This apparently was the position of the parties throughout 1988. Bradley went to the Department of Transportation in Halifax following his meeting with Mr. Masters in an attempt to get approval for the message centre, or, in the alternative, to get some sort of an application to formally apply for approval. Nothing satisfactorily was resolved and there was no change in the Department's position. By letter of April 13th, 1988, Mr. MacCallum of the Department of Transportation advised Sign‑O‑Lite that the message centre would not be acceptable under theft advertising regulations. Again, on May 3rd, 1988, Mr. MacCallum wrote to Mr. Armitage, the principal officer and shareholder of Sign‑O‑Lite, advising that the decision had been made in May of 1987 not to allow the message centre, indicating that he was still not able to give approval and citing s. 46(1) of the pertinent legislation which allows Minister of Transportation to direct that sign be removed if he determines that it is menace or source of danger to traffic. Again the evidence is somewhat sketchy, but apparently some minor discussion took place in 1988 between Nova and Sign‑O‑Lite concerning the purchase of the existing sign by Nova, and the return of the message centre and software to Sign‑O‑Lite but nothing transpired. This action was commenced in January 1989. From May of 1987 until February of 1993, Nova used the signed as originally erected by Sign‑O‑Lite. In February of 1993, Nova arranged to have work done on the existing sign and to realign the various signs thereon. Since 1987 the message centre and software has remained on the Nova premises unused. Before proceeding with the issues in this action, and my decision, must make the comment that in my opinion this action should never have come on for trial. If there was ever case which begged for settlement between the parties, this is it. The inflexibility of both parties in attempting to settle has caused this problem, and after hearing the evidence and observing the demeanour of both Mr. Armitage for the Plaintiff, and Mr. MacKay for the Defendant, can understand the reason for this inflexible attitude. The issues in this action, in my opinion, boil down to simple question. Was the contract entered into by the parties, bearing the date December 1st, 1986, valid contract such as would entitle the plaintiff to claim damages for breach thereof? In the alternative, if the contract is not valid, is the plaintiff entitled to compensation for unjust enrichment by virtue of the use of the existing sign by Nova since May of 1987? In my opinion, if the contract is valid and existing contract, the plaintiff would be entitled to its damages for breach of contract pursuant to Clauses 34 and 24 of the written contract. The defendants contend that the contract is not valid or binding upon the parties by virtue of the provisions of Clause 40 of the written contract which was inserted by Mr. Thurber to allay the fears of Nova as to regulatory problems. It is necessary to examine this Clause 40 and also to determine whether parol evidence should be adduced concerning its interpretation. Clause 40 of the written contract reads as follows: "40. subject to approval for permit from dept. of highways". Mr. Thurber testified that he was aware of the concerns of Nova as to possible regulatory and bureaucratic problems and he inserted this clause to protect them. accept the submission by counsel for the defendants that this clause should be interpreted in "purposive" manner to protect the interests which the parties sought to protect by inserting the provision into an otherwise standard form document. The provision was inserted to meet the concern of Nova, and further accept the submission of the defendants that it would matter little from the point of view of Nova whether regulatory disapproval is manifested by not granting permit or by pronouncing the sign to be menace or source of danger to traffic on the highway and ordering its removal. was referred to the case of Leading Investments Limited v. Liebig (1986), 1986 CanLII 45 (SCC), 65 N.R. 209 (S.C.C.) where purposive interpretation was brought to bear on contract. LaForest J., interpreted the word "sale" in listing agreement to mean completed sale and not an agreement of purchase and sale. At p. 223 LaForest states: 'his is perhaps another way of saying that what the vendor seeks to obtain is sale not law suit" The plaintiff submits that the clause stands as it is and that no parol evidence should be admitted to indicate the dealings between the parties leading up to the execution of the written contract. With deference, think parol evidence should be admitted because in my opinion the wording of the Clause 40 is ambiguous and does not adequately address the problem which it attempted to resolve. The general nature of the rule relating to parol evidence is set out in the case of Shaw (Gordon) Concrete Products v. Design Collaborative Limited (1986), 72 N.S.R. (2d) 133. At page 137 the Nova Scotia Court of Appeal stated: "When written contract exists, the terms of the agreement govern the rights and obligations of the parties. The contract is deemed to state finally the intent of the parties and the terms upon which they agreed and prior negotiations and deemed to have been merged into and settled by the contract as finally stated. It is for that reason that courts have uniformly held that evidence of oral agreement is not admisible to add to, vary or contradict the written contract. However, oral agreements are admissible in evidence to explain ambiguous parts of the contract or to show the parties' agreement as to matter upon which the contract is incomplete or totally silent." (Emphasis mine). Also, in the case of Candlepin Machine Parts Limited v. Britten and Walker (1991), 109, N.S.R. (2d) 366, Chief Justice Glube stated at p. 374: "Before allowing extrinsic evidence to explain written agreement, there must be an ambiguity in the instrument or difficulty or uncertainty in the application of the facts; it may be admissible to explain the sense in which words are used, but not to contradict them. Where the words in the documents are clear, extrinsic or parol evidence is not admissible to alter or amend or explain the words (see Hollet v. McGrath (1972), N.S.R. (2d) 80 (T.D.))." In my opinion, there is ambiguity in Clause 40 and the parol evidence is necessary to explain the sense in which the words are used. Submissions were made as to the legal and other interpretation of the meaning of the words "approval" and "permit" but these submissions really don't assist me. Also conflicting evidence was given as to whether or not permit was required for the erection of the sign and the message centre. The plaintiff states that no permit is required and submits letter from the Department of Transportation dated April 1988, where it was indicated that "no permit is required". The defendants cite the Public Highways Act of the Province of Nova Scotia and regulations made thereunder respecting advertising signs on or near public highways in the Province of Nova Scotia, and submit that permit is required if an advertising sign is within 500 feet from the centre line of the travelled portion of the highway. In this case, the sign as erected is within 500 feet from the centre line of Highway 102 and notwithstanding the letter from the Department to Sign‑O‑Lite in April 1988, and after reading the regulations, it is my opinion that permit would be required. The plaintiff has submitted that the defendants did not prove the appropriate legislation and regulations but am convinced that can take judicial notice thereof by virtue of Section ll of the Evidence Act of the Province of Nova Scotia. Whether or not permit was required, in my opinion, makes little difference in view of the unequivocal decision of the Department in advising that it would not allow message centre at that location. Whether that disapproval came by either refusing to issue permit, or by the Minister ordering the sign removed, pursuant to the present section 48 of the Public Highways Act (formerly Section 48), really means little in light of my interpretation of Clause 40. Nova was concerned about the bureaucratic process and regulatory approval. Sign‑O‑Lite was aware of this through its manager who inserted Clause 40 in the agreement. It is not reasonable to expect Nova to erect the message centre and then get into an involved legal action with the Province of Nova Scotia, even though it was suggested that Sign‑O‑Lite might have been prepared to bear the cost thereof. The clause must be interpreted in the broadest possible way to give effect to the intentions of the parties. The onus was on the plaintiff as supposed expert in the field to get the necessary approval and to cut through all of the red tape, so to speak. This it did not do, and I accordingly find, that Clause 40 was a condition precedent to the Display Rental Agreement and since the approval was not forthcoming, the contract was null and void and the defendants are not liable for any breach thereof. The alternative claim put forth by the plaintiff in the event that it is determined that there is no enforceable contract between the parties, is that the plaintiff is entitled to compensation on the basis of unjust enrichment since it has supplied sign which has been used for the benefit of the defendants since May of 1987. As submitted by the plaintiff, unjust enrichment is part of the doctrine of restitution and the applicable principles have been stated in The Law of Restitution, P.D. Maddaugh and J.D. McCamus (Canada Law Book, Aurora, 1990 at pp. 465‑466: "Where contractual footing for the plaintiff's claim cannot be found, restitution of the value of money, goods or services provided may be sought through an action for money and had received, quantum valebat or quantum meruit. It follows from the restitutionary nature of these claims that the plaintiff must establish the conferral of benefit and that its extent will constitute the measure of the defendant's liability rather than the losses sustained by the plaintiff in conferring it. Further, it must be established that the plaintiff expected to be compensated for the benefit conferred. It is necessary to establish that the benefit was not intended as gift and that knowledge of that fact can fairly be attributed to the defendant at the time of his acceptance of the benefit. When the dispute concerns benefit transferred in the context of an offer of agreement, these elements in the plaintiffs case should be easily established. Hence, if the offeree declines the offer, the offeror will normally be entitled to recovery of money paid to the offeree, goods retained or their value, or the value of services rendered. If the offeree returns the goods only after enjoying some interim use, claim to recover reasonable rental value is allowed." In situation based on unjust enrichment, if the principles have been established, party is entitled to be compensated on quantum meruit basis. In the case before me, the contract did not come into existence because of the non‑fulfilment of condition precedent, namely approval by the Department of Transportation for the message centre. party can be compensated for unjust enrichment where contract does not come into existence due to the non‑fulfilment of condition precedent. See the case of Cyvel International Corporation v. Janif (1984) 18 C.LR. 82 (B.C.C.C.), where an agreement to install vinyl siding was subject to condition precedent that financing be arranged. In that case, the financing was not arranged and therefore no contract came into existence, however, the plaintiff had carried out the siding work. The British Columbia Court of Appeal concluded that the plaintiff was entitled to receive compensation on the basis of unjust enrichment. case somewhat analogous to the case at bar was the case of Manco Limited v. Atlantic Forest Products Limited (1971) 1971 CanLII 1077 (NB CA), 24 D.L.R. (3d) 194, where piece of equipment was provided to the defendants in anticipation of possible sale. No contract had been concluded but the New Brunswick Court of Appeal held that the plaintiff was entitled to be compensated on the basis of what would be considered reasonable rental for the equipment during the time it was used. In the case before me, Nova used the sign since May of 1987. In fact, in February of 1993, Nova made some alterations to the existing sign which, to some degree, would indicate that it wished to continue to make use of the sign. Indeed, on cross‑examination, Mr. MacKay testified that Nova was always prepared to pay "fair value" for the sign as installed, and the only debate was what amount was fair. Following the principles relating to unjust enrichment, there was conferral of benefit by Sign‑O‑Lite on Nova. Sign‑O‑Lite expected to be compensated and the benefit was not intended as gift. In my opinion Nova was fully aware of the entire situation from the beginning and took advantage of the benefit for some 74 months, as of June of 1993. Nova is not without fault in the overall circumstances of this case. The plaintiff has submitted that unjust enrichment be compensated at an appropriate monthly rental from April 19, 1987, to date, at the rate of $875.00 per month, plus provincial sales tax, less monies paid. On the other hand, Nova submits that the quantification of the unjust enrichment claim should be gross value of the signage as erected, less number of deductibles and less monies paid. I have come to the conclusion that the plaintiff is entitled to be compensated for unjust enrichment from the corporate defendant only, Nova Enterprises Limited. On the basis of the evidence placed before me, I have come to the conclusion that this compensation should be on the basis of a reasonable monthly rental which I find to be the sum of $875.00 per month, plus any provincial sales tax, if applicable, less some deductions which I shall set forth herein and less any monies paid. Nova has had the benefit of the sign as and from May 1st, 1987 to and including June 30th, 1993, total of 74 months, which would indicate total rental of $64,750.00. Total cash payments by Nova to Sign‑O‑Lite were in the amount of $16,197.53. There were two matters for which Nova claimed it should be compensated which feel bear some relationship. to the claim for unjust enrichment. They are the cost of shifting signs in February 1993 of $1,575.30 and the cost of electrical work done in 1987 in anticipation of the message centre installation and, also, the software connection. The defendant put forth the sum of $4,861.09 for the electrical work but am satisfied that the defendant has only proved the sum of $2,430.00 by reason of the voucher dated May 14th, 1987 (Exh. 3, Tab 13, Page 63). Because of the circumstances of the matter, am of the opinion that Nova should only be compensated for one‑half of the amounts for shifting the signs and the electrical work. Accordingly, my recapitulation of the claim allowed to the plaintiff for unjust enrichment from the corporate defendant only is as follows: Rental of sign on reasonable monthly basis 74 months at $875.00 $64,750.00 Less monies paid by Nova $16,197.53 Less Electrical installation 1/2 of $2,430.00 1,215.00 Less shifting signage 1/2 of $1,575.30 787.65 TOTAL 46349.82 To the amount of $46,549.82 should be added any provincial sales tax on the rental payments, if the same are applicable, and will hear argument if necessary. would further order that the plaintiff shall take possession of the message centre and the computer software, at its own expense, from the premises of Nova within sixty (60) days of the date of any order taken out pursuant to this decision, such message centre and software to be in the condition in which they now exist. And would further order that in the event that Nova wishes to purchase the sign presently existing on the site from Sign‑O‑Lite, it shall have the option of doing so by paying the sum of $7,350.15 to Sign‑O‑Lite within 60 days of the date of any order taken out pursuant to this decision. It should be noted that in calculating this amount have taken the estimate to replace the existing sign of $31,153.92 as of 1987 (Exh. 3, Tab 29, Page 107) and depreciated that figure annually at the rate of 20% over six and one‑half years. In the event that Nova does not wish to purchase the existing sign, Sign‑0‑Lite shall have the right to remove such sign from the land at its own expense within 60 days from receiving notice from Nova that it does not wish to purchase to sign, or within 60 days from the end of the 60 day period granted to Nova to purchase the sign. With regard to the counterclaim of Nova on the evidence presented to me, I can find no negligent misrepresentation on the part of Sign‑O‑Lite or its employees. All parties were fully aware of what was going on in relation to the Department of Transportation and, in my opinion, allowed the erection of the sign without knowing if approval would or would not be granted, although at the time of such erection both parties were aware of disapproval from certain officials of the Department. have dealt with some of the other claims advanced in the counterclaim, in the claim for unjust enrichment. I would, accordingly, dismiss the counterclaim without costs to any party. am prepared to hear counsel as to costs and pre‑judgment interest on the award for unjust enrichment. PALMETER, A.CJ., S.C. CANADA PROVINCE OF NOVA SCOTIA C.H.: 79254 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: 32262 B.C. LTD. and NOVA ENTERPRISES LIMITED, body corporate and JAMES MACKAY DECISION Palmeter, A.C.J., S.C.

The plaintiff sought damages for an alleged breach of a written contract or, in the alternative, damages for unjust enrichment. The defendants counterclaimed for damages based on alleged negligent misrepresentation by the plaintiff. The plaintiff had agreed to supply and erect a large sign for the defendant. The agreement was subject to receiving approval from the Department of Highways for a changeable message centre which was to be part of the sign. The plaintiff was to apply for the permit, as it was the signage expert. Although approval was never received, the sign was delivered and installed. The message centre was never activated, although the equipment was in place at the defendant's warehouse. Dismissing the claim for breach of contract and allowing the unjust enrichment claim, that government approval was a condition precedent to the agreement. Since approval was not forthcoming, the contract was null and void. The plaintiff's alternative claim for unjust enrichment was allowed against the corporate defendant, based on a reasonable monthly rental. The defendant's counterclaim was dismissed, as there was no negligent misrepresentation by the plaintiff.

6_1993canlii4548.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2014 SKQB 116 Date: 2014 04 21 Docket: Q. B. 577/2004 Judicial Centre: Regina BETWEEN: HUSKY OIL OPERATIONS LIMITED and HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF SASKATCHEWAN AS REPRESENTED BY THE MINISTER OF FINANCE FOR SASKATCHEWAN and SANJEL CORPORATION, TRICAN WELL SERVICE LTD., BJ SERVICES COMPANY CANADA THIRD PARTIES Overview Procedural Background Pleadings The Position of the Parties 18 Legislation 21 Issue 96 Analysis 97 Burden of Proof 97 Law in Relation to Interpretation of Tax Legislation 101 Saskatchewan Statutory Framework 107 Has Husky Established There Was an Agreement Between Saskatchewan Finance and the Third Parties to Have Husky Pay the PST on Contracts? 115 The Well Transaction Contracts 118 a) Has Husky proved the contracts for each well transaction? 118 b) What can be determined about the nature of the contracts in relation to the evidence produced? 122 Is Husky the user or consumer of cementing materials under the legislation? 140 Were the contracts between Husky and the the third parties supply and install contracts? 151 The manufacturing and processing cases 168 Has there been mistake of law in the payment of the PST by Husky? 171 Is the decision Burlington Resources Canada Ltd. v. British Columbia, 2013 BCSC 292, determinative of the issues? 176 Conclusion 179 QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2014 SKQB 116 Date: 2014 04 21 Docket: Q. B. 577/2004 Judicial Centre: Regina BETWEEN: HUSKY OIL OPERATIONS LIMITED and HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF SASKATCHEWAN AS REPRESENTED BY THE MINISTER OF FINANCE FOR SASKATCHEWAN and SANJEL CORPORATION, TRICAN WELL SERVICE LTD., BJ SERVICES COMPANY CANADA THIRD PARTIES Counsel: George McKenzie, Q.C./Kurt G. Wintermute for the plaintiff Sharon Pratchler, Q.C./Barbara Mysko/Thomson Irvine for the defendant Laurie Goldbach/Curtis Stewart/Alison Gray/Sheena Owen for the third parties JUDGMENT DAWSON J. April 21, 2014 [1] The plaintiff, Husky Oil Operations Limited, seeks refund from the defendant, Her Majesty the Queen in Right of the Province of Saskatchewan, of Saskatchewan Provincial Sales Tax it paid on well cementing contracts it had with the third parties, Sanjel Corporation, Trican Well Services Ltd. and BJ Services Company Canada for the period of 1996 to 2001. [2] The plaintiff, Husky Oil Operations Limited, (“Husky”) carries on the business of oil and gas exploration and development in Saskatchewan and elsewhere in Canada. In the course of its business, Husky engages contractors to perform various services on oil well sites. These contractors include the third parties, Sanjel Corporation (“Sanjel”), Trican Well Service Ltd. (“Trican”) and BJ Services Company Canada (“BJ Services”) (collectively “the third party contractors” or “cementing contractors”) who cement casing into the well bores. The third party contractors carry out their work by blending dry cement with additives, transporting it to the well site and mixing it with water to make slurry, which slurry is then injected around the casing in the well bore using high pressure pumps. Cement is also used in the servicing and repair of oil and gas wells and in the abandonment of non-producing wells. [3] Husky claims that between January 1, 1996 and February 28, 2001, the third party contractors improperly collected from Husky $393,289.73 in Saskatchewan Provincial Sales Tax (hereafter “PST”) which was remitted to the defendant, Her Majesty the Queen in Right of the Province of Saskatchewan as represented by the Minister of Finance for Saskatchewan (the “Saskatchewan Government”). The PST was paid by Husky to the third party contractors on cement and additives supplied and used by the third party contractors in the performance of their well cementing services as indicated in the third party invoices. The third party contractors collected the PST based on the invoices it charged to Husky and remitted it to the Saskatchewan Government. Husky sought refund of the PST it paid to the Saskatchewan Government. The Saskatchewan Government denied Husky’s refund. Husky then commenced this claim. [4] Husky claims that the cement and additives injected into the well bore constituted “tangible personal property” consumed or used by the third party contractors during the carrying out of supply and installation contract on the oil wells. Accordingly, Husky asserts that there was no sale of tangible personal property by the third party contractors to Husky, and, therefore, the PST collected from Husky and remitted by the third party contractors on the cement and additives was improperly collected and paid. Husky claims for the refund of the PST as against the Government of Saskatchewan. [5] The governing legislation during that period was The Education and Health Tax Act, R.S.S. 1978 c. E-3, as replaced by The Provincial Sales Tax Act, R.S.S. 1978, c. P-34.1 on June 27, 2000 (the “PST Act”). Those statutes imposed an obligation to pay PST on every consumer or user of tangible personal property purchased through retail sale in Saskatchewan. [6] The defendant, Her Majesty the Queen in Right of the Province of Saskatchewan as represented by the Minister of Finance for Saskatchewan (“Saskatchewan Government”), imposed PST under The Education and Health Tax Act (now The Provincial Sales Tax Act). The Saskatchewan Government denies Husky’s claim and asserts that the third party contractors properly levied and collected PST from Husky. [7] The Saskatchewan Government has joined the cementing contractors as third parties in this action. The Saskatchewan Government claims that if Husky was not liable to pay the PST, the third party contractors owe the Saskatchewan Government PST, in undetermined amounts, on materials they consumed in the performance of their contracts with Husky. [8] Sanjel, Trican and BJ Services, the third party contractors, deny the Saskatchewan Government’s third party claims and raise three defences: 1) that they relied on the Saskatchewan Government representations and interpretations in collecting and remitting the PST; 2) that the Saskatchewan Government’s claim against them is barred by ss. 50(4) of The Revenue and Financial Services Act, S.S. 1983, c. R-22.01 and The Limitation of Actions Act, R.S.S. 1978, c. L-15 (rep. by The Limitations Act, S.S. 2004, c. L-16.1); and (3) they say that the claims against them are without merit because Husky was the final user and consumer of the materials provided pursuant to the contracts between the third party contractors and Husky. [9] The main issue in this case is whether Husky is statutorily entitled to refund of the Saskatchewan Provincial Sales Tax it paid on well servicing contracts with the third parties during the claim period. PROCEDURAL BACKGROUND [10] Throughout the period of 1996 to 2001 (the claim period) Husky paid PST to the third party contractors on materials supplied by the third party contractors on the cementing contracts. The third party contractors remitted the PST to the Saskatchewan Government. [11] On October 27, 1999, Husky wrote to the Saskatchewan Government claiming $240,199.02 as refund of PST which Husky claimed it had paid in error for the period of January 1, 1996 to September 30, 1999, on materials supplied and installed by the third party contractors in the performance of well cementing services. [12] On November 29, 1999, the Saskatchewan Government denied Husky’s refund claim. [13] On October 26, 2001, Husky wrote to the Saskatchewan Government claiming $179,765.67 as refund of PST which Husky claimed it had paid in error for the period of October 1, 1999 to February 28, 2001 on materials supplied and installed by the third party contractors in the performance of well cementing services. [14] On July 23, 2002, the Saskatchewan Government denied Husky’s refund claim. [15] Husky filed its statement of claim in this action on March 26, 2002. At that point, it sought refund of PST in the amount of $419,964.69 for the period January 1, 1996 to February 25, 2001. The Government of Saskatchewan filed statement of defence on October 9, 2003. The Government of Saskatchewan filed its third party claims against each of the third parties on April 8, 2004. [16] On July 21, 2005, Husky filed an amended statement of claim wherein it reduced the amount claimed as refund of PST to $393,289.73. It reduced the amount of the claim by eliminating its claim involving other contractors. [17] The Government of Saskatchewan filed an amended statement of defence on January 22, 2007. [18] On October 28, 2004, Trican and Sanjel each filed statement of defence to the third party claim. On December 29, 2004, BJ Services filed statement of defence to the third party claim. [19] On November 28, 2005, the Government of Saskatchewan filed an amended notice of third party claim against each of the third parties. The third parties did not file any amended statement of defence to the amended third party claims. [20] It is also of note that on November 5, 2004, this Court ordered that the issue of calculation of the PST payable by the third parties on the third party claims, if any, was stayed until liability, if any, of the Government of Saskatchewan to pay Husky was determined. [21] On March 24, 2010, the third parties issued fourth party claim against Husky pursuant to the order of this Court dated March 4, 2010. At the same time, the issue of the third parties’ fourth party claim against Husky was stayed until the issues of liability and calculation of PST owing by the third parties, if any, had been determined. [22] The third parties brought an application to the court to be allowed to defend the liability of the Government of Saskatchewan to Husky at trial. An order was made, and the third parties were allowed to defend the liability of the Saskatchewan Government to Husky at the trial. [23] At trial, the matters to be adjudicated on the pleadings are whether Husky is entitled to refund of PST from the Saskatchewan Government, and if Husky is successful in that claim, whether the amount to be refunded to Husky is to be reduced by virtue of the limitation period set forth in s. 56 of the Department of National Revenue Act, R.S.C. 1985, c. N-16 (rep. by Canada Customs and Revenue Agency Act, S.C. 1999, c. 17). [24] The pleadings are of significance in this proceeding. Husky’s Amended Statement of Claim [25] Husky’s amended statement of claim states the following: 4. In the course of the Business, the Plaintiff contracts with: (a) drilling contractors to drill oil or gas wells and install casing in the hole being drilled; and (b) cementing service contractors to cement the casing in the hole; ... 5. The cementing service contractors supply and install cement (the “Cement”) to hold the casing in the well bore. 6. The Cement is mixture of water, dry cement and special additives which is manufactured, largely on site, by the cementing service contractors. 7. The Cement is injected into the well bore and around the casing by the cementing service contractors utilizing special high-pressure pumps. 10. The cementing service contractors and the reservoir stimulation service contractors (hereinafter collectively referred to as the “Contractors”) invoiced the Plaintiff for tax in the amount of $419,965.69 $393,289.73 (the “Sales Tax”) under The Education and Health Tax (now The Provincial Sales Tax Act, S.S. 2000, c. P-34.1, as amended) (the “Act”) in respect of the Cement and Materials. 11. From January 1, 1996 to February 28, 2001 the Contractors collected from the Plaintiff and remitted to the Defendant Sales Tax in respect of the Cement and Fracturing Fluid used by the Contractors in the performance of their services to the Plaintiff. 12. The Contractors are licensed under section of the Act. 13. On or about October 28, 1999 and October 13, 2001, the Plaintiff notified the Saskatchewan Minister of Finance (the “Minister”) in writing that the Sales Tax on the Cement and Fracturing Fluid had been charged to and paid in error by the Plaintiff and the Plaintiff asked that the Sales Tax be refunded with interest. 14. The Minister has failed or refused to refund the Sales Tax to the Plaintiff. 15. The Plaintiff pleads and relies upon, inter alia, sections 3(1)(c), 3(1)(h), 3(1)(i), 3(1)(m), 3(1)(o) and subsections 5(1), 5(2) and 5(6) of the Act and section 56 of The Revenue and Financial Services Act, S.S. 1983 c.R-22.01, as amended. 16. The Plaintiff is not liable for the payment of Sales Tax in respect of the Cement and Fracturing Fluid used by the Contractors in the performance of their contracts with the Plaintiff. 17. The contracts between the Plaintiff and the Contractors provide for the supply and/or installation of the Cement and Fracturing Fluid by the Contractors in the well bore or reservoir of the Plaintiff. 18. In the course of performing their contracts with the Plaintiff, the Contractors supplied and/or installed the Cement and Fracturing Fluid manufactured and consumed by them into the real property of the Plaintiff and the Contractors are deemed to be the consumer or user of the Cement and Fracturing Fluid for the purposes of the Act. 19. There is no sale of the Cement or Fracturing Fluid by the Contractors to the Plaintiff for the purpose of the Act. 21. The Plaintiff seeks judgment against the Defendant in the amount of $419,964.69 $393,289.73, representing the Sales Tax paid in error by the Plaintiff to the Defendant. 22. The Plaintiff seeks interest on the amount claimed from the date of payment of the Sales Tax to the date of judgment at the rate and in the manner prescribed by the regulations under The Revenue and Financial Services Act. ... Saskatchewan Government’s Amended Statement of Defence 2. The Government of Saskatchewan admits paragraphs 1-5, 7-8, 13, 14 of the Claim. 3. In reply to paragraphs and of the Claim the Government of Saskatchewan puts the Plaintiff to strict proof of where the cement and the fracturing fluid was manufactured. 4. In reply to paragraphs 10 and 11 of the Claim, the Government of Saskatchewan puts the Plaintiff to strict proof of the amounts of sales tax paid by the Plaintiff to the Contractors. 5. In reply to paragraph 12 of the Claim, the Government of Saskatchewan puts the Plaintiff to strict proof of the licensing of the Contractors. 6. In reply to paragraphs 16-20 of the Claim, the Government of Saskatchewan says that the contracts entered into between the Plaintiff and the Contractors provided for the distinct sale of both services, and tangible personal property as that term is defined in The Provincial Sales Tax Act, and that this was the intention of the Plaintiff and the Contractors in entering into the contracts. The Government of Saskatchewan specifically pleads that the contracts between the Plaintiff and the Contractors consist of more than the documents referred to in the Plaintiff’s Reply to the Government of Saskatchewan’s Demand for Particulars. The Government of Saskatchewan specifically pleads that the contracts referred to in the Plaintiff’s Reply to the Demand for Particulars are ambiguous, and that the true and full intention of the Plaintiff and the Contractors is not contained exclusively in the terms and conditions of those contracts. The Defendant specifically pleads that other documents outside the contracts referred to in the Reply to the Demand for Particulars form part of those contracts and set out additional terms and/or, set out the intentions of the Plaintiff and the Contractors in entering into the contracts. And as such, the Contractors properly levied and collected tax from the Plaintiff on the sale of the tangible personal property pursuant to section of The Provincial Sales Tax Act. 8. The Government of Saskatchewan pleads section 56(4) of The Revenue and Financial Services Act, and says that the portion of the Plaintiff’s Claim prior to March 26, 1998 is statute barred by virtue of the expiration of the limitation period contained therein. Amended Notice of Third Party Claim 1. The Defendant, Her Majesty the Queen in Right of the Province of Saskatchewan as represented by the Minister of Finance for Saskatchewan (hereinafter the “Government of Saskatchewan”) asserts this Claim against Sanjel Corporation, Trican Well Service Ltd., BJ Services Company Canada, Fracmaster Ltd., Redmen Services Ltd., Reedhycalog International (Canada) Limited operating under the business name and style of “Reda Services”, Flint Field Services Ltd., Tryton Tool Services Ltd., Haliburton Group Canada Inc., and Tucker Wireline Services Canada Inc. 2. The Claim of the Plaintiff against the Defendant and the Defendant’s Defence thereto, appear in the Plaintiff’s Statement of Claim dated March 26, 2002, the Defendant’s Demand for Particulars dated January 29, 2003, the Plaintiff’s Reply to the Demand for Particulars dated May 9, 2003 and the Defendant’s Statement of Defence dated September 9, 2003, and the Plaintiff’s Amended Statement of Claim amended July 20, 2005. 3. In the Amended Statement of Claim, the Plaintiff alleges that: (a) during the course of the Plaintiff’s business of oil and gas exploration and development it entered into contracts with various cementing and reservoir service contractors for the supply and installation of various materials at their well sites; (b) the various cementing and reservoir services contractors invoiced the Plaintiff for provincial sales tax (hereinafter “PST”) on the contracts’ materials in the amount of $393,289.73 $419,964.69, collected the PST on the Plaintiff’s behalf and remitted the same to the Defendant pursuant to The Education and Health Tax Act, now The Provincial Sales Tax Act, (hereinafter the “Act”); (c) in the course of performing their contracts with the Plaintiff, the various cementing and reservoir service contractors supplied and/or installed materials manufactured and consumed by them into the real property of the Plaintiff and therefore the various contractors are deemed to be the consumer or user of the materials for the purposes of the Act, and for this reason there is no sale of materials by the contractors to the Plaintiff leading to the result that it is the contractors and not the Plaintiff who are liable to PST under the Act; and (d) it is therefore entitled to refund of the $393,964.69 of PST collected by the contractors from the Plaintiff in error. 4. The Government of Saskatchewan repeats and adopts as if set out herein the facts and matters referred to in its Statement of Defence to the Statement of Claim. 5. Sanjel Corporation is an extra-provincial corporation duly registered to carry on business in the Province of Saskatchewan in the nature of oil and gas well servicing, and has its registered office in Calgary, Alberta, and is one of the various cementing and reservoir service contractors referred to in the Plaintiff’s Statement of Claim. 6. Trican Well Service Ltd. is an extra-provincial corporation duly registered to carry on business in the Province of Saskatchewan in the nature of the servicing of oil and gas wells, and has its registered office in Calgary, Alberta, and is one of the various cementing and reservoir services contractors referred to in the Plaintiff’s Statement of Claim. 7. BJ Services Company Canada is an extra-provincial corporation duly registered to carry on business in the Province of Saskatchewan in the nature of well cementing and stimulation, and pumping services and materials, and has its registered office in Halifax, Nova Scotia, and is one of the various cementing and reservoir service contractors referred to in the Plaintiff’s Statement of Claim. 8.15. If the Government of Saskatchewan is liable to refund PST to the Plaintiff collected and levied in error by Sanjel Corporation, Trican Well Service Ltd., BJ Services Company Canada, Fracmaster Ltd., Redmen Services Ltd., Reedhycalog International (Canada) Limited operating under the business name and style of “Reda Services”, Flint Field Services Ltd., Tryton Tool Services Ltd., Haliburton Group Canada Inc., and Tucker Wireline Services Canada Inc. (hereinafter “the Third Parties”) on their various contracts with the Plaintiff as referred to in the Plaintiff’s Statement of Claim, then the Government of Saskatchewan, pursuant to section 50(2) of The Revenue and Financial Services Act, is entitled to payment of PST from the Third Parties in yet undetermined amounts, on the basis that the Third Parties were liable under the Act to pay PST on the materials they consumed in performance of their contracts with the Plaintiff, together with interest on such amounts as permitted and prescribed by section 57(10(b) of The Revenue and Financial Services Act and the Regulations thereto. Third Party Sanjel Statement of Defence 1. The Third Party, Sanjel Corporation (“Sanjel”), denies the allegations contained in the Plaintiff’s Statement of Claim dated March 26, 2002, the Defendant’s Demand for Particulars dated January 29, 2003, the Plaintiff’s Reply to the Demand for Particulars dated May 9, 2003 and the Defendant’s Statement of Defence dated September 9, 2003. Sanjel specifically denies that the Plaintiff is entitled to judgment against the Defendant in the amount of $419,964.69, plus interest as alleged in the Statement of Claim or at all. 2. Sanjel denies the allegations contained in the Third Party Claim. 4. Sanjel admits the allegations of fact contained in paragraph 5. Sanjel further admits that it is one of the cementing and reservoir stimulation service contractors referred to in general terms in the Plaintiff’s Statement of Claim and in more particular terms in the Plaintiff’s Reply to the Demand for Particulars dated May 9, 2003. 6. In response to paragraph 15 of the Third Party Claim, Sanjel states, and the fact is, that by refusing or failing to refund the PST to the Plaintiff, Husky Oil Operating Limited (“HOOL”), as described in paragraphs 13 and 14 of the Statement of Claim, the Defendant/Third Party Claimant (the “Government of Saskatchewan”) represented that the PST was properly imposed on HOOL and that Sanjel was liable to collect and remit the PST to the Government of Saskatchewan. Sanjel was entitled to and did implicitly or explicitly reply on the Government of Saskatchewan’s position and actions in this regard and relied on the fact that such position and actions were taken in good faith. Interpretation Bulletins and other statements and positions authored or issued by the Government of Saskatchewan are consistent with this position. 7. In the alternative and in further response to paragraph 15 of the Third Party Claim, Sanjel states, and the fact is, if the Government of Saskatchewan is entitled to payment of PST, or PST and interest, on such amounts from Sanjel, Sanjel states that as the Government of Saskatchewan knew or ought to have known at least four years prior to March 22, 2004 that: (a) it was entitled to payment of some or all of the PST, or PST and interest, claimed; (b) Sanjel had not remitted some or all of the PST, or PST and interest, claimed; and (c) that failure to remit some or all of the PST, or PST and interest, warranted bringing proceeding and this action was not commenced until March 23, 2004, this action is statute-barred. In this respect, Sanjel pleads and relies upon the RFSA, including without limitation subsection 56(4), and upon The Limitations of Actions Act, R.S.S. 1978, Chapter L-15, as amended. 8. In the further alternative and in further response to paragraph 15 of the Third Party Claim, Sanjel states, and the fact is, if the Government of Saskatchewan is entitled to payment of PST or PST and interest on such amounts from Sanjel, Sanjel states that as the Government of Saskatchewan knew or ought to have know at least six years prior to March 22, 2004 that: (a) it was entitled to payment of some or all of the PST, or PST and interest, claimed; (b) Sanjel had not remitted some or all of the PST, or PST and interest, claimed; and (c) that failure to remit some or all of the PST, or PST and interest, warranted bringing proceeding and this action was not commenced until March 23, 2004, this action is statute-barred. In this respect, Sanjel pleads and relies upon The Limitations of Actions Act, R.S.S. 1978, Chapter L-15, as amended. 9. In further response to paragraph 15 of the Third Party Claim, Sanjel states, and the fact is, even if the Government of Saskatchewan is entitled to payment of PST from Sanjel, the Government of Saskatchewan’s claim for interest on the amount of PST allegedly owing is without merit, in whole or in part, particularly in light of the Government of Saskatchewan’s previous actions and representations as plead herein and their delay in advancing claim for such amounts as against Sanjel. Third Party BJ Services Statement of Defence 1. The Third Party, BJ Services Company Canada (“BJ Services”), denies the allegations contained in the Plaintiff’s Statement of Claim dated March 26, 2002, the Defendant’s Demand for Particulars dated January 29, 2003, the Plaintiff’s Reply to the Demand for Particulars dated May 9, 2003 and the Defendant’s Statement of Defence dated September 9, 2003. BJ Services specifically denies that the Plaintiff is entitled to judgment against the Defendant in the amount of $419,964.69, plus interest as alleged in the Statement of Claim or at all. 2. BJ Services denies the allegations contained in the Third Party Claim. 4. BJ Services admits the allegations of fact contained in paragraph 5. BJ Services further admits that it is one of the cementing and reservoir stimulation service contractors referred to in general terms in the Plaintiff’s Statement of Claim and in more particular terms in the Plaintiff’s Reply to the Demand for Particulars dated May 9, 2003. 6. In response to paragraph 15 of the Third Party Claim, BJ Services states, and the fact is, that by refusing or failing to refund the PST to the Plaintiff, Husky Oil Operating Limited (“HOOL”), as described in paragraphs 13 and 14 of the Statement of Claim, the Defendant/Third Party Claimant (the “Government of Saskatchewan”) represented that the PST was properly imposed on HOOL and that BJ Services was liable to collect and remit the PST to the Government of Saskatchewan. BJ Services was entitled to and did implicitly or explicitly reply on the Government of Saskatchewan’s position and actions in this regard and relied on the fact that such position and actions were taken in good faith. Interpretation Bulletins and other statements and positions authored or issued by the Government of Saskatchewan are consistent with this position. 7. In the alternative and in further response to paragraph 15 of the Third Party Claim, BJ Services states, and the fact is, if the Government of Saskatchewan is entitled to payment of PST, or PST and interest, on such amounts from BJ Services, BJ Services states that as the Government of Saskatchewan knew or ought to have known at least four years prior to March 22, 2004 that: (a) it was entitled to payment of some or all of the PST, or PST and interest, claimed; (b) BJ Services had not remitted some or all of the PST, or PST and interest, claimed; and (c) that failure to remit some or all of the PST, or PST and interest, warranted bringing proceeding and this action was not commenced until March 23, 2004, this action is statute-barred. In this respect, BJ Services pleads and relies upon the RFSA, including without limitation subsection 56(4), and upon The Limitations of Actions Act, R.S.S. 1978, Chapter L-15, as amended. 8. In the further alternative and in further response to paragraph 15 of the Third Party Claim, BJ Services states, and the fact is, if the Government of Saskatchewan is entitled to payment of PST or PST and interest on such amounts from BJ Services, BJ Services states that as the Government of Saskatchewan knew or ought to have know at least six years prior to March 22, 2004 that: (a) it was entitled to payment of some or all of the PST, or PST and interest, claimed; (b) BJ Services had not remitted some or all of the PST, or PST and interest, claimed; and (c) that failure to remit some or all of the PST, or PST and interest, warranted bringing proceeding and this action was not commenced until March 23, 2004, this action is statute-barred. In this respect, BJ Services pleads and relies upon The Limitations of Actions Act, R.S.S. 1978, Chapter L-15, as amended. 9. In further response to paragraph 15 of the Third Party Claim, BJ Services states, and the fact is, even if the Government of Saskatchewan is entitled to payment of PST from BJ Services, the Government of Saskatchewan’s claim for interest on the amount of PST allegedly owing is without merit, in whole or in part, particularly in light of the Government of Saskatchewan’s previous actions and representations as plead herein and their delay in advancing claim for such amounts as against BJ Services. Third Party Trican Statement of Defence 1. The Third Party, Trican Well Service Ltd. ("Trican"), denies the allegations contained in the Plaintiff's Statement of Claim dated March 26, 2002, the Defendant's Demand for Particulars dated January 29, 2003, the Plaintiff's Reply to the Demand for Particulars dated May 9, 2003 and the Defendant's Statement of Defence dated September 9, 2003. Trican specifically denies that the Plaintiff is entitled to judgment against the Defendant in the amount of $419,964.69, plus interest as alleged in the Statement of Claim or at all. 2. Trican denies the allegations contained in the Third Party Claim. 4. Trican admits the allegations of fact contained in paragraph 6. Trican further admits that it is one of the cementing and reservoir stimulation service contractors referred to in general terms in the Plaintiff's Statement of Claim and in more particular terms in the Plaintiff's Reply to the Demand for Particulars dated May 9, 2003. 6. In response to paragraph 15 of the Third Party Claim, Trican states, and the fact is, that by refusing or failing to refund the PST to the Plaintiff, Husky Oil Operating Limited ("HOOL"), as described in paragraphs 13 and 14 of the Statement of Claim, the Defendant/Third Party Claimant (the "Government of Saskatchewan") represented that the PST was properly imposed on HOOL and that Trican was liable to collect and remit the PST to the Government of Saskatchewan. Trican was entitled to and did implicitly or explicitly reply on the Government of Saskatchewan's position and actions in this regard and relied on the fact that such position and actions were taken in good faith. Interpretation Bulletins and other statements and positions authored or issued by the Government of Saskatchewan are consistent with this position. 7. In the alternative and in further response to paragraph 15 of the Third Party Claim, Trican states, and the fact is, if the Government of Saskatchewan is entitled to payment of PST, or PST and interest, on such amounts from Trican, Trican states that as the Government of Saskatchewan knew or ought to have known at least four years prior to March 22, 2004 that: (a) it was entitled to payment of some or all of the PST, or PST and interest, claimed; (b) Trican had not remitted some or all of the PST, or PST and interest, claimed; and (c) that failure to remit some or all of the PST, or PST and interest, warranted bringing proceeding and this action was not commenced until March 23, 2004, this action is statute‑barred. In this respect, Trican pleads and relies upon the RFSA, including without limitation subsection 56(4), and upon The Limitations of Actions Act, R.S.S. 1978, Chapter L‑15, as amended. 8. In the further alternative and in further response to paragraph 15 of the Third Party Claim, Trican states, and the fact is, if the Government of Saskatchewan is entitled to payment of PST or PST and interest on such amounts from Trican, Trican states that as the Government of Saskatchewan knew or ought to have know at least six years prior to March 22, 2004 that: (a) it was entitled to payment of some or all of the PST, or PST and interest, claimed; (b) Trican had not remitted some or all of the PST, or PST and interest, claimed; and (c) that failure to remit some or all of the PST, or PST and interest, warranted bringing proceeding and this action was not commenced until March 23, 2004, this action is statute‑barred. In this respect, Trican pleads and relies upon The Limitations of Actions Act, R.S.S. 1978, Chapter L‑15, as amended. 9. In further response to paragraph 15 of the Third Party Claim, Trican states, and the fact is, even if the Government of Saskatchewan is entitled to payment of PST from Trican, the Government of Saskatchewan’s claim for interest on the amount of PST allegedly owing is without merit, in whole or in part, particularly in light of the Government of Saskatchewan’s previous actions and representations as plead herein and their delay in advancing claim for such amounts as against Trican. THE POSITION OF THE PARTIES [26] Husky asserts that the PST had been improperly charged, collected and remitted in respect of the supply of the cement from the third parties to Husky as disclosed on the third parties’ invoices. Husky takes the position that there was no purchase or sale of the cement between Husky and the third party contractors at any time. [27] Husky asserts that the contractors had been charging PST on the cement listed in their invoices by virtue of an arrangement that they, the third party contractors, made with Saskatchewan Finance. Husky says this arrangement enabled the third party cementing contractors to avoid the need to self-assess PST in respect of the cement imported by them into Saskatchewan, for the third parties’ use when they performed well cementing services for Husky. Husky says there is no provision in the PST Act which imposes the liability for PST on Husky. Husky asserts that the denial of the refund claims on the basis of this long standing arrangement is not founded in law and cannot be sustained in this action as the basis for denying the refund claims.[1] [28] Husky asserts that the Saskatchewan Government denied the refund claims on the basis of long standing arrangement made between Saskatchewan Finance and the third party contractors, which allowed the third parties to collect PST from Husky, even though it was the third party contractors who were legally obligated to self-assess and pay PST. Husky asserts that it is this long standing arrangement alluded to in Plaintiff Third Party Exhibits 46 and 52 which was the basis of Saskatchewan Government’s decision to charge the PST to Husky and deny the tax to Husky refund. Husky asserts that there is no legislative authority to impose the PST on Husky and deny the refund. [29] It is Husky’s further position that the contracts between Husky and the third party contractors were service contracts. Husky asserts the contracts were clear and unambiguous. Husky asserts the contracts do not provide for the distinct sale of both services and tangible personal property. Husky says further that even if the contracts were not clear and unambiguous, the evidence discloses that the conduct and intention of the parties was that these were contracts for services and not separate contracts for the sale of tangible personal property and services. [30] It is Husky’s further position that the contracts between Husky and the third parties were supply and install contracts as referred to in ss. 5(6) of the PST Act and as such, the third parties are liable for the payment of the PST to the Saskatchewan Government. [31] It is Husky’s further position that it paid the PST in error. [32] The position of the Saskatchewan Government is that the third party cementing contractors sold tangible personal property to Husky and provided services to Husky at the same time. Saskatchewan Government asserts that Husky is obligated to pay the PST on the tangible personal property that it purchased from the third parties. Saskatchewan Government denies that there was any arrangement between the third party contractors and Saskatchewan Finance. Saskatchewan Government asserts that Husky and the third party contractors structured their agreements and contracts as they saw fit. Saskatchewan Government asserts that it simply acquiesced to the contractual choices of the parties. [33] Saskatchewan Government asserts that based on the nature and form of the agreements, the goods and services provided, and the conduct of the parties, Husky is responsible for the PST. Saskatchewan Government asserts the claim should be dismissed. [34] Saskatchewan Government asserts that if Husky was not the party responsible for the PST, then the third party contractors are liable for the payment of PST. [35] The third parties’ position is that Husky, and not the third parties, is liable for tax. The third parties assert that Husky was the final user and consumer of the materials provided, pursuant to the contracts between Husky and the third parties. The third parties assert this position is consistent with the allocation of risks and responsibilities in the contracts for which they bargained, as well as the long-standing industry practice that was followed by Husky and each of the third parties. The third parties submit that Husky’s claim, and in turn the Crown’s third party claim, should be dismissed.[2] [36] The third parties assert the contracts with Husky were not supply and install contracts. [37] The third parties assert that Husky was responsible to pay PST on the goods Husky purchased from the third parties on the well cementing contracts. LEGISLATION [38] During the period for which Husky claims refund, January 1, 1996 to February 28, 2001, the governing legislation was The Education and Health Tax Act, R.S.S. 1978, c. E-3 as replaced by The Provincial Sales Tax Act, S.S. 2000, c. P-41 in 2000. Subsections 5(1), (2) and (6) of the former The Education and Health Tax Act are identical to subsections 5(1), (2) and (6) of the PST Act. For ease of reference in the judgment, will refer to the legislative provision as the PST Act. [39] The relevant portions of the PST Act state: 3(1) In this Act: ... (b) "consideration" means money paid or agreed to be paid, property delivered or exchanged or agreed to be delivered or exchanged, things done or agreed to be done, rights or any other consideration whatsoever and includes service charge, transportation charge, or any other cost, or tax, levy or duty imposed by any level of government other than the tax imposed pursuant to Part IX of the Excise Tax Act (Canada), as amended from time to time, in respect of the sale of taxable service or tangible personal property whether or not the charge, cost, tax, levy or duty included is shown separately on any invoice or in the books of the seller or of the purchaser; (c) “consumer” means person who within the province purchases from vendor tangible personal property at retail sale in the province: (i) for his own consumption or for the consumption of other persons at his expense, or on behalf of, or as the agent for, principal who desires to acquire the property for consumption by the principal or other persons at the expense of the principal; ... (h) “retail sale” means sale, including sale by auction, of: (i) tangible personal property to consumer or user for the purposes of consumption or use and not for resale as tangible personal property; (ii) taxable services to user for the purpose of use and not for resale; (iii) tangible personal property to consumer or user who purchases the tangible personal property for the purpose of providing taxable service therewith; or ... (i) “sale” means: (i) any transfer, exchange, barter or lease, conditional or otherwise in any manner or by any means whatsoever, of tangible personal property for consideration; (ii) the furnishing of taxable service for consideration; and includes an agreement for sale of tangible personal property or taxable service whether absolute or conditional; (iii) the production, fabrication, processing, printing or imprinting of tangible personal property for consideration for person who furnishes either directly or indirectly all or part of the tangible personal property consumed or used in the production, fabrication, processing, printing or imprinting; or (iv) the transfer for consideration of the title to or possession of tangible personal property that has been produced, fabricated, processed, printed or imprinted to the order of the purchaser; (j) “tangible personal property” means personal property that can be seen or touched and includes gas used in the operation of internal combustion engines and turbines, and electricity; ... (m) “user” means any person who within the province: (i) purchases or leases from vendor tangible personal property at retail sale in the province for his own use or for the use of other persons at his expense, or on behalf of, or as the agent of, principal who desires to acquire the property for use by the principal or other persons at the expense of the principal; (ii) purchases or leases from vendor tangible personal property at retail sale in the province for the purpose of providing taxable service with such tangible personal property; (iii) purchases or leases taxable service from vendor for consideration for his own use or for the use of other persons at his expense, or on behalf of, or as agent of, principal who desires to acquire the taxable service for use by the principal or other persons at the expense of the principal; or (iv) purchases from vendor tangible personal property at retail sale in Saskatchewan for the purpose of promotional distribution, to the extent that the value of the property is greater than any payment intended to be and subsequently specifically made for that tangible personal property by the person to whom the property is to be provided; ... (o) “vendor” means any person who, within the province and in the course of his business or in the course of continuous or successive acts: (i) sells or leases tangible personal property to consumer or user at retail sale in the province for purposes of consumption or use, and not for resale; (ii) sells or leases taxable services to user at retail sale in the province for purposes of use and not for resale; or (iii) sells tangible personal property to consumer or user to be used by the consumer or user for the purpose of promotional distribution. (2) person to whom licence has been issued under this Act shall be deemed to be vendor unless the licence has been surrendered by him to the minister or has been cancelled or suspended by the minister. 4(1) No vendor shall sell any tangible personal property in the province at retail sale unless he holds licence to do so issued to him by the minister and the licence is in force at the time of the sale. (2) No vendor shall sell any taxable service in the province at retail sale for consideration unless he holds licence to do so or licence under subsection (1) issued to him by the minister and the licence is in force at the time of the sale. (3) The licence shall be issued without fee and, if required by the regulations, shall be kept posted, in the manner prescribed thereby, in the place where the vendor carries on his business. (4) The minister may cancel or suspend the licence of vendor for his failure to comply with any of the provisions of this Act or the regulations or Part III of The Revenue and Financial Services Act or the regulations made pursuant to that Part, and thereupon any other licence of the vendor issued by any authority in the province authorizing him to carry on his business shall become and be cancelled and of no effect. 5(1) Subject to subsections (9), (18), (20) and (21), every consumer of tangible personal property, purchased at retail sale in Saskatchewan shall pay to Her Majesty the Queen for the raising of general revenue, at the time of making his purchase, tax in respect of the consumption of the property and such tax shall be computed at the rate of 5% of the value of the property to be consumed. (2) Subject to subsections (9), (18), (20) and (21), every user of tangible personal property purchased at retail sale in Saskatchewan shall pay to Her Majesty the Queen for the raising of general revenue, at the time of making his purchase, tax in respect of the use of the property, and such tax shall be computed at the rate of 5% of the value of the property to be used. (6) Subject to the regulations, where contractor or manufacturer enters into contract for the supply and installation of tangible personal property and during the carrying out of the contract consumes or uses tangible personal property produced, fabricated, processed, printed or imprinted by him the contractor or manufacturer shall be deemed to be consumer or user of the tangible personal property and to have purchased the tangible personal property at retail sale in the province at the time of consumption or use at value that includes the total cost of the tangible personal property together with the total cost of its production, fabrication, processing, printing or imprinting to the time of such consumption or use. (9) Every person residing or ordinarily resident or carrying on business in Saskatchewan who brings into the province or who receives delivery in the province of tangible personal property for his own consumption or use, or for the consumption or use of other persons at his expense, or on behalf of or as agent for principal who desires to acquire the property for consumption or use by the principal or other persons at his expense, shall immediately report the matter to the minister or his appointee and forward or produce to him the invoice, if any, in respect of the property and any other information required by him with respect to the property and shall pay the same tax in respect of the consumption or use of the property as would have been payable if the property had been purchased at retail in the province at the price that would have been paid in Saskatchewan if the tangible personal property had been purchased at retail in the province. (12) The expression “price” in subsections (9) and (9.2) includes the value of the tangible personal property, transportation costs and any other costs whatsoever incurred in bringing the property into Saskatchewan and in preparing the property for use or consumption in Saskatchewan, borne or to be borne by the user or consumer or any person at his expense or on his behalf or as his agent. [40] The Revenue and Financial Services Act, S.S. 1983, c. R-22.01provides for the refund to taxpayer of an overpayment of PST and penalties for non-payment: 56(1) Subject to subsections (2) and (3), where collector or taxpayer has made an overpayment of tax, the minister: (a) shall refund the amount of the overpayment to the collector or taxpayer; and (b) may pay interest at the rate and in the manner prescribed in the regulations. (4) Notwithstanding The Limitations Act, no action may be brought to recover an overpayment after the expiration of: (a) in the case of tax payable pursuant to The Corporation Capital Tax Act, within four years from the date on which the corporation is required to file return pursuant to section 17 of that Act for the fiscal year in which the overpayment occurred; (b) in the case of tax payable pursuant to any other Act, four years from the date on which the overpayment occurred. 57(1) collector who fails to forward tax collected or deemed to be collected by him as required pursuant to this Part or any revenue Act or taxpayer who fails to pay tax payable by him as required pursuant to this Part or any revenue Act is liable to pay to Her Majesty, in addition to any other penalty: (a) penalty of 10% of the amount of the tax not forwarded or not paid to maximum penalty of $500 per return period; and (b) interest, at the rate and applied in the manner prescribed in the regulations, on the amount of tax not forwarded or not paid from the day on which it was required to be forwarded or paid. (2) Sections 60 to 64 apply mutatis mutandis for the purpose of recovering the amount of the penalty and interest imposed pursuant to this section. 58(1) Notwithstanding section 57, collector or taxpayer shall pay the penalty and interest set out in subsection (1.1) if: (a) an audit is performed on the collector or taxpayer pursuant to this Part or revenue Act; and (b) as result of that audit, the collector or taxpayer is assessed for tax collected, deemed to be collected or payable pursuant to this Part or any revenue Act. (1.1) In the circumstances mentioned in subsection (1), the collector or taxpayer is liable to pay to Her Majesty, in addition to any other penalty: (a) one of the following: (i) penalty equal to 10% of the amount of tax assessed; (ii) if collector has collected, but not remitted, any tax as required by this Part or revenue Act, penalty equal to 25% of the amount of tax assessed; (iii) if the minister is satisfied that collector who has collected tax has wilfully failed to remit the tax as required by this Part or revenue Act, penalty equal to the amount of tax assessed; and (b) interest, at the rate and applied in the manner prescribed in the regulations, on the amount of tax assessed, from the day on which the tax was required to be forwarded or paid. (2) Sections 60 to 64 apply mutatis mutandis for the purpose of recovering the amount of the penalty and interest imposed pursuant to this section. [41] The parties filed admissions for the purposes of the trial. These admissions were amended over the course of the trial and revised admissions were filed by the parties at the end of the trial. This admission document articulates the agreement of the parties as to the facts admitted, the documents admitted, and in respect of each document, the extent of the admission and/or the agreed use that the court may make of the admission. have used the admissions as agreed to by the parties. [42] Husky Oil Operations Limited is corporation registered to carry on business in Saskatchewan. It is in the business of oil and gas exploration and development. Husky has its head office in Calgary, Alberta. It also carries on business elsewhere in Canada. [43] The Government of Saskatchewan imposed PST under The Education and Health Tax Act, R.S.S. 1978, c. E-3 as replaced by The Provincial Sales Tax Act, R.S.S. 1978, c. P-34.1) (the PST Act) during the period of this claim. [44] Each of the third parties, Sanjel, Trican and BJ Services, was well servicing corporation that provided well cementing materials and services to Husky during the period of the claim. The third parties are referred to as contractors or third party contractors. [45] The Canadian Association of Petroleum Producers (CAPP) is member group representing Canadian’s oil and natural gas industry. Approximately 170 member companies belong to CAPP. During the claim period, Husky Energy Inc., Husky’s parent corporation, was member of CAPP. CAPP was involved in discussions with the Saskatchewan Government regarding the application of PST on well cementing contracts, including those involving Husky. [46] The Petroleum Services Association of Canada (PSAC) is an oil industry organization. It represented the service, supply and manufacturing sectors within the petroleum industry. It was an industry advocate group. Each of the third parties was member of PSAC and participated at times in its activities. PSAC was involved in discussions with the Government of Saskatchewan regarding the application of PST on well cementing contracts, including those involving Husky. The actions of PSAC did not bind its members. [47] SPIN Tax Solutions Inc. is tax consulting group. It provided tax advice to various corporations. SPIN Tax was involved in preparing and advocating for Husky’s refund claim from the Saskatchewan Government. [48] Husky is large corporation which undertakes the drilling of oil wells in many places. The business unit of Husky determined where Husky would drill wells. The business unit researched areas for oil exploration, acquired the land, and determined, in terms of budget, whether oil and gas wells could be drilled on certain lands. [49] Drilling completions of wells are done in two phases. Drilling is the initial well construction. Completion is the phase of bringing the oil and gas to the surface for sale. This lawsuit relates to the drilling phase or initial well construction phase of well. [50] William Ellsworth is chemical engineer who was employed by Husky in Calgary, Alberta as the Frontier Manager, Exploration and New Ventures. Mr. Ellsworth was the engineering technical leader and engineering manager in the Drillings and Completions Department of Husky in the period 1996 to 2001. The Drilling and Completion Department of Husky was responsible for the design of oil and gas wells, the cost estimating of gas wells, and the technical monitoring of the well and the sub-surface. That department was also responsible for the soliciting of bids for oil well drilling, quotes for services, analyzing of the bids, and making recommendations for the acceptance of bids. That department, during the period of Husky’s claim, had approximately 16 employees, which included drilling engineers, completion engineers and completion technicians. [51] Husky’s drilling engineer was responsible for conducting the research of an area where Husky was considering drilling campaign. That individual would design the oil wells on paper and consider contracting services for the wells. After the services were completed, this same person was the individual in charge of paying the invoices. [52] The engineering group of Husky was the group that dealt with the contractors for well sub-surface; that is from the wellhead down. The engineering group contracted with the drilling and the completions group for sub-surface services. The engineering group designed the casing and selected the type of casing attachments for wells. The engineering group also contracted for cementing services and drilling fluid services. [53] Once Husky determined that it would drill or build well, Husky engaged contractors to build the well on the locations. Such contractors would include earth movers, drilling contractors and cementing contractors like the third parties. [54] During the period of 1996 to 2001, Husky was drilling wells in the Lloydminster area. These wells were “heavy oil wells” with typical depth of about 600 metres. The drilling process for single heavy oil well in the Lloydminster area took approximately three days. This type of drilling involved two casing strings. One was the surface casing, which went down to depth of about 100 metres from the surface, and the second was the production casing, which went down to depth of about 600 metres from the surface. Such oil and gas wells were drilled in campaign, that is, numerous wells were drilled at one time to reduce costs. [55] In the period of 1996 to 2001, the average cost to build heavy oil well in the Lloydminster area was around $130,000.00. The average cost of cementing such well was between $4,000.00 and $7,000.00 per well. The wells in the Lloydminster area were less complex than other locations, because they were relatively shallow wells, with the depth being only 600 metres. [56] Once Husky had decided to build campaign of wells, it set about to contract with contractors for the drilling and cementing of the wells. The third party contractors were contractors which cemented wells for Husky. [57] The process through which Husky contracted with the third parties for the cementing was similar for each well. The first step in the process of contracting with third party cement contractor was for Husky to ask contractors to submit bid for the well cementing. This type of request from Husky was sent to the third party contractors. In such requests, Husky invited the third party contractors to submit bid to Husky for the price the contractor would charge Husky for goods and services to cement the well or campaign of wells. Husky usually provided the contractors with the detailed specifications for the cementing of the well when it sought these bids. In many cases, but not all cases, Husky sent the contractors specific document requesting bid which was contained in document titled “Request for Quotation”, often referred to as an “RFQ”. In other cases, Husky simply contacted the third party contractors, either in writing or by telephone, and asked the contractors to submit bid based on the specifications that Husky identified. [58] Husky’s evidence respecting their requests or invitations to the third party contractors seeking the submissions of bids for the cementing of the wells which are the subject of this claim is not complete. Husky did not enter into evidence any document for the year 1996 wherein it sought bid from the third parties. single request for bid (not an RFQ), for the year 1997 was entered into evidence (Exhibit D7). That request was letter from Husky Oil, Lloydminster office, to Nowsco requesting Nowsco to supply bid for what might be described as remediation work. That invitation sought bids from Nowsco for pumper and service set-up charges, mileage, cement blends, including the prices for any specialty cement blends, directed at remediating gas migration and any other additional hourly costs. [59] Husky submitted into evidence numerous RFQs for the period of 1998 to 2001 and asked the court to consider them as representative of the RFQs which Husky was using in 1996 and 1997. [60] As well, there was no evidence before the court as to which invoices from the third party contractors related to which RFQs nor which invoices were not based on RFQs but based on purchase orders. [61] Most of the RFQs, in the time period of 1998 to 2001, were similar in their wording, although not identical. The following is summary of the RFQs tendered into evidence: October 10, 1997, GM remediation 15 well program, Husky Lloydminster office letter requesting price quote from Nowsco, Exhibit D7 November 30, 1998, Surface and Production Casing, Husky Calgary office RFQ to Trican, Exhibit PT 132 Undated by replies are to be received by December 7, 1998, Primary Cementing, Husky Calgary office RFQ to Trican, Exhibit PT 133 February 26, 1999, Abandonment program 90 Saskatchewan locations and up to Alberta locations, Husky Lloydminster office RFQ to Nowsco, Exhibit D11 May 5, 1999, CAL 99-1478 Surface Casing Hussar area, Husky Calgary office RFQ to Nowsco, Exhibit PT 139 May 25, 1999, CAL 99-1483 Lloydminster Surface and Production Casing, Husky Calgary office RFQ to Nowsco, Exhibit D13 September 16, 1999, CAL 99-1517 Lovett River Alberta location Surface and Production Casing, Husky Calgary office RFQ to Nowsco, Exhibit D21 September 13, 1999, CAL 99-1509 Lloydminster Surface and Production, Husky Calgary office RFQ to Nowsco, Exhibit D14 (Same as PT 64) April 4, 2000, RDB-018-2000 Up to Alberta locations and 100 Saskatchewan locations Abandonment, Husky Lloydminster office RFQ to Nowsco, Exhibit D15 (D28 is the same document; PT 144 is partial copy) March 2, 2001, RDB-015-2001-P Abandonment 100 Saskatchewan wells, Husky Lloydminster RFQ to Trican, Exhibit PT147 [62] The following are the dates and identification of the bids in response to RFQs tendered into evidence: January of 1997, Rush Lake Surface and Production, Nowsco bid [Exhibit] T19 (Same as D5) April 7, 1997, Abandonment, Trican bid from Erv Nixdorf, [Exhibit] 9A Acceptance of bid with bid attached January 13, 1998, Surface and Production, Trican bid from Dale Dusterhoft, [Exhibit] 11A April 22, 1998, Abandonment, Trican bid from Erv Nixdorf, [Exhibit] 12A November 23, 1998, Lloydminster Surface and Production, Nowsco bid from Calvin Ross, [Exhibit] December 4, 1998, Surface Casing, Trican bid from Dale Dusterhoft, [Exhibit] 134 December 7, 1998, Lloydminster Surface and Production, Nowsco bid from Calvin Ross, [Exhibit] 24A (D and PT 67 are redacted versions) December 9, 1998, CAL 98-1444 Surface and Production Casing, Trican bid from Dale Dusterhoft, [Exhibit] PT 135 December 9, 1998, CAL 98-1438 Surface and Production Casing, Trican bid from Dale Dusterhoft, [Exhibit] 13A February 26, 1999, GM remediation 15 well program, Nowsco bid, [Exhibit] 10 March 10, 1999, RBD-004-99 Abandonment, Nowsco bid from Jeff Latos, [Exhibit] 12 March 10, 1999, RBD-004-99 Abandonment, Trican bid from Dale Dusterhoft, [Exhibit] 14A May 12, 1999, CAL 98-1478, Trican bid from Leonard Berglund, [Exhibit] PT 140 (Bid is not attached; only the cover letter) May 12, 1999, Abandonment Option #1, Trican bid from Dale Dusterhoft, [Exhibit] PT 150 May 12, 1999, Abandonment Option #2, Trican bid from Dale Dusterhoft, [Exhibit PT 149] May 13, 1999, Surface and Production, Trican bid from Dale Dusterhoft, [Exhibit] PT 18 (Same as 6) May 26, 1999, Production, Nowsco bid from Calvin Ross, [Exhibit] 17 (Same as PT 68) (Exhibit of the Defendant Government’s Brief) [63] The Request for Quotation document, was standard type document. As stated, it was request to third party contractors to provide quote for cementing services to Husky for the campaign of wells. [64] The RFQ was prepared by the purchasing department of Husky with technical input from the Drilling and Completions Department on every project. An RFQ would typically go to three or more contractors (referred to as bidders in the RFQ) because Husky had requirement to have minimum of three bidders on any contract. [65] The RFQ provided instructions to bidders in relation to the way in which the third party contractors were to submit their bids. The RFQ described the scope of the work to be undertaken; described the terms and conditions for the bid; and included an acknowledgement form. [66] In this case, in relation to the first period of time for which Husky sought refund of PST, Husky sent an RFQ to cementing contractors for campaign of 150 to 300 wells it intended to drill in the Lloydminster area in September of 1999. Husky asked the third parties to provide quote for cementing services for heavy oil and gas wells in the Lloydminster area. The RFQ was approximately 12 pages long and it contained various information. (Plaintiff Third Party Exhibit 64) (Plaintiff Third Party Exhibit 132 is request for quotation to Nowsco on September 13, 1999.) [67] In the RFQ Exhibit 64, under the pre-submission information, the scope of work to be undertaken by any successful third party cementing contractor was described in the document. 1.1 Scope of the Project The purpose of this Request for Quotation (RFQ) CAL 99-1509 is to invite Bid Proposals from interested firms for the supply of Cementing Services for our Lloydminster Area Program. Please submit two separate proposals Bid One for 150 Wells and Bid Two for 300 Wells. [68] The RFQ also articulated the evaluation criteria. That is, it identified for the cementing contractors the evaluation criteria Husky used in determining the successful contractor. In the RFQ, Husky asked the cementing contractor to address: the cost benefit to Husky of awarding the contract to that contractor; the experience of the cementing contractor; the equipment that the cementing contractor possessed to accomplish the job; whether the contractor was physically able to conduct the work to the satisfaction of Husky; and, the contractor’s ability to deliver product. The evaluation criteria included, as set out in para. 1.3(a), (b), (c) and (d), the following: 1.3 Evaluation Criteria a. Financial cost/benefit to Husky Oil. b. The bidder’s organization and technical capability to provide services c. The bidder’s ability to deliver product and/or service in timely manner. d. Other types of value added services the bidder could provide. [Emphasis added] [69] Paragraph 1.6 of the RFQ indicated that the successful bidder would be required to enter into subsequent legal agreement with Husky. Paragraph 1.6 stated: 1.6 Legal Agreement The successful Bidder will be required to enter into legal agreement with Husky Oil. Such legal agreement will be prepared by Husky Oil and will embody the terms of the RFQ, the enclosed Terms and Conditions and any subsequent negotiations and clarification. Any exceptions to these documents shall be clearly identified in your response. The law applicable to this RFQ and any subsequent Husky purchase agreements shall be the law in effect in the Province of Alberta. Except for an appeal from an Alberta Court to the Supreme Court of Canada, no action in respect to this RFQ or any subsequent Husky purchase agreements shall be brought or maintained in any court other than in court of the appropriate jurisdiction of the Province of Alberta. Method of payment is governed by Husky Oil Policy as well as applicable Federal and Provincial Laws. [Emphasis added] As will be outlined in due course, despite this clause in the RFQ that the parties were required to enter into further legal agreement, Husky and the third parties did not always enter into subsequent legal agreements. Where they did enter into such agreements, they were titled Service Agreements, but the parties referred to them as Master Services Agreements (MSAs). The RFQ, and the Terms and Conditions of the RFQ, were to be embodied in the further legal agreement, the MSA. [70] The RFQ also included other instructions to bidders. Paragraph 2.1.11 of the RFQ stated that the bidder was encouraged to submit alternate bids: 2.1.11 Bidder is encouraged to submit alternative bids in addition to it’s base bid, where it considers the alternative to be technical and/or an economic improvement over the base requirements. Alternative bids shall be clearly identified indicating technical and/or economic differences from the base bid. [71] In para. 2.1.12, the RFQ specified that the contractors should identify what discount off the contractor’s list price (the contractor’s book price) Husky could expect to receive. It stated the following: 2.1.12 All prices should reflect list price and Husky’s current discount level off list price. With market conditions as they are today, it is our expectation to see additional discounts to reflect these condition periods. It is obvious from the terms of the RFQ that Husky sought to receive the best price from the third parties and it is clear Husky was aware that the third parties had book prices for materials which they utilized in bidding the contracts. [72] The RFQ also set out the scope of the work, which in this case was heavy oil and gas cementing services in the Lloydminster area. In the fourth quarter of 1999, Husky sought bid for 50 wells, and in 2000 for 250 wells. [73] The next part of the RFQ document identified the particular and specific details of the scope of work Husky sought. Plaintiff Third Party Exhibit 64 RFQ was entitled “Hog Cementing Q4-1999 2000 Routine Hog Well”. Husky, in this portion of the RFQ, identified to the cementing contractors (the bidders) that the wells that they were expecting to drill would be generic, regularly designed wells with nothing special attached. [74] This part of the RFQ contained the specifications for the wells. Husky indicated the dimensions of the surface hole and the size of the surface hole and identified the diameter of the drill bit that would need to be used. The RFQ also identified the production casing specifications, including the open hole size, the casing size and the casing depth. Husky expected that the third party cementing contractors would use this information to calculate the volume of cement needed for each job, based on the specifications provided by Husky in the RFQ. [75] The next thing that was included in the specifications in the RFQ was the blend of cement. Husky identified the particular blend of cement that Husky wanted the contractor to provide. The blend identified was usually what Husky had typically used as surface casing recipe or the cement blend typically used in cementing job. The RFQ set out the blend of cement and the additives required by Husky and which the cementing contractor would provide if it successfully bid the campaign. [76] Each cementing contractor had variations in their blends of cement and variations in the yield of the cement. In the RFQ, Husky asked the contractor to take the base information about the wells and do their own calculations on the amount of cement the contractor believed was required. [77] In the next part of the RFQ, Husky instructed the bidders to bid the contract by providing breakdown of the various bid charges for routine wells. The RFQ stated as follows: Breakdown of Bid Charges (for routine wells only) Price per tonne FOB location to be constant throughout the Lloyd area (one price) including all additive and blending charges. For the case of an abandonment, please include the cost per tonne of Right Angle Set cement. Fixed set-up charges to be constant throughout the Lloyd area, regardless of depth. specify the pumping time included with the set-up charge Fixed mileage rate independent of the number of vehicles by cementing company used Fixed plug charges No additional charges other than those in the specified additional charges section. [78] Here, the RFQ asked for bid for cement based on price per tonne, FOB location. This meant Husky wanted the contract to be bid on price per tonne for the cement delivered to the location of the well. The price of cement delivered included all of the third party cement contractor’s transport charges. It was the cost per tonne of cement that the contractor would bid for cement delivered to Husky at the Husky well site. [79] The RFQ demanded that the price bid by the contractors for the cement to be FOB location and wanted one price per tonne, that is, constant price per tonne throughout the Lloydminster area. That is, Husky wanted bid of one price for all the wells. That one price per tonne was to include all additives to the cement and the blending charges. So Husky sought one price, per tonne of cement, for all cement bids for all wells, no matter what additives the contractor chose. In addition, if the contractor was bidding an abandonment well, Husky asked that the contractor bid the price per tonne for right angle cement set, which was price for only cementing the well head of an abandoned well to close the well. [80] As well, in the breakdown of the bid charges, Husky demanded fixed set up charge, which meant Husky sought bid for the one price for each set up, no matter where the well was. The contractors were to specify the pumping time, including set up charge, which was price for the time to mix and pump the cement slurry to finish the job. [81] Husky, in the RFQ, also asked that there would be specified pumping time included with the set-up charge in the bid. That referred to how long the cement contractor estimated it would take to mix and pump the cement slurry to complete the job. Husky wanted to know how long they would have these service contractors on location at the well site before the contractors would start adding additional charges. [82] Husky, in seeking breakdown of the bid in this manner, was aware that the third party contractors blended the cement with their proprietary additives at the cementing contractor’s bulk station before the cement was loaded and shipped to the well site. [83] The RFQ asked for the bid to be broken down between price for cement and charge for set-up. Husky was estimating the type of well conditions that they expected. However, the actual conditions at the well were often variable and Husky were attempting to control costs. [84] Husky’s RFQ’s asked the contractors to bid for one component that was fixed (price per tonne of cement) and one component that was variable (the amount of cement). Husky did not ask the contractors to bid for single fixed price for the completion of the cementing job. Husky did not seek to contract with the contractors for single price for the completion of the well because Husky believed that contractors would add cushion into the proposed price to cover off the risk to the contractors of additional materials being needed or longer time being needed to complete the cement job. Husky wanted the contracts with the third party contractors to be structured in the fashion set out in the RFQ. Husky intended to, and did, assume all the risks associated with building the well in return for lower cost to build the well. [85] As stated, when Husky requested bid be quoted as “FOB”, freight on board location, Husky asked for price per tonne of the dry cement blend delivered to the well site. The contractors included the blending and hauling charges for the cement in this one price per tonne, which was price per tonne for the blended cement delivered to the well site. This allowed Husky to make easy comparisons between the bids. [86] While Husky chose not to structure the contracts with the third parties as single fixed price for the completion of the cementing job, it is clear that Husky’s primary purpose in contracting the cementing contractors was to have the well cemented. Husky would not buy cement from the third parties independently from engaging the contractors to cement the wells. Nor would Husky engage the contractors to cement the well independently from purchasing the cement and additives from the contractors. [87] The RFQ also required the contractors to provide bid for any additional charges. These additional charges might be incurred in situations where the cementing contractor arrived at the well site, but the casing had not yet been installed, and the contractor had to wait for period of time. The RFQ required the contractors to identify how long the contractors would wait before they would start to charge Husky extra for the waiting time. As well, if the job took longer than estimated in the bid, Husky wanted to know what Husky would be charged as an additional pumping charge per hour. [88] The RFQ also required the bids to be submitted for alternate cement blends. While Husky instructed the contractors to submit bid for the particular cement blend that Husky identified, Husky also asked the cementing contractor to identify if it had an alternate cement blend that it deemed appropriate. Husky asked the contractor to bid the cost for any alternate blend in addition to the cement blends requested by Husky. Mr. Ellsworth indicated that in preparation for drilling, the Husky engineers would have researched the area and come up with what they thought was the appropriate cement blend to use in the cementing of the surface casing and the production casing. In this part of the RFQ, Husky was requesting that if the cementing contractors had alternate experience in the area, and if the contractors identified alternate cement blends that would help Husky improve the process of drilling the wells, the contractor should identify that and submit an alternate bid for use of the alternate cement blend. As well, Husky asked for the cement contractors to include in the bid any value added to Husky if Husky used the proposed cement blends recommended by the contractor. Here, Husky was looking for lower cost or better product, including, for example, product that would reduce the problems with gas migration. [89] In the RFQ, at the end of the Scope of Work section, Husky, under “Other Issues”, included request for percentage off book price. Husky was aware that all cementing contractors had book price, which was catalogue for their standard prices for products. Husky wanted the contractors to identify what reduction off its book price the contractor was prepared to give Husky in the bid. [90] The RFQ also included, in part 4.0, bidder acknowledgement form. There, the bidder acknowledged that they would quote for the job and the bidder signed the form. [91] The RFQ sent out by Husky for bids for abandonment wells Plaintiff Third Party Exhibit 144) contained similar wording. The scope of the project was as indicated in para. 1.1, and stated the following: 1.1 Scope of the Project The purpose of this Request for Quotation RFQ RDB- is to invite Bid Quotations from interested firms for the supply of cementing requirements for the 2000 abandonment program. [92] Paragraph 1.3 of Exhibit 144 set out evaluation criteria, which was similar to the RFQ for cementing wells. It sought the bidder’s organization and technical capability to provide services; the bidder’s ability to deliver product and/or services in timely manner; and other types of value-added services the bidder could provide. [93] In all of the RFQs, Husky required that sales tax was to be set out separately in the bid. That is, Husky dictated that the PST was to be identified and set out separately in the bid. [94] It appeared that at the end of all of the RFQs was section of the document known as “Terms and Conditions”. These were the standard terms and conditions that were attached to the RFQ. In Exhibit D13, the Terms and Conditions were set out at s. 5.0. The Terms and Conditions state: 1. Entire Agreement This Request for Quotation, including these Terms and Conditions, any specifications and drawings attached, and any additional Terms and Conditions incorporated into and attached hereto, when accepted by the Vendor shall constitute the entire agreement between the parties (the “Agreement”). Husky Oil Ltd. (and/or its subsidiaries) shall be referred to as Husky throughout this Agreement. The Vendor’s written acceptance of this Agreement, the shipment of any goods by the Vendor or the Vendor’s commencement of performance of work hereunder shall constitute an acceptance of this Agreement. The Agreement shall not be altered, amended or modified in any way whatsoever without Husky’s written approval. Compliance Vendor warrants that all goods and services provided hereunder shall have been produced, sold, delivered and furnished in strict compliance with all applicable laws and regulations. Vendor shall execute and deliver such documents as may be required to effect compliance. 4. Warranties and Guarantees Vendor warrants it will have unfettered right to sell the goods and services at the time the title is to pass; Husky will have quiet possession of the goods and services free of any charge or encumbrance; all goods and services to be furnished hereunder conform and will conform to the specifications, drawings or other descriptions furnished by Husky and will perform as specified therein; the goods and services will be fit and sufficient for the purpose intended not withstanding [sic] that the goods and services or any of them or any part thereof are described in patent or by trade name; Vendor will, at Vendor’s expense either repair, or at Husky’s option replace, any part of the goods and services furnished under this Agreement and accepted by Husky in which defects in workmanship, materials or design are discovered within one year from the date on which such goods and services are employed by Husky and, at Husky’s option, shall repair or bear the cost of repairing any damage caused by any such defect. This warranty period shall be extended by the time during which any of the goods and services supplied were out of service by reason of defects which Vendor is required to repair or replace. Repairs shall be done at Husky’s convenience and at Husky’s option on its premises unless the repairs are of such of nature as to require repair facilities that are not or cannot be made available on Husky’s premises. Repairs shall be done expeditiously. The foregoing warranties shall apply to all repairs or replacements. All expenses attendant upon such repair or replacement including any freight, custom duties, and brokerage fees shall be for Vendor’s account. The Vendor’s obligation to repair or replace shall extend to defects which were revealed or should have been revealed on Husky’s examination prior to acceptance. [Emphasis added] The terms provided in the RFQ and any additional terms incorporated constituted the entire agreement between the parties. [95] The Terms and Conditions attached to the RFQs included reference, in para. 16, to “taxes and duties”. The document stated: All invoices submitted by the vendor shall show separate item applicable Duty, Goods and Services Tax (GST) and Sales tax. The Vendor shall furnish to Husky all documentation required for GST purposes. The Vendor shall furnish to Husky, upon request, all documentation required for duty drawback purposes and all customs invoices, declaration and evidence of import costs as may be reasonably required for any goods and services provided hereunder. [Emphasis added] Paragraph 22 of Terms and Conditions section stated as follows: 22. Inspection: Husky or its representatives shall have the right to inspect the goods and services provided hereunder at any time during the performance of the Agreement, to perform final inspections and to reject non-conforming goods and services at any time. [96] As stated, when Husky sent out an RFQ, they identified for the cement contractor the specifications of the bid, including the number of wells, the hole size, the casing size, and even the kind of cement pumper that was needed. They also set out the blend of cement that they were looking for. For instance, in the Hog Cementing Routine Hog Well (Plaintiff Third Party Exhibit 64), Husky was requesting “thixotropic blend with some fluid loss and gas blocking agents”. Thixotropic is standard type of cement blend. Husky also asked for “thermo thixotropic blend”. So Husky was asking for two options for cement blends and Husky required bidders to quote prices on each type of cement blend. While Husky set out the blend, Husky left it up to the contractor to decide the kind and amount of fluid loss, and what kind of gas blocking agent the contractor would put into the blend. [97] The cement contractors understood that Husky was asking for price per tonne FOB location. This was standard for Husky, FOB meaning “Freight on Board”. As stated, what this really meant is that Husky wanted cost per tonne of blended cement delivered to the well head. This required the contractor to bid price for the cement that took into account the cement, the chemical additives, their blending charges and hauling charges and to combine it and roll it into one price per tonne of cement. By requiring the contractors to bid this way, Husky was able to compare prices across the board of all bidders. So, in the end, the cement contractor would supply bid for: price per tonne of cement, which included the cost of cement, the cost for blending the cement, and the cost for delivery to the site. This would be presented as price per tonne of cement. The amount of cement would vary from well to well. The contractors were also to provide their bid for service charges and charges for additional waiting time. The contractor would also provide what they might suggest was better or different cement blend that they suggested would give better results to Husky. [98] As stated, PST was set out separately and was added to the price per tonne of cement and other property being provided to Husky. [99] In some of the RFQs, Husky inserted what has been referred to as “Year 2000 Warranty”. This “Year 2000 Warranty” was included in the May 25, 1999 Request for Quotation sent to Nowsco Well Service (Exhibit D13) as well as the September 13, 1999 Request for Quotation sent to Nowsco (Plaintiff Third Party Exhibit 64) (Exhibit D13 as well as September 16, 1999 RFQ (Exhibit D21). The “Year 2000 Warranty” stated: 1.7 Year 2000 Warranty Vendor represents and warrants to Husky, and confirms Husky is relying on the accuracy of each such representation and warranty in connection with the purchase of the Goods, and any and all Goods shall by Y2K Compliant at all times during the term of this Agreement and thereafter. Goods shall be deemed to be “Y2K Compliant” if the performance, accuracy and functionality of the Goods, or any part or component of the Goods, will not be adversely affected by the use of the Goods after September 8, 1999, nor by the input into the Goods or use of any dates by the Goods which bear date which falls after September 8, 1999 .. [Emphasis added]. [100] The RFQ dated February 26, 1999 (Exhibit D11), was an RFQ issued by the Husky Lloydminster office (where the other RFQs appear to have been issued by the Husky Calgary office) to Nowsco for an abandonment program. This RFQ is different from the other RFQs. This RFQ (Exhibit D11) stated: 1. Entire Agreement This Request for Quotation, including these Terms and Conditions, any specifications and drawings attached, and any additional Terms and Conditions incorporated into and attached hereto, when accepted by the Vendor shall constitute the entire agreement between the parties (the “Agreement”). Husky Oil Ltd. (and/or its subsidiaries) shall be referred to as Husky throughout this Agreement. The Vendor’s written acceptance of this Agreement, the shipment of any goods by the Vendor or the Vendor’s commencement of performance of work hereunder shall constitute an acceptance of this Agreement. The Agreement shall not be altered, amended or modified in any way whatsoever without Husky’s written approval. Compliance Vendor warrants that all goods and services provided hereunder shall have been produced, sold, delivered and furnished in strict compliance with all applicable laws and regulations. Vendor shall execute and deliver such documents as may be required to effect compliance. 4. Warranties and Guarantees Vendor warrants it will have unfettered right to sell the goods and services at the time the title is to pass; Husky will have quiet possession of the goods and services free of any charge or encumbrance; all goods and services to be furnished hereunder conform and will conform to the specifications, drawings or other descriptions furnished by Husky and will perform as specified therein; the goods and services will be fit and sufficient for the purpose intended not withstanding [sic] that the goods and services or any of them or any part thereof are described in patent or by trade name; Vendor will, at Vendor’s expense either repair, or at Husky’s option replace, any part of the goods and services furnished under this Agreement and accepted by Husky in which defects in workmanship, materials or design are discovered within one year from the date on which such goods and services are employed by Husky and, at Husky’s option, shall repair or bear the cost of repairing any damage caused by any such defect. This warranty period shall be extended by the time during which any of the goods and services supplied were out of service by reason of defects which Vendor is required to repair or replace. Repairs shall be done at Husky’s convenience and at Husky’s option on its premises unless the repairs are of such of nature as to require repair facilities that are not or cannot be made available on Husky’s premises. Repairs shall be done expeditiously. The foregoing warranties shall apply to all repairs or replacements. All expenses attendant upon such repair or replacement including any freight, custom duties, and brokerage fees shall be for Vendor’s account. The Vendor’s obligation to repair or replace shall extend to defects which were revealed or should have been revealed on Husky’s examination prior to acceptance. 9. Termination at Option of Husky ...Upon termination by Husky under this Clause, Husky shall pay to Vendor the price of all goods and services which have been provided in accordance with this Agreement ... 10. Termination for Default of Vendor If Vendor refuses or fails to make deliveries of the goods and services specified in this Agreement ... 11. Force Majeure If, for reasons beyond its reasonable control, Husky is prevented from proceeding with the project for which the goods and services has been procured ... Forms The parties acknowledge that invoices and other documentation of the Vendor may contain various contractual terms relating to goods and services provided by the [V]endor. When the parties have executed Husky Goods Agreement or Husky Services Agreement, such Husky Goods Agreement or Husky Services Agreement shall always override and govern in the case of conflict with the terms hereof, however, where the parties have not executed Husky Goods Agreement or Husky Services Agreement, the parties agree that this Agreement shall contain the only provisions of the Agreement between the parties, notwithstanding anything else contained or implied in any such invoices or other documentation of the Vendor, and shall override any and all invoices or documentation related to the goods and services provided by the Vendor. [Emphasis added] [101] These types of RFQs (that contained the Year 2000 Warranty) did not state, as some of the other RFQs did, that the parties were required to enter into legal agreement. This RFQ said that invoices and other documentation may contain contractual terms but if Husky Goods or Services Agreement was in place, and there was conflict between terms, the Husky Agreement would govern. This paragraph also stated that where no such Husky Services Agreement was in place, then the RFQ would govern. [102] The RFQ in Exhibit D11 also included the following terms in paras. 15, 16, 20 and 22: 15. Price and Payment Unless otherwise expressly stated, the price herein specified shall include all taxes, duties, charges and services of any kind which either party is required to pay with respect to the state of the goods and services covered by this Agreement. The time for payment of invoices or for accepting any discounts offered, shall run from the date correct invoices are received by Husky. ... 16. Taxes and Duties All invoices submitted by [V]endor shall show as separate item applicable Duty and Goods and Services Tax (GST) and Sales Tax ... 20. Excess Material: Goods and services supplied in error or in excess of the amounts ordered hereunder may be returned by Husky to the Vendor and the Vendor shall pay all shipping and return freight costs and shall reimburse Husky for such items. 22. Inspection: Husky or its representatives shall have the right to inspect the goods and services provided hereunder at any time during the performance of the Agreement, to perform final inspections and to reject non-conforming goods and services at any time. [Emphasis added] [103] It appears that the Lloydminster office of Husky was using different form of agreement than what was reflected in the other RFQs in evidence. Clearly, in Exhibit D11, the request for the quotation appears to have contemplated contract for goods and services. [104] Husky sent the requests for bids (in whatever form) to the third party contractors. After receipt and review of the RFQ, or after receipt of request for bid not contained in an RFQ, the cementing contractors prepared their bid. The cementing contractors prepared bid proposal for the cementing of the well in accordance with the method and specifications demanded by Husky in the RFQ or in the request for bid. The bid proposal was prepared by the cementing contractors themselves. It was their bid document. It was structured to address the bid requirements set out by Husky in the RFQ or the request. Tab 67 of the Plaintiff’s Third Party documents was such bid document prepared by Nowsco, which was the predecessor to BJ Services. (BJ Services is the company that acquired all of the shares of Nowsco, as set out in the agreed summary of corporate histories of the third parties.) The Nowsco bid document set out the details of the surface casing cement job and the production casing cement job. These bid documents were always prepared by the contractors well in advance of the performance of cementing jobs. [105] The cement prices in the bids were set out as price per tonne. The bid identified the particular cement blend. In bidding contract, the contractor would set out the quantity of cement blend it estimated was needed to complete the work, the price per tonne (the unit price) and the total cost. [106] All of the third party contractors had price books. These were proprietary documents which contained what they referred to as their book prices. They each used their book prices to bid the contracts. The price books are published to provide customers with pricing on the different kinds of services and products that go into cementing job. This would include chemicals, cement and additives. Each of the price books contained part called terms and conditions. For example, in Plaintiff Third Party Exhibit 120, pps. 39 and 40 contained terms and conditions. The Sanjel terms and conditions included the following: TERMS CONDITIONS Sanjel Corporation (hereinafter called Sanjel) and Sanjel’s Customers expressly understand and agree that Sanjel will not be bound by any other agreement not herein contained, and no agent or representative employed directly or indirectly by Sanjel has authority to alter or amend the terms of this agreement. In consideration of the prices to be charged as set forth in Sanjel’s Published Price Schedule and the performance of services and supplying of materials, the Customer agrees to the following terms and conditions. ... Selling prices of materials and services exclude GST at the rate normally applicable. ... WARRANTIES LIMITATION OF LIABILITY Sanjel warrants only title to the product, supplies and materials and that the same are free from the defects in workmanship and materials. ... [107] According to Sanjel, once Husky has signed off on the service ticket, the service ticket refers to the terms and conditions contained in Sanjel’s price book. [108] Once Husky sent out request for quotes to the third party contractors, bid was prepared. Sanjel would then, by way of example, respond to bid with program document. An example of program document is at Plaintiff Third Party Exhibit 124. In Plaintiff Third Party Exhibit 124, Sanjel’s sales office wrote to Husky in respect of the Lloydminster area hog cementing services saying the following: Thank you for the opportunity to provide the following quotation for primary cementing services and materials for the above referenced location. Service and materials are provided on Price Book less discount basis from Sanjel’s service location at Lloydminster, AB, ... Provincial and Federal taxes, where applicable, are additional. [109] So, it was clear that in bidding the contract, the third party contractors did not include PST as part of the bid document. It was clear that the bid placed by the third party contractors was price for services and materials and that PST would be added in addition on the materials. [110] It is of note that Sanjel also does business in British Columbia. In British Columbia, during the period of time in which the British Columbia government Ministry of Finance instructed the third party contractors to self-assess, they began to self-assess tax on the cost of materials. In that self-assessment, the pricing structure of Sanjel then changed. They included an extra charge to accommodate for the increased cost of doing business in British Columbia due to the fact that they were required by the government to self-assess PST. [111] The bid included all of the goods and material to be provided to Husky and all of the services to be supplied by the contractor. This would include the quantity and unit price of plugs, cement foamer, the amount of the cement, the amount of calcium chloride and the unit price for each. The bid also included price for the handling and blending of the material; price for the travel; price for the bulk cement delivery; and set-up fee. The bid included price for surface casing and production casing, including prices for set-up, extra time on location for pumping, extra time on location for standby, the amount of tonnage of the particular cement blend, the price per tonne and the total costs. Some of the bidders provided price and the indication of the percentage off their book price. [112] Every bid in every case and every well cemented by the contractors during the period of Husky’s claim included price per tonne for the cement and additives as well as price for services. The bid proposal took into account all of the specifications set out by Husky. As stated, the product and treatment used in cementing particular well was always determined by Husky. [113] There is no dispute that Husky, as indicated earlier, requested that when the cement contractors bid the cement contracting jobs, they set out price for materials and price for services and requested that each of the materials and services were to be shown separately on the bid. The contractors did not bid cementing jobs on lump sum basis. They quoted the cementing job on the basis of quote for materials (cement and other goods) and quote for services, as required by Husky. Husky required the bid to be submitted in this manner. The reason for breaking down the materials and services was because of the variability of those materials and services on any well site. The depth of the well bore and the volume of materials needed to cement the well bore varied from well site to well site. Sometimes Husky required less materials, and sometimes more materials than it had originally requested, because the well bore was of different depth than anticipated. [114] Husky acknowledged that the reason they asked for the bids to be based on separation of materials supplied and services supplied, and the reason that they paid the cementing contractors in this way, was to save Husky costs. The evidence indicated that Husky had considered contracting on fixed price (that is price for completed well), but chose not to. Husky was concerned that fixed price contract would result in higher costs to Husky than contract that contained variable amount for the amount of goods purchased and variable price for the services rendered. It was Husky that sought to contract with the third parties in this manner. [115] Husky acknowledged that the invoices sent by the cement contractors to Husky after the completion of the transaction reflected the way in which Husky had structured the contracts. The structure of the transaction, as reflected in the bids and the invoices, was as Husky requested. The contracts were structured this way and PST paid on the materials throughout the period of time in question. In fact, PST had been charged on materials and paid by Husky without question or complaint for as long as any of the witnesses could remember. The BJ Services representative suggested that since he started with BJ Services in 1979, this was the way in which the contracts were bid, invoiced, completed and the way in which PST was charged. [116] As indicated, the contractors submitted their bids to Husky. Husky then reviewed the bids and accepted the bid of the successful contractor. [117] In some instances, after contract was awarded to contractor, Husky and the contractor would enter into further legal agreement. There were two types of agreements that Husky typically had the cementing contractors enter into: one was purchase order and the other was Services Agreement. purchase order would be used if there was no Services Agreement in place. It appears that if contract was awarded to contractor for small number of wells, purchase orders for each well might be used. However, Husky indicated that when they were drilling 150 or 300 wells, Husky would not want to do 300 individual purchase orders. Rather, Husky would prepare an overriding Services Agreement. However, the evidence, in this case, did not establish that for every well or series of wells there was Services Agreement or purchase order. [118] In some cases, Husky had standard form contracts with some contractors. Such documents entered into evidence were titled Services Agreements. The parties referred to them as “Master Services Agreements”. Husky drafted the Master Services Agreements (also referred to as “MSA”)for use with variety of contractors. So, in some circumstances, after Husky awarded contract to contractor, the next document that Husky prepared was an MSA. Some of these MSAs were signed for specific period of time, while others were signed with no end date on the contract. Husky referred to the MSAs signed without an end date as “Evergreen contracts”. Those Evergreen contracts continued in force without specified end date. However, over time, Husky moved to change Evergreen contracts to annual contracts. In yet other instances, there was no MSA in place. [119] The purposes of Master Services Agreement, according to Husky, was to set out the terms of the contract for the cementing contract. The successful bid from cementing contractor became “Schedule A” to the Master Services Agreement. The Request for Quotation, in whatever form had been used and the contractor’s submission/bid, became Schedule “A” or Addendum “A” to the Master Services Agreement. However, in Husky’s view, the cementing contractors contracted with Husky on the same basis, whether or not Master Services Agreement was signed between the parties. [120] Plaintiff Third Party Exhibit is Master Services Agreement between BJ Services and Husky. This Master Services Agreement HDC96-98 was for an indefinite term commencing January 1, 1996. Paragraph of the Master Services Agreement stated that Husky retained contractor for the purposes of performing such work and services which were set forth in Schedule A. As stated, the Request for Quotation and the successful bid from the cementing contractor was attached as Schedule A. [121] Paragraph of the Master Services Agreement HDC96-98 stated: 4. Supply of Personnel, Material etc.; The Contractor shall, at is sole risk, cost and expense, supply all personnel, labour, services, materials, supplies, tools, equipment, machinery and all other things to be used, directly or indirectly, in the performance of or in connection with the Services, other than such items thereof as Corporation specifically agrees to furnish and the Contractor agrees to hold Corporation harmless from and indemnify the Corporation against all claims, liens and demands in connection therewith.[Emphasis added] 5. Billing: Contractor shall invoice Corporation at the end of each calendar month setting out detailed monthly summary of the Services provided for the month just ended and such other supporting documentation as Corporation may reasonably request including, without limiting the foregoing, copies of daily service tickets and receiving reports. Corporation shall pay all invoices within thirty (30) days after receipt thereof from Contractor, provided however that, if Corporation disputes any invoice of contractor, Corporation shall, within twenty (20) days after receipt of such invoice notify Contractor of the item in dispute, specifying the reason therefor. Payment of disputed amounts shall be withheld until settlement of such dispute. 7. Performance of Services: Contractor shall perform the Services expeditiously and in careful, diligent and workmanlike manner to Corporation’s reasonable satisfaction and in accordance with the terms of this Agreement, prudent industry practices and procedures and all applicable laws and regulations prescribed by any governmental or administrative body having jurisdiction over the provision of the Services hereunder. 8. Warranty: Contractor warrants the provision of goods and services provided hereunder for period of three (3) months after acceptance thereof by the Corporation and Contractor shall correct, at its own cost, risk and expense, any defect of goods and materials which may become evidence during the said warranty period. This provision is in addition to, and not in substitution for, any other right or remedy which the Corporation may have at law or equity or under this Agreement. [Emphasis added] 15. Liability: ... (b) Where this Agreement is used in conjunction with drilling, well servicing or completions the following terms shall be applicable: (i) Contractor will not be liable for: (A) damage or loss of any well; (B) damage to or loss of any reservoir or production formation; (C) any other subsurface damage or loss, including surface damage arising from subsurface damage; or (D) any property damage or loss of oil or gas due to blowout or fire therefrom or other loss of control of the hole, any of which results from any of Contractor’s operations while performing Services hereunder unless such damage or loss is due to the negligence of willful act or omission of Contractor, its employees, agents or servants. (ii) If Contractor’s downhole equipment is lost or damaged while in the hole for reasons other than the negligence or willful act or omission of Contractor, then Contractor shall invoice Corporation for the value of such downhole equipment at the depreciated book value of such downhole equipment or the repair cost, whichever is less. (c) For the purposes of this clause “negligence” or “willful acts or omissions” of either party shall not include any act or omission done or omitted in accordance with the express written direction of the other party. 21. Entire Agreement: (a) The terms of this Agreement represent the entire understanding and agreement between the Contractor and the Corporation regarding the performance of the Services and no other terms or conditions shall apply. Except as provided in clause one (1), no amendment of the terms of this Agreement shall be binding upon party unless it is evidenced in writing and executed by both parties. (b) Both Corporation and Contractor may continue to execute usual field work orders, service contracts, purchase orders and/or tickets customarily required by Corporation or Contractor in connection with the request for or the performance of Services hereunder, with the understanding on the part of both parties that irrespective of the terms of such field work orders, service contracts, purchase orders and/or tickets, the terms and conditions of this Agreement shall apply in determining the rights and liabilities of the parties. [Emphasis added] [122] Schedule “A” to the Master Services Agreement HDC96-98 stated: SCHEDULE “A” THE SERVICES ATTACHED TO AND MADE PART OF SERVICES AGREEMENT NUMBER HDC 96-68 BETWEEN HUSKY OIL OPERATIONS LTD. AND NOWSCO WELL SERVICE LTD. DATED THE 1ST DAY OF JANUARY, 1996. LOCATION: DESCRIPTION OF THE SERVICES TO BE PROVIDED: BASIS OF PRICING: [123] While Husky identified that Schedule “A” was the place where the requests for quotations and the bids were to be attached, no such bid was attached to Plaintiff Third Party Exhibit 1. The evidence indicated that often the requests for quotations and successful bids were not formally attached to the Master Services Agreement, despite the fact they formed part of the agreement. [124] The evidence indicated that there were two Master Services Agreements in place between Trican and Husky for portions of the claim period. One Master Services Agreement was in place from January 1, 1998 for one year term for specific group of wells. This was MSA HDC 97-23 (Plaintiff Third Party Exhibit 2). second was in place commencing May 15, 2000, which was terminated by Husky on April 27, 2001(Services Agreement 4600000405) (Plaintiff Third Party Exhibit 13). The evidence established that Trican was involved in well transactions with Husky prior to January 1, 1998 because Trican was rendering invoices to Husky prior to January 1, 1998. In fact, in 1996 there was 121 invoices rendered from Trican to Husky and in 1997 there were four invoices rendered. After the expiration of the 1998 MSA, there was no new Master Services Agreement entered into between Trican and Husky until May 15, 2000. That agreement had no end date. However, again, the scope of that agreement was restricted to Lloydminster completion work, such that it would not have included primary cementing. In the period of January, 1999 to May 15, 2000 (when there was no MSA), there were 113 invoices rendered from Trican to Husky. After May 15, 2000, when the new Master Services Agreement was in place, there were only four transactions. So, in the period between 1996 and 2001, there were total of 369 transactions between Husky and Trican. However, only 131 of those transactions were covered by Master Services Agreement. So clearly in relation to those other transactions, the Master Services Agreement was not the overriding contract between the parties, because, in fact, there was no MSA. [125] Husky’s evidence with respect to Sanjel is similar. There was also Master Services Agreement in place between Sanjel and Husky for an indefinite period of time beginning May 15, 2000 (MSA 4600000404) (Plaintiff Third Party Exhibit 10). Husky identified that this was the single agreement with Sanjel. This Master Services Agreement was limited to completions work in the Lloydminster area. Unfortunately, Husky did not identify which specific invoices from Sanjel related to completions work versus the primary cementing work such that am unable to determine how many of the invoices from Sanjel were covered by this Master Services Agreement. [126] In relation to Nowsco, there was one Master Services Agreement in place between Nowsco (predecessor to BJ Services) which had no termination date (HDC 96-96) (Plaintiff Third Party Exhibit 15). [127] Both the MSA with Sanjel, MSA4600000405 (Plaintiff Third Party Exhibit 13), and the MSA with Nowsco, MSA 4600000404 (Plaintiff Third Party Exhibit 10), said the following: 1. Services: CORPORATION hereby retains CONTRACTOR for the purposes of performing such work and services, (the “Services”) which services: (a) are set forth in your rate schedule and quotation (b) may be specified by CORPORATION pursuant to the written instructions given by CORPORATION to the CONTRACTOR from time to time during the term of this Agreement. Written instructions from CORPORATION shall be given to CONTRACTOR in the form of revised rate schedule, or in the form of CORPORATION’S Standard Agreement Order. Each time that rate schedule is revised it shall show the effective date. 2. Term: This Agreement shall continue in force and effect until terminated by either party by the giving of at least fifteen (15) days notice in writing to the other party. 3. Rates: CORPORATION shall pay CONTRACTOR the amounts set forth in the attached rate schedule or, if no such rate schedule is attached, the amounts shown in Schedule “A”, attached hereto. No change in the rates shall be effective until thirty (30) days after CORPORATION shall have received and approved in writing, copy of the amended rate schedule from CONTRACTOR. [Emphasis added] 4. Supply of Personnel, Material, etc.: The CONTRACTOR shall, at its sole risk, cost and expense, supply all personnel, labour, services, materials, supplies, tools, equipment, machinery and all other things to be used, directly or indirectly, in the performance of or in connection with the Services, other than such items thereof as CORPORATION specifically agrees to furnish and the CONTRACTOR agrees to hold CORPORATION harmless from and indemnify the CORPORATION against all claims, liens and demands in connection therewith. [Emphasis added] 5. Billing: CONTRACTOR shall invoice CORPORATION at the end of each calendar month setting out detailed monthly summary of the Services provided for the month just ended and such other supporting documentation as CORPORATION may reasonably request including, without limiting the foregoing, copies of daily service tickets and receiving reports. CORPORATION shall pay all invoices within thirty (30) days after receipt thereof from CONTRACTOR; provided however that, if CORPORATION disputes any invoice of CONTRACTOR, CORPORATION shall, within twenty (20) days after receipt of such invoice notify CONTRACTOR of the item in dispute, specifying the reason therefor. Payment of disputed amounts shall be withheld until settlement of such dispute. 8. Warranty: CONTRACTOR warrants the provision of goods and services provided hereunder for period of three (3) months after acceptance thereof by the CORPORATION and CONTRACTOR shall correct, at its own cost, risk and expense, any defect of goods and materials which may become evidence during the said warranty period. This provision is in addition to, and not in substitution for, any other right or remedy which the CORPORATION may have at law or equity or under this Agreement. [Emphasis added] 20. Entire Agreement: (a) The terms of this Agreement represent the entire understanding and agreement between the CONTRACTOR and the CORPORATION regarding the performance of the Services and no other terms or conditions shall apply. Except as provided in clause one (1), no amendment of the terms of this Agreement shall be binding upon party unless it is evidenced in writing and executed by both parties. (b) Both CORPORATION and CONTRACTOR may continue to execute usual field work orders, service contracts, purchase orders, service contracts, purchase orders and/or tickets customarily required by CORPORATION or CONTRACTOR in connection with the request for or the performance of Services hereunder, with the understanding on the part of both parties that irrespective of the terms of such field work orders, service contracts, purchase orders and/or tickets, the terms and conditions of this Agreement shall apply in determining the rights and liabilities of the parties. (c) The headings of the clauses herein and in the Schedules are inserted for convenience of reference only and shall not affect their construction or interpretation. [128] All of the MSAs between Husky and the third parties that were in evidence contained terms similar to those referred to herein. [129] It is clear that for each well transaction that was undertaken between Husky and the third parties, there was series of documents that reflected the transaction. However, Husky has failed to tender into evidence all of the documents relating to each transaction or to identify which documents related to each transaction. [130] Husky chose to introduce into evidence what it called representative documents rather than proving the particular documents or agreements that related to each contract Husky had with each third party. The difficulty with this is that it is difficult to trace through the documents relating to each well transaction. There was no explanation as to why the documents with respect to each transaction were not entered into evidence. [131] Husky is sophisticated party with detailed record keeping yet it offered no explanation for the deficiency in its evidence. [132] It must be remembered that Husky bears the onus of proof. It is clear that in some cases, the documents entered as representative documents were not representative of the transactions, as the same agreements or form of agreement was not used for every transaction. [133] Turning first to the Request for Quotations. Husky has not tendered all of the request for bids nor the RFQs into evidence. Nor has Husky identified when purchase orders were used instead of RFQs. Likewise, while Husky takes the position that Master Services Agreements governed all of the contracts that it had with the third parties, it has failed to identify for each of the transactions the specific Master Services Agreements that may or may not have been in place. [134] Master Services Agreements which were entered into evidence without the attached Appendix A, which was where the bid from the third party contractor would normally be placed, are of limited assistance to the court. There were invoices entered into evidence for which certain Master Services Agreements related to. The plaintiff has not established that there was Master Service Agreement in place for all the transactions with the third parties during the period of the claim. [135] It is clear from the MSAs in evidence that these MSAs were not agreements that stipulated that the parties were required to contract with each other. As stated, the parties contracted and worked with each other and the third party contractors provided services and materials to Husky even in the absence of an executed MSA. [136] In all situations, after Husky awarded the contract to third party contractor, Husky prepared the drilling program. This drilling program outlined the detailed procedure for drilling the well. The detailed drilling program would set out the location and the particular wells to be drilled, the special drilling instructions, the drilling order and any special considerations. It also gave instructions for the surface casing, production casing, and the steps to be undertaken for the drilling of the well. drill plan summary was also included. Attached to the drilling program would be the cementing contractor’s cementing program, which contained the detailed procedures and reporting requirements required for the well construction project. The detailed drilling program included the number of tonnes of surface cement needed and the price for the cement FOB to the well site. The document often set out that the quantities for the cement were estimated and subject to change, depending on actual amounts used. It also reflected that PST was to be charged as an addition to the cost where applicable. Plaintiff Third Party Exhibits 18 and 19 are examples of the detailed drilling program with the Trican and Nowsco (BJ Services) cementing procedures. [137] While wells were being drilled, Husky employed well site supervisor who remained on the location of the well. The site supervisor was not an employee of Husky, but rather contractor or contract employee of Husky. The site supervisor reported to the drilling superintendent, who was Husky employee, located in Calgary, Alberta. Other employees in the Husky office who were involved in the well drilling were drilling engineers and drilling technicians who reported to the engineering technical leader. The drilling superintendent reported to the drilling manager. This team employed several contractors of various kinds, all of whom were contracted prior to the beginning of the well being drilled. [138] will now describe the drilling process for these wells. The actual drilling process was the same for every well. Once well was to be drilled, the drilling contractor moved its equipment onto the particular well location. The drilling contractor had hoisting equipment, mud tanks, mud pumps and all the equipment necessary to drill the well. The drilling contractor used particular bit to drill the hole into the ground. Such bit is round and has hole in the center of it. The drill bit was lowered from the work platform (the floor of the drilling well), and it penetrated the ground to drill the well bore. Drilling fluid, which was mixture of water and bentonite, was pumped down the center of the drill pipe, through the bit. It pumped the dirt and rock that was drilled (which was referred to as the cuttings), up through the outside of the drill pipe and back up to the surface. This process of drilling down by joints of drill pipe took from 12 to 14 hours. Once the depth of 100 metres was reached, the bit was pulled up and then casings (steel straw) were screwed together and run down into the bottom of the well. Once the casings were in the well, drilling fluids were circulated down through the inside of the casing, around the outside of the casing, and all of the dirt and rock (cuttings) were removed from the well bore. The bore was then ready for cementing. [139] Blow out preventers were attached to the top of the casing bowl, which controlled the unwarranted flow of fluids from the well bore and also provided conduit for the drilling fluids. smaller sized bit was then attached to drill pipe which ran down the center of the surface casing and was used to drill all the way to the total depth of the well, which was around 600 metres. [140] The term “drilling fluid” and “mud” are used interchangeably. Drilling fluids were used to remove the cuttings. Cuttings were the rock and the dirt, which are drilled up by the drilling bit from the well bore. Drilling fluids were used to lubricate the bit and to provide primary well control. Primary well control means that the density of the drilling fluids was greater than the formation pressure, so that oil and gas in the formation cannot flow into the well bore while the well was being drilled. [141] The drilling fluid, or drilling mud and all those products, were supplied by drilling fluid contractors. During this process, the surface casing went down to about 100 metres. [142] It is of note that these drilling contractors worked on day work contract. For every day that they worked, they were paid for that particular day of service. That day work contract included all personnel to operate the drilling pipe, the pumps and the mixing equipment, including the mud pump to pump the mud or the drilling fluids. Husky chose to contract with drilling contractors on per day contract basis. Husky chose different way of contracting with the drilling contractors as compared to the cementing contractors. [143] Once the well was drilled, the well site was ready for cementing. The cementing contractor would be contacted by Husky six to twelve hours before the cement was required. Husky would specify to the cementing contractor the volume of dry cement blend needed for the job. The volume of cement was determined by the caliper measurement of the well bore. [144] The cementing contractor would then blend the dry cement. The dry cement was blended with the specific additives according to the bid contract. The contractor would create dry volume of the cement mixture. [145] The contractors did not manufacture the cement powder. They purchased the cement powder from suppliers. But the contractors did develop specific chemical additives that they blended with the dry powder to meet the specifications of the program as requested by Husky. The additives included number of things, depending on the particular characteristics needed at the well. The particular cement blends, that is cement powder and additives, were the object of research and development by individual cement contractors. The formulas for the blend of cement and additives were the contractor’s proprietary property. These proprietary properties addressed issues like gas migration, loss circulation, thickening time, etc. Cementing contractors had research and development departments that created these cement blends. [146] After the call from Husky identifying that cementing of the well would begin in six to twelve hours, the contractor then took the dry bulk cement blend to the well site. At the well site, the cement contractor connected its pumping unit, which mixed the dry cement blend with water to form what is known as slurry. The slurry was then pumped down the well. [147] At the well site, the truck with the dry blended cement or the container with the dry blended cement was situated near the well head. Close to the cement truck was the water tank or water truck. The water was supplied by Husky. The water truck was connected to the pump truck. [148] The cement contractor pre-flushed the well bore with water or mud. After the water or mud went down the well bore, the cement contractor used chemical spacer for cleaning. That spacer was supplied by the cement contractor. Following the chemical spacer was rubber wiper plug which separated the chemical spacer from the cement slurry. [149] The cement contractor, after putting in the wiper plug, took bulk cement from the bulk truck and pneumatically blew it into the cement pumper. Once the cement contractor began creating the slurry, it was imperative not to stop, as the cement started to develop quickly. In addition, there could be well bore problems if the contractor stopped pumping the slurry. As long as the fluid was moving down and up the well bore, the well bore was usually stable. So, at this point, the slurry was continuously mixed and pumped, going down the inside of the casing, coming out the bottom of the casing, and going up the casing well bore annulus. The contractor pumped the prescribed amount of volume and followed with another wiper plug behind the cement. At that point, the contractor began pumping drilling mud or another fluid to displace the plug and slurry to the bottom of the casing string. [150] It is important to note that once the dry cement blend was mixed with the additives in accordance with the request by Husky, the dry cement blend with additives was not able to be sold to another customer. So, even if all of the dry cement blend was not used for the drilling program, Husky would be billed and paid for the full amount ordered. [151] It was Husky who assumed the risk associated with the well site and the well bore. The well site supervisor for Husky had the ultimate decision making power on the well site. The cement contractors were hired to do the cementing job, but ultimately it was the well site supervisor, Husky, who had the final decision on all issues, including the cementing of the well. [152] As explained, the cement slurry was blended by the contractors. The contractors devised mixture of dry powder cement, additives and water. The amount, and the composition of the cement additives and water varied from job to job. The blending of the dry cement and additives usually took place at the contractor’s bulk plant. The cement, as blended, was transported from the contractor’s facility to Husky’s well site and mixed with water at the site. Husky supplied the water. This created slurry and it is the slurry that was pumped into the well by the third party contractor. [153] These cement slurries used by the cementing contractors had three basic components: cement, additives and water. Slurries are different by their design and their application, but primarily by their additives. The additives control how fast the cement sets up and how much viscosity the cement has. Viscosity refers to how thick the cement is when it is piped and how much free water is in the cement. The cement type used also controls gas migrations or has special additives for special problems in any well bore. [154] There were several different types of slurry for well bore in the Lloydminster area. While the cementing contractors made suggestions, ultimately it was Husky who made the final decision as to the slurry. The cementing contractors were the persons knowledgeable with respect to the cement. They made recommendations as to the types of cement used on each individual project. But it was Husky who made the ultimate decision on the type of cement used. [155] The cementing contractor (the third party contractors here) provided all of the equipment for the cementing of the well. This included cement mixer, cement pumper, bulk truck, storage bins, data vans and pickup trucks. The cement contractors also provided all cement and additives necessary for the job, with the exception of water. The cementing contractor delivered bulk cement to the location, either by bulk truck or by cementing bin, both of which were owned by the third party cementing contractor. As well, the third party contractors also used mixing and pumping unit, also owned by the cementing contractors. The mixing and pumping unit mixed and pumped the cement down the hole, through the casing, and into the well bore. [156] During the cementing process, the cement was connected to the casing by what is known as treating iron. The cementing contractors connected the mixing unit and the pumping unit by this treating iron. The treating iron was made of steel and it was supplied by the cementing contractor. The only item that Husky supplied during the cementing process was the water. [157] So, the process for cementing Husky’s well involved the following: the Husky well site supervisor called and gave the cementing contractor notice of the job; at that point, the third party contractors coordinated delivery of the cement and the cement crews to the location in time for the work; all testing of the equipment and the cement was done by the cementing contractors; the cementing contractor attended to the well site two to three hours before the cementing began; the third party contractors brought the dry cement to the well site, along with its cementing crew; the general cementing crew would include minimum of three individuals: the driver, who coordinated the delivery of the cement; second person the cement mixer, who operated the cementing truck; and the third person was the supervisor, who supervised the job. [158] The well site supervisor, who was Husky employee, was on site when the cement contractor and his crew attended. When the contractor arrived, the contractor and the well site supervisor discussed the technical details of the job. They reviewed the volume of the slurry to be mixed, the rate at which the slurry was to be mixed, and the pressure and the rate at which the slurry was to be pumped. [159] This was the way in which all the wells were cemented and have been cemented for numerous decades. The cementing contractor prepared his equipment for the cementing. The cementing contractor took water onto his truck and the water was pumped up to the rig floor to complete pressure test. When the pressure test was completed, the valve cementing head was opened and the cement began to be mixed by the cementing contractor. The cement was mixed in tub and was transferred to high pressure pump on the cementing contractor’s equipment. It was pumped down through hole, through the inside of the casing, down to the bottom of the well, out through the bottom of the casing. The cement travelled up through the outside of the well bore back to the surface. The cement was mixed in continuous process and as it was being mixed, it was pumped down the hole. The cement did not get mixed with water if it was not going to be pumped. It was Husky that decided how much cement was brought to the well site. It was very important that sufficient cement was mixed and pumped by the contractors. [160] Once the slurry had been pumped, the slurry that came up on the outside of the metal casing was excess cement. This slurry took between four to six hours to harden. The metal casing was held stationary while the cement set. The metal casing was left on top of the well until the cement set. After the surface casing set, the cementing contractor was released from the location. At that point, welder was brought onto the location and he cut the surface casing off at ground level and welded it onto the casing bowl. At the top of the casing bowl, blow out preventers were attached and the drilling process continued. The casing bowl formed the foundation for the well head for the remainder of the life of the well. [161] Once the well was drilled down to its full depth, the drill pipe was recovered to the surface. At that point, another contractor was brought on to run wire line logs. These wire line logs record rock properties, the bottom hole temperatures, the purosity, and the volume of oil and gas that are in the rock. The purpose of that was to identify the conditions in the area where Husky hoped to produce oil and gas. At that point, the hole was still called an open hole. Only the surface casing had been installed. From the wire line logs, two critical pieces of information were obtained for further cementing work. They were the bottom hole temperature and the volume the hole that had been drilled. [162] At this point, the production casing was placed in by the production contractor. Each joint of production casing was typically 12 metres long. Each production casing joint had threads on the ends and those threads were connected and screwed in place and then lowered into the well bore by the drilling contractor. This casing was supplied from Husky. The production casing was lowered into the well bore inside the surface casing. The production casing was smaller in diameter than the surface casing. It was typically seven inch outside diameter, whereas the surface casing was typically nine inch casing. The production casing ran all the way from the surface down to the bottom of the well. [163] The production casing was then cemented. The process for cementing the production casing involved the same cementing contractor that performed the surface casing. When Husky contracted with the cementing contractor to cement well, the contract included both cementing for the surface casing and cementing for the production casing. The cement used for cementing the production casing was similar to the cement used for the surface casing, with some variation in additives. Again, the cementing contractor recommended blend of cement for production cementing but it was Husky’s decision as to the actual blend of additives for the cement. [164] While Husky had the ultimate authority over the cementing process, Husky did not handle the cement at the well site. [165] At the well site, the third party cementing contractors prepared field service ticket or cementing services orders. Examples of such documents were Plaintiff Third Party Exhibit and Plaintiff Third Party Exhibit 121. The field service ticket was prepared by the third party cementing contractor at the site. The field service ticket recorded the “material and equipment used” on the cementing job. The service ticket included the type and amount of cement used in the project, the price of the cement per tonne, the travel charges, the service charges, the cementing additives and chemicals and the pricing for each of those. PST was recorded as separate charge on the field service ticket. [166] As stated, the service ticket was prepared at the well site. The service ticket was produced to the Husky representative at the well site and the Husky representative signed the ticket. The document stated that the signature of the Husky representative indicated that Husky accepted all the terms and conditions of the project and that Husky acknowledged that the work was done as recorded and the goods were supplied as recorded. It was document which documented the events of the completed job. [167] On the reverse of the service ticket was what was called “stimulation and remedial cementing service report”. This was document which documented the events of the cementing. It was record of what was done by the third party contractor at the well site. The size of the well bore, the volume of chemicals, when the equipment arrived, and when the job was finished were all recorded on this document. The service tickets for the period of 1994 to 1998 contained the following acknowledgement which stated the following: CONTRACT CONDITIONS (This order must be signed before work is commenced). To Sanjel Cementers Ltd. The undersigned, as customer, has read the instructions set forth above and agrees that they are correct in all respects. The above job shall be under the general supervision and control of the owner, operator, or his agent, whose signature appears below; however, it is expressly understood and agreed that Sanjel Cementers Ltd., will perform the work as an independent contractor and not as employees of the owner, operator, or his agent. It is understood and agreed that because of uncertain and/or unknown conditions existing in all wells, Sanjel Cementers Ltd., does not guarantee the results of the work performed under this agreement. Customer agrees that should any of the Sanjel Cementers Ltd., equipment be lost or destroyed, customer will use all reasonable efforts to recover the said equipment or reimburse Sanjel Cementers Ltd., for the reasonable value thereof. It is expressly understood and agreed that Sanjel Cementers Ltd., will not be bound by any other agreement not herein contained, and no agent or representative employed directly or indirectly by Sanjel Cementers Ltd., has authority to alter or amend the terms of this agreement. have read, understood and accept the foregoing conditions and represent that am authorized to sign this order as the agent of the owner or contractor. (Plaintiff Third Party Exhibit 17) [168] In 2000, the following was contained on the service ticket of Sanjel signed by Husky: Warranties Limitation of Liability Sanjel warrants only title to the product, supplies and materials and that the same are free from defects in workmanship and materials. THERE ARE NO WARRANTIES EXPRESSED OR IMPLIED OF MERCHANTABILITY, FITNESS OR OTHERWISE WHICH EXTENDS BEYOND THOSE RATED HEREIN. Our liability and the Customer’s exclusive remedy in any cause of action (whether in contract, tort, breach of warranty or otherwise) arising out of the sales or use of any products, supplies or materials is limited to the cost of such products or services with no punitive or consequential damages. Failure to enforce any or all of the above terms and conditions in particular shall not constitute waiver thereof or preclude subsequent enforcement. It is expressly understood and agreed that Sanjel will not be bound by any other agreement not herein contained, and no agent or representative employed directly or indirectly by Sanjel has authority to alter or amend the terms of this agreement. [emphasis in original] (Plaintiff Third Party Exhibit 117) [169] The third party field service ticket was then sent by the third party contractor to the third party contractor’s head office for use in producing the final invoice for Husky. As stated, the field service ticket contained the amount of “materials used” on the job, such as the tonnage of cement, additives and other materials. [170] This service ticket or service order was then used by the contractor to generate an invoice from the cementing contractor to Husky. The accounting department of the cementing company took the service ticket order and the quote and then prepared an invoice for Husky. The invoices provided by the cementing contractors included breakdown of the amount charged for cement, calcium chloride and separate amount for services. The invoice set out the volume of cement and additives that was used for the job and it identified price per tonne for the cement blends. On the invoice, PST on the materials was charged. No PST was charged, collected or remitted in respect of any of the services performed. It is clear from the invoices that PST was only charged on the materials provided. [171] The methodology of these contractor invoices was not affected by any Master Services Agreement. That is the invoices were the same whether Master Services Agreement was in place or not. There was no dispute that Husky has paid the PST to the contractors’ invoices without dispute. They paid the invoices and PST without questioning the applicability of the PST until they wrote to the Saskatchewan Government in 1999. [172] It is important to note that the invoice did not reflect charge for the amount of slurry pumped. Rather, the invoices billed Husky for the amount of dry cement and additives used by the contractors to create the slurry. The PST was charged on the cement and additives used by the contractors. PST was not charged on the set up charges. According to the cement contractors, the PST was charged on the dry cement blend and additives on the basis that those materials had been sold to Husky. [173] The third party contractor then prepared an invoice for Husky. The invoice was sent to Husky by the third party contractor. The invoice broke down the charges for the services and the materials used to cement the well. The PST was added separately on the materials used in cementing the well and charged to Husky. [174] While not all documents have been entered with respect to each transaction in the claim period, the evidence is consistent throughout the period of time covered by Husky’s claim that the request for quotation, as well as the bid submitted by the third party contractors, the service ticket prepared by the third party contractors, and the invoice of the third party contractors, all had breakdown of services and materials. As well, all of the documents added PST to the materials used in the cementing. So the single service charge for cementing, plus the cement at price per tonne, the additives at price per tonne, as well as other materials used at price per unit, was included on all documents, including the invoices, and PST was added to those materials charged. [175] Throughout the term covered by this lawsuit all of the third party contractors collected PST on all the materials it supplied to Husky. The third party contractors remitted that PST to the Saskatchewan Government. Throughout the period of time, the third party contractors always invoiced and charged PST and Husky paid the PST to the third party contractors, who submitted it to Saskatchewan Finance. [176] The evidence is clear that this is the way that the contracts were constructed. The parties conducted themselves this way throughout the entire period of the lawsuit. During that period, the PST was always paid by Husky without complaint and no issues were ever raised. Throughout the period of this claim, Husky paid the PST to the third party contractors and all of the third party contractors remitted that PST to the Saskatchewan Government. [177] In and around 1999, Husky retained the services of tax consulting firm known as SPIN Tax. Up until Husky’s introduction to SPIN Tax, Husky had never raised the issue of the charging of the PST on well cementing contracts. At the same time that SPIN Tax was consulting with Husky, SPIN Tax was also involved with the CAPP Indirect Tax Sub-Committee. SPIN Tax communicated on behalf of CAPP with the Saskatchewan Government directly for period of time with respect to this tax issue. Husky had authorized SPIN Tax to deal directly with Saskatchewan Government on the issue. Husky had never questioned the practice of how they had been invoiced for the PST up until that time. [178] At some point, Husky determined it was going to seek refund of the PST it had paid on the well cementing transactions. On October 27, 1999, Husky wrote to Saskatchewan Finance, Revenue Division, seeking refund of PST: We hereby apply under section 56 of the Revenue and Financial Services Act for refund of tax we paid in error under the Education and Health Tax Act on materials used or consumed by contractors. Reference materials that support our position that refund is due, include the following: Section of the Education and Health Tax Act Section of the Education and Health Tax Regulations Saskatchewan Information Bulletin No. EH-13 Choiceland Dehydrating Ltd. v. Minister of Finance for Saskatchewan, QBS September 19, 1975 No. 3973 Cairns Construction Limited v. The Government of Saskatchewan, Supreme Court of Canada, (1961) 35 W.W.R 251– (SCA) [sic] 950613 As you may be aware, whenever an oil gas well is drilled the hole is lined with pipe or casing from the start of drilling to the end. During the drilling and completion process, the drilling contractor runs several strings of casing into the hole. Each casing string fits inside the last, so each string is smaller in diameter than the one set before it. The first string is the “conduction casing” which keeps the top part of the hole from caving in during drilling. The second string is the “surface casing” which prevents drilling mud and hydrocarbons from contaminating the ground water used for drinking and irrigation. The next string is the “intermediate casing” which allows high pressure drilling to take place at much deeper formations. The final string is the “production casing” which runs to the bottom of the hole to begin the completion process. specialized cementing contractor cements each string of casing in the hole, utilizing special high-pressure pumps to inject the cement into the hole. The cement and related additives injected by the cementing contractor are specifically designed to suit the conditions presented by the environment surrounding the particular hole. Cementing the casing in the hole serves to seal the hole and make the casing solid immovable part of the real property. In the Saskatchewan Information Bulletin No. EH-13, contractor providing reservoir stimulation and cementing services must collect the tax from its customers on the selling price of all materials used, including fracturing sand or similar propping agents, acidizing chemicals, liquefied gases and concrete. This appears to be inconsistent with legal requirements for the payment of tax under the Education and Health Tax Act. In the Saskatchewan Information Bulleting No. EH-13 it states: The tax does not apply to the charges for services, such as seismic surveys, drilling, coring, logging and performing. However, the tax must be paid by the contractor on the cost of any materials used in providing these services, including drill bits, casing, tubing, drilling fluids, welding rods, explosives, sealants, lubricants and solvents. The drilling contractor supplying and installing the casing must pay tax on the cost of the material. This is consistent with section of the Education and Health Tax Act. The drilling contractor who installs tangible personal property on, or incorporates it into, real property for others is considered to the user or consumer of the tangible personal property. The cementing service done by cementing contractor must be treated the same way under the Education and Health Tax Act. The contractor who installs tangible personal property on, or incorporates it into, real property for others is considered to the user or consumer of the tangible personal property under section of the Education and Health Tax Act and section of the Education and Health Tax Regulations. Section of the Education and Health Tax Act does not impose tax on the contractor’s customer where the materials were installed by the contractor into real property. Therefore, the tax paid by the customers of these contractors on the selling price of all materials used by the contractors in providing reservoir stimulation and cementing services has been paid in error. Further support for this can be found in the above mentioned cases, “Choiceland ...” and “Cairns ...”. The courts held the contractor was the consumer and user of the tangible personal property since the tangible personal property lost its identify when it was incorporated into the real property by the contractor. Please find enclosed the schedules outlining the tax we paid in error on materials used or consumed by contractors providing reservoir stimulation and cementing services. The amount of this refund application for the overpayment of tax under the Education and Health Tax Act is $240,199.02. We also wish to inform you that Michael McCourt of SPIN Tax Solutions has been authorized by us to discuss, review and correspond with the Saskatchewan Finance Revenue Division and he will be making representations on our behalf on this issue. [179] Barbara Fraser, Supervisor of the Saskatoon Audit Office of Saskatchewan Finance, responded to Husky November 29, 1999 and rejected the request for the refund. Saskatchewan Finance wrote: Thank you for your recent submission requesting refund of Education and Health Tax paid to various firms. In your letter you outline that you believe this tax should be refunded as it was invoiced by contractor incorporating tangible personal property into real property and as he was the consumer of these goods, tax should not have been shown on the invoice. Saskatchewan Finance has had long-standing arrangement allowing the oil industry to bill in this manner. The oil producers wanted firms (including fracturing and cementing firms) working for them to provide details of all charges on their invoices. We allowed this billing procedure, as we were advised materials were always billed at or near cost. The result of this method of billing allows firms, such as yours, to be aware of all charges that are included in the price of the job. You do not pay any additional PST by this method of billing, you have merely been shown the tax paid on items such as cement or fracturing chemicals. For these reasons, we must deny your refund request. Our auditor, Chuck Toy, will be contacting you shortly for finalize his audit of your firm. [180] During the period of time that Husky was corresponding with Saskatchewan Finance seeking refund of the PST it had paid, there were discussions between the Saskatchewan Government and CAPP and PSAC with respect to the provincial sales tax legislation. [181] In the 2000 provincial budget, the Saskatchewan Government announced substantial reductions to personal income tax in Saskatchewan. In order to support the reductions in income tax, the Government looked to other sources of revenue, including the PST. The Government expanded the base of the PST legislation to include certain goods that had not previously been subject to tax, and added range of services that had never been previously subject to tax. Because this was budgetary announcement in the provincial budget, there was no prior consultation with the public or affected parties. When the changes were announced, the Saskatchewan Government’s revenue division was responsible for contacting the new taxpayers who had been added to the tax roll. It was this division’s role to explain to those taxpayers who were now subject to tax their obligation and to discuss with those taxpayers the ways of implementing the tax. [182] Saskatchewan Finance had to implement the tax base expansion in short period of time. Some of these tax changes impacted CAPP and PSAC members and so those organizations were contacted and asked for input on how Saskatchewan Finance should administer these expansions and new taxes as they applied to their businesses. In 2000 and 2001, CAPP and PSAC were having these discussions with Saskatchewan Finance. [183] As result of the expansion of the tax, revisions were made to Saskatchewan’s PST interpretation bulletins. Interpretation bulletins were prepared as guidelines to assist businesses who work at the particular kinds of business covered by the information bulletin, with view to helping them understand their function in administering the tax. In drafting an information bulletin, the Saskatchewan Government often had discussions with industry to see what they would like in the bulletin and, if they were able, the Saskatchewan Government incorporated those suggestions into the bulletin. The Saskatchewan Government did not impose the process on industry but used the process to help develop an information bulletin. [184] As result of the expansion of the tax base in the 2000 Provincial Budget, revisions were made to PST Bulletin 13 and PST Bulletin 14. As PST Bulletins 13 and 14 were being revised, Saskatchewan Finance discussed these matters with CAPP and PSAC. During this expansion of PST, there was no contemplation by Saskatchewan Government to change the definition of real property or tangible personal property by the legislation. [During this period of time, of course, it is important to remember that for most of the time covered by Husky’s refund claim, the sales tax was known as the Education and Health Tax, or the E&H tax. Starting as of this budget announcement of March 30, 2000, the tax became known as the Provincial Sales Tax or the PST.] [185] The Saskatchewan Government, in having discussions with the oil producer industry, dealt with the oil and gas companies through CAPP, as CAPP represented, at the time, about 170 oil and gas companies. Utilizing CAPP was an effective way for oil producers to have discussions with the Saskatchewan Government. The government also dealt with, and had discussions with PSAC, who represented the various oil industry service contractors. [186] PST Bulletins 13 and 14 dealt with different activities in the oil industry, one being an interpretation bulletin for the oil producer and the other being an interpretation bulletin for the service contractors. [187] After an initial draft of PST Bulletin 14, the Saskatchewan Government provided CAPP with the draft of the Bulletin 14 for discussion purposes. On September 19, 2000, CAPP replied to Saskatchewan Finance with some of CAPP’s submissions on PST Interpretation Bulletin 14. In that correspondence, CAPP took an opportunity to raise concerns about well cementing contracts. CAPP said the following in para. on p. of their September 19, 2000 correspondence to Saskatchewan Finance: D. Contractors 2. Service Contractors Reservoir stimulation and cementing service contractors should be treated in the same fashion as supply and install contractors. In this respect, tax should be calculated on the contractor’s costs, not the mark-up included material portion of the contract price. This was the first that CAPP had suggested that the cementing contractor should be treated as supply and install contractors. [188] Saskatchewan Finance’s understanding or view of the difference between “supply and install contract” and the “sale of tangible personal property” was explained by Saskatchewan Government’s witness, Mr. Dobson. Mr. Dobson testified that the Saskatchewan Government interprets “supply and install contract” such that the subject matter of the sale is sale of real property or an improvement to real property, such that in the course of delivering that sale or improvement, the contractor was the consumer of the materials used in building that real property or in the improvement to real property. Mr. Dobson indicated that the Saskatchewan Government did not view these transactions as supply and install contracts. [189] As stated, the Saskatchewan Government was also in discussions with PSAC. On September 25, 2000, PSAC wrote to Saskatchewan Finance respecting the draft Bulletin PST 13. Saskatchewan Finance responded to PSAC’s request to review the draft of PST 13. Saskatchewan Finance provided draft Bulletin 13 for discussion purposes to PSAC. The following was included in that draft bulletin at para. (Plaintiff Third Party Exhibit 87): C. EXEMPT SERVICES Tax does not apply to charges for contract services, such as drilling, seismic surveys, coring, logging and perforating. However, the tax must be paid by the contractor on the cost of any materials used in providing these services, including drill bits, casing, tubing, drilling fluids, welding rods, explosives, sealants, lubricants and solvents. ... E. TAXABLE SALES 1. Fracturing and Cementing Services It has become normal practice in the oil and natural gas industry for contractors providing reservoir stimulation and cementing services to itemize their charges to the customer and collect tax on the material portion of their service contracts. [190] On September 27, 2000, Saskatchewan Finance wrote to PSAC and asked PSAC to provide comments on the draft Bulletin 13 by October 16, 2000. [191] PSAC provided its comments on the proposed revisions to PST 13 in letter dated October 17, 2000. [192] At this same time, while SPIN Tax was providing tax advice to Husky about the payment of PST, SPIN Tax was also providing tax advice to PSAC in relation to the PST issues in Saskatchewan. In fact, SPIN Tax assisted the PSAC in preparing PSAC’s October 17, 2000 response to Saskatchewan Finance. On October 17th, PSAC responded to Saskatchewan Finance with commentary on the advised information Bulletin PST 13. The PSAC response to the draft Bulletin 13 was as follows: ... C. EXEMPT SERVICES Tax does not apply to charges for contract services, such as drilling, seismic surveys, coring, logging and perforating. However, the tax must be paid by the contractor on the cost of any materials used in providing these services, including drill bits, casing, tubing, drilling fluids, welding rods, explosives, sealants, lubricants and solvents. Why are contract services such as cementing, well stimulation, MWD, under-balance drilling not included in this list for exempt services? These services, including drilling and perforating, are real property contracts where the contractor uses or consumes materials in providing these services. [Emphasis added] ... E. TAXABLE SALES 1. Fracturing and Cementing Services It has become normal practice in the oil and natural gas industry for contractors providing reservoir stimulation and cementing services to itemize their charges to the customer and collect tax on the material portion of their service contracts. This appears to be inconsistent with the other real property contracts where contractor supplies and installs materials for the improvement to real property. The cementing service and well stimulation service contractors are the user and consumer of the materials used or consumed in his performance of the real property contract. These contractors want to be treated the same as any other contractor. [Emphasis added] ... This response by the PSAC, prepared with SPIN Tax advice, supported Husky’s suggestion that these were supply and install contracts. [193] At some point after October 2000, the members of PSAC became aware that SPIN Tax was or had worked with several of the producer companies, including Husky to file refund claims for PST on contingency basis. PSAC also understood SPIN Tax was providing advice to Husky and other producers seeking to be paid by percentage of the refund claims. PSAC became uncomfortable as to whether SPIN Tax was giving PSAC impartial advice. PSAC chose to stop working with SPIN Tax. [194] PSAC then got advice from chartered accounting firm with respect to the proposed sales tax amendments. PSAC was concerned whether the proposed sales tax amendments being contemplated by Saskatchewan Finance would have any impact on the “Manufacturing and Processing Tax Credit” they were receiving from the Federal Government for federal income tax purposes. PSAC became concerned that changes to the commercial arrangements with producers would have negative effect on the service contractor’s Federal “Manufacturing and Processing Tax Credit”. [195] In about February of 2001, the Saskatchewan Government notified the PSAC that certain of the producers had made claims to Saskatchewan Finance for refund of the PST charged by the cementing contractors for materials provided in the 1996 to 2001 period. PSAC was advised that Saskatchewan Finance had denied the application for the refund. PSAC had been unaware of the producer’s claim for refund of PST. [196] In March of 2001, PSAC responded to Saskatchewan Finance advising that the matter was under consideration and they would respond in due course. [197] At that point, it became clear that the producer, Husky, and the cementing contractors were describing the contracts differently to Saskatchewan Finance. Husky sought to characterize the cementing contracts as supply and install contracts such that the cementing contractors would pay the PST on the materials. The cementing contractors continued to take the position that the cementing contracts, and the manner in which the contracts had been dealt with by the parties over the years, should be maintained, such that they separated materials and services required to complete their contracts. Through these discussions, the Saskatchewan Government proposed legislative amendment that would result in the producers being deemed to be the consumers of the materials. If this amendment were implemented, Husky would have to abandon its refund claims. [198] Throughout these discussions, Saskatchewan Finance advised the producers and the cement contractors that Saskatchewan Finance took the position that the contractors had properly applied the provisions of the PST Act in accordance with the contracts between producers and contractors. On October 9, 2001, Saskatchewan Finance wrote to the PSAC advising that PSAC members should continue to apply and administer the PST in the way it had. [199] While these discussions were ongoing with Saskatchewan Finance, nothing changed between the parties in terms of the way in which they dealt with the contracts between the producers and the cementing contractors. The request for bids continued; the bids continued; Master Service Agreements continued, or not; the invoicing continued; and the undertaking of the work continued, all in the same way it had for years. The third party contractors continued to charge PST on the materials. [200] On October 26, 2001, Husky submitted second refund claim. Again, Husky wrote to Saskatchewan Finance making claim for refund of PST. Husky wrote the following: Please be advised that the provincial sales tax paid by Husky Oil Operations Limited (Husky) on materials used by well service contractors (the Contractors) in performing reservoir stimulation and cementing services on our properties in Saskatchewan, is in dispute. The Provincial Sales Tax Act (the Act) deems the Contractor to be the consumer of the materials used in the performance of these services. Consequently, Husky has no obligation under the Act to pay any tax on these materials. Please consider this letter as notification to the Minister of Finance that Husky has paid tax in error on these materials and of our request for that tax paid in error to be included in your audit. We have enclosed the schedules outlining tax in the amount of $179,765.67 paid by Husky in error under the Act on materials used or consumed by contractors providing reservoir stimulation and cementing services. summary of all sales tax paid in error by Husky and its predecessors related to this issue, is also enclosed. We also wish to inform you that Michael McCourt and Garth Thompson of SPIN Tax Solutions Inc. have been authorized by us to discuss, review and correspond with the Saskatchewan Finance Revenue Division on our behalf on this issue. [201] On July 23, 2002, Saskatchewan Finance denied the second refund claim. On that date, Barbara Ames, CMA, Supervisor of the Saskatchewan Audit Office, wrote the following to Husky, with copy to Jim Nelson and SPIN Tax Solutions: Your letter of October 26, 2001, addressed to Mr. Jerome Latos, has just been forwarded to me; apologize for the lengthy delay in this response. Saskatchewan Finance has had long-standing arrangement allowing the oil industry to bill in this manner. The oil producers wanted firms (including fracturing and cementing firms) working for them to provide details of all charges on their invoices. We allowed this billing procedure, as we were advised materials were always billed at or near cost. The result of this method of billing allows firms, such as yours, to be aware of all charges that are included in the price of the job. As you are aware, Saskatchewan Finance has held meetings and is presently corresponding with both the Canadian Association of Petroleum Producers (CAPP) and the Petroleum Services Association of Canada (PSAC) to attempt to reach resolution on this matter. If you have any further questions or require further information please contact me at: [202] None of the third party cementing contractors were parties to any of the correspondence between Husky and Saskatchewan Finance. [203] On December 7, 2001, Husky Energy wrote to Saskatchewan Finance advising the following: This will serve as notice that we are exercising our option to not pay PST in respect to materials used or consumed by well service contractors in the course of providing their services to Husky Oil Operations Limited (Husky). This option is specifically stated in Saskatchewan Finance’s Information Bulletin PST-14 2000/12, Section and was outlined in more detail to Husky and other industry representatives at meeting with Saskatchewan Finance officials at the offices of the Canadian Association of Petroleum Producers (CAPP) approximately year ago. In accordance with the Saskatchewan Provincial Sales Tax Act (the Act) and Regulations, the consumer or user of tangible personal property (TPP) is obligated to pay the provincial sales tax (PST) on TPP they use or consume. The well service contractors (the Contractors) provide cementing and well stimulation services to Husky on oil and gas properties in Saskatchewan and use or consume materials such as cement and fracturing fluids in the performance of these services. Most of these materials are produced or processed by the Contractor rather than being purchased and consumed by the Contractor. Under these circumstances, the Contractor is deemed to be the consumer or user of the materials by subsection 5(6) of the Act. Since the Contractor is liable for the PST on the consumption or use of these materials, Husky has no obligation to pay any tax on these materials. Although Saskatchewan has also administratively allowed Contractors to charge the PST on these materials to companies such as Husky, we have also notified the Minister [sic] Finance that we consider this to be tax paid in error by Husky. This notification was given on October 4, 1999. We respectfully request that this tax paid in error be refunded to Husky. We have informed our well service contractors by letter (copies attached) that we will be following the alternative method found in Information Bulletin PST-14, which recognizes the contractor as the user or consumer of the materials in their performance of cementing or well stimulation services. We hereby authorize Messrs. Peter Mitchell, Don Biberdorf and Blair Nixon of Felesky Flynn to represent us in dealings with Saskatchewan Finance in respect of this matter. Garth Thompson and Michael McCourt of SPIN Tax Solutions Inc. have already been authorized by us to deal with Saskatchewan Finance on this matter. [204] On that same date, Husky wrote to Sanjel, Trican and BJ Services, the third party contractors in this action, requesting that each of them stop charging the PST on the materials on well cementing contracts. In this letter, Husky purported to indicate that they were exercising an option provided to Husky by the Saskatchewan Government. That December 7, 2001 correspondence stated the following: Enclosed is copy of letter dated December 7, 2001, to Mr. Rob Dobson, Director of Provincial Sales Tax of Saskatchewan Finance regarding the Provincial Sales Tax (PST) collected on materials used in reservoir stimulation and cementing services in Saskatchewan. Husky has reviewed Saskatchewan Finance’s policy found in Information Bulletin PST-14 [2000/12 Section D] with respect to taxation of materials consumed or used in real property improvements made by contractors on our properties in Saskatchewan. It states that the well service contractor (the Contractor) is the consumer of materials used in the business of constructing, altering, repairing or improving real property for others where the contractor agrees to supply and install the materials under an agreement between Husky and the Contractor for the improvement of real property. In addition to this policy, the Contractor, who produces or manufactures materials used in the performance of these real property contracts, is deemed to be the consumer of these materials by subsection 5(6) of the Provincial Sales Tax Act (the Act) and is responsible for payment of the PST. This deeming provision is not related to any income tax issues for your company. Based on the Saskatchewan Finance’s police and the Act in this matter, Husky asks that you stop charging and collecting the PST on the materials supplied and used in the performance of these real property contracts. We recommend you contact Mr. Rob Dobson at (306) 787-7785 of Saskatchewan Finance for any further clarification on this matter. [205] On December 24, 2001, Saskatchewan Finance responded to Husky and said the following: Thank you for our letter of December 7, 2001, which was received in this office on December 17, 2001. In that letter, you provided us with notice of your intention to exercise the option of no longer paying Provincial Sales Tax (PST) on the materials invoiced to Husky Energy by well service contractors for contracts performed in Saskatchewan. With respect, you seem to have misunderstood the “option” that Saskatchewan Finance (Finance) has presented to the petroleum industry regarding these contracts. As you know, there is an ongoing dispute with respect to the proper application of PST to the contracts currently used by the petroleum industry for these services. The current method of tendering, contracting and invoicing for these services is ambiguous for PST purposes. Although these are prima facie services provided in respect to real property, those documents are drafted in terms of separate sale of labour and separate sale of materials. For several years, the service contractors have levied, and the petroleum producers have paid, PST on the separate charges for the materials used or consumed in carrying out these well servicing contracts. In the hopes of resolving this dispute, senior officials from Saskatchewan Finance (Finance) have met with you and other representatives of the petroleum industry. Finance invited the service contractors and petroleum producers to revise their form of contract to more clearly specify that these are services in respect of real property and that both parties agree that the service contractor is the consumer of the materials used in providing these services. This is the “option” that was presented by Finance during our meetings in Calgary and that is set out in Information Bulletin PST-14. We have also suggested that, should the petroleum industry adopt standardized and consistent manner of contracting for these services that clearly specifies who is the consumer of the materials, Finance would be prepared to negotiate settlement of the refund claims that have been filed. At the time of our meetings, there appeared to be some interest in clarifying these contracts and Saskatchewan Finance offered to review any revised documentation in order to confirm the sales tax consequences. To date, we have not received any requests to review revised documentation and, to the best of our knowledge, the industry continues to contract for these services, and to account for the PST, in the same manner that has been used for the past several years. On July 20, 2001, sent letter to the tax consultants representing some of the refund claimants setting out Finance’s position with respect to this issue. Copies of this letter were sent to the Canadian Association of Petroleum Producers (CAPP) and to the Petroleum Services Association of Canada (PSAC). In response to that letter, we received letter, dated September 27, 2001, from PSAC indicating that it is the intention of the members of that association to continue to structure these contracts as separate sale of materials and separate sale of labour services for the installation of those materials on real property. It is now apparent that it has been the intention of the service contractors all along that those contracts consist of separate sale of materials and separate sale of installation labour. According to PSAC, the service contractors have deliberately structured their commercial relationships with their customers in this manner for reasons set out in the following Court cases: Haliburton Services Ltd. v. R. (1985) 85 D.T.C. 5336 (Fed. Trial Div.) and Nowsco Well Service Ltd. v. Canada (1990) 90 D.T.C. 6313. PSAC has further advised that they will support any legislative framework which clarifies those relationships for PST in manner that is consistent with the findings of these cases. As mentioned during our meetings, and in subsequent correspondence with the parties involved in this dispute, it is Finance’s opinion that we are not in position to dictate how parties structure or arrange their commercial transactions. Furthermore, the assertion that subsection 5(6) of The Provincial Sales Tax Act overrides contractual provisions between the parties to deem service-provider to be the consumer of materials in all cases is inconsistent with long history of sales tax administration in Saskatchewan and other jurisdictions. We agree that subsection 5(6) of The Provincial Sales Tax Act deems supply and install contractor to be the consumer of materials used to carry out improvements to real property in the absence of evidence to the contrary. would be pleased to provide you or your legal representatives with examples of situations where contractual provisions have been used to alter or avoid the application of subsection 5(6). In our view, Finance is now caught in the middle of what is essentially dispute between one party alleging that they are making sale of tangible personal property and the other alleging that they are purchasing services in relation to real property. If Finance were to acknowledge that these are services to improve real property and consequently require the service contractors to account for tax on the materials, it is possible that PSAC would commence lawsuit against Finance to obtain declaration to the contrary. Finance will consider legislative amendment if it is felt that this dispute may jeopardize PST revenues or compromise the consistent and fair administration of the PST. Finance is still interested in resolving this dispute amicably. However, in view of the divergent positions taken by the service contractors and the petroleum producers with respect to these contracts, it seems that such resolution is now unlikely. trust that have made our position in this matter is [sic] clear. would be pleased to discuss this further if you wish. In the meantime, must advise you that taxpayer does not have an option as to whether or not to pay tax. Vendors of tangible personal property have legal obligation to collect and remit tax on the goods they sell and taxpayers have duty to pay tax on the goods they acquire. Any vendor or taxpayer who fails to comply with this statutory duty may be assessed for the tax that is not collect [sic] or paid. will be forwarding coy of this letter to PSAC and CAPP, as well as those service contractors to whom you wrote on December 7, 2001 so that they are aware of our position in this matter. will also be providing copy to Garry Moran, our solicitor at Saskatchewan Justice. Should your legal representative wish to contact him, Mr. Moran may be reached at (306)787-7444. Finally, thank you for continuing to communicate with us regarding this issue. Please contact us at any time if you feel we may be of assistance with regard to this issue or any other PST matter. ... [Emphasis in original] [206] On that same date, December 24, 2001, Saskatchewan Finance wrote to the third party contractors saying the following: am writing further to the letter that was sent to you on December 7, 2001 by Hugh Magill of Husky Energy. In that letter, Mr. Magill provided you with notice that Husky has chosen to no longer pay Provincial Sales Tax (PST) on the materials billed to Husky for well servicing contracts in Saskatchewan. am writing to advise you that such an option is not available to Husky Energy. As you may know, the application of PST to well servicing contracts is the subject of an ongoing legal dispute. At issue is the determination of which party is the consumer of the materials used in carrying out those contracts. The background to that dispute, as well as Saskatchewan Finance’s position with respect to this issue, is set out in the enclosed letter. Pending resolution of this dispute, you may continue to apply and invoice PST as you have in the past. If it is your company’s intention that your contracts are comprised of separate sale of materials and separate sale of labour, clear provision to that effect in your contracts and invoices may help to provide support for this manner of applying PST to your contracts. Conversely, if it is your intention to provide service involving the improvement of real property, provision acknowledging that your company is the consumer of the materials will assist in providing clarification. If this is your intention, you will be required to self-assess PST to the manufactured cost of the materials consumed in carrying out your services and PST should not be applied to the amount invoiced for your services. [207] Saskatchewan Finance indicated to the third parties and Husky that Husky appeared to have elected to have exercised an option that did not exist, without change to the structure or format of the transactions between Husky and the third party contractors. Saskatchewan Finance took the position that Husky did not have the option of discontinuing to pay the PST, unless there was change in the structure of the transactions between Husky and the cementing contractors. [208] At the same time, on December 17, 2001, each of the third parties wrote to Husky advising that they would not be changing their practice with respect to the PST on well cementing contracts. The third parties indicated they would continue to apply the PST to the invoice price of materials until Saskatchewan Finance advised them to do otherwise. [209] In early 2002, various producers and contractors met to attempt to put together proposal that they could submit to Saskatchewan Finance in an attempt to resolve this matter in manner that was acceptable to all parties. In the end, no change occurred. [210] It is clear that the third parties were not bound by the discussions amongst PSAC, CAPP and SPIN Tax and the Saskatchewan Government, nor were they bound by the representations made by PSAC. [211] The issue to be determined is who bears the liability for Saskatchewan PST in the context of well cementing contracts between Husky and the third parties. Is Husky entitled to judgment against the Government of Saskatchewan for refund of the PST paid on the well cementing contract? ANALYSIS Burden of Proof [212] Husky asserts the burden of proof in this case is the burden of proof set out in an appeal of an assessment for tax. That is, Husky asserts that Husky, as the taxpayer, bears the initial onus of contesting the Minister of Finance’s assessment. Husky submits the taxpayer has the onus to demolish the facts on which the taxation is based (Johnston v. Canada (Minister of National Revenue), 1948 CanLII (SCC), [1948] S.C.R. 486). Husky asserts that the assumptions of fact made by the Minister of Finance, upon which the Minister of Finance determines that the tax is owing, has the effect of reversing the burden of proof and casting on the taxpayer the onus of disproving the facts which the Minister has assumed (Anchor Pointe Energy Ltd. v. Canada, 2003 FCA 294 (CanLII), 308 N.R. 125). [213] Husky takes the position that it is therefore incumbent on the Saskatchewan Government to set forth in its defence pleadings of the facts upon which it relied in denying the refund claims. Husky asserts the facts relied on by the Saskatchewan Government must be accepted as fact, unless they are contested by the taxpayer (Johnston, supra). Husky goes on to assert that if the statement of defence does not contain specific allegations setting forth the facts or assumptions on which the denial of the refund claim is based, Husky is entitled to establish what facts were assumed or relied on in denying the refund claim (David Tobias v. M.N.R., (1978) 78 D.T.C. 6028 (F.C.T.D.)). Husky indicates that the Government of Saskatchewan’s statement of defence in this action did not identify the specific assumptions of fact relied on by the Saskatchewan Government when it denied the refund claims. Husky asserts that because the Saskatchewan Government failed to plead the assumptions of fact relied on when it denied the refund claims, the Saskatchewan Government does not have the benefit of the reverse onus (Bowens v. R., (1994) 94 D.T.C. 1853 (T.C.C.)). [214] Husky goes on to suggest that the refund claims here were denied on the basis of the facts set forth in the two letters written by officers of the Saskatchewan Government when the Saskatchewan Government denied Husky’s refund claims: the November 29, 1999 letter and the July 23, 2002 letter. Husky then says it has three options to deal with the facts relied on by the Saskatchewan Government: (1) challenge the Minister’s allegations that he did assume these facts; (2) assume the onus of showing that one or more of these assumptions was wrong, or (3) contend that even if the assumptions were justified, they do not support the assessment (Minister of National Revenue v. Pillsburys Holdings Limited, (1964) 64 D.T.C. 5184 (Ex.Ct.). Husky asserts that it is entitled to succeed in its appeal of the denial of the refund claims if it is able to establish the facts upon which the refund claims were denied do not themselves support the denial under the PST Act. [215] The Saskatchewan Government does not accept that the burden of proof is as suggested by Husky. The Saskatchewan Government suggests that the burden of proof is that set out in civil trial, as articulated by the Supreme Court of Canada in F.H. v. McDougall, 2008 SCC 53 (CanLII), [2008] S.C.R. 41. The Saskatchewan Government argues that the appropriate standard of proof is proof on balance of probabilities, and that Husky bears the onus of proof. The Saskatchewan Government submits that this Court, in determining if Husky has met the onus, must scrutinize the evidence with care in order to determine whether the evidence is sufficiently clear, convincing and cogent to satisfy the balance of probabilities test. [216] The third party contractors do not accept that the burden of proof is as suggested by Husky. The third parties suggest the onus here is on the taxpayer Husky and the standard of proof remains civil balance of probabilities. The third parties indicate that the onus and standard has been accepted for the purpose of provincial tax appeals and refer the court to the cases of Johnston v. Minister of National Revenue, supra, Hickman Motors Ltd. v. Canada, 1997 CanLII 357 (SCC), [1997] S.C.R. 336, [1997] S.C.J. No. 62 (QL); Northland Properties Corp. v. British Columbia, 2010 BCCA 177 (CanLII), B.C.L.R. (5th) 63; Spie Construction Inc. v. Ontario, [2005] O.J. No. 2291 (QL)(Ont. Sup.Ct.). [217] There were considerable submissions, comments and discussion by the parties on the standard of proof relating to tax appeals, even in the context of provincial tax appeals. However, this case is not an appeal of provincial tax assessment. In this case, Husky paid the tax to the Saskatchewan Government. It did so based on the way in which Husky’s transactions with the third party contractors were structured. Husky later suggested to the Minister of Finance that Husky improperly paid this tax and that Husky had not had an obligation to pay that tax despite the fact that it had paid without question. Husky then sought re-assessment. The Minister of Finance refused to re-assess the tax. Husky did not appeal that refusal to re-assess, as was the case in Northland Properties Corp., supra, and Spie Construction Inc., supra. Husky took no appeal from the position of the Minister of Finance. Husky took no appeal from the refusal to re-assess. Rather, Husky sued, in this civil action, for refund of the tax, which it said it paid improperly to the third party contractors. The plaintiff’s pleadings in paras. 13, 14, 21 and 22 state: 13. On or about October 28, 1999 and October 13, 2001, the Plaintiff notified the Saskatchewan Minister of Finance (the “Minister”) in writing that the Sales Tax on the Cement and Fracturing Fluid had been charged to and paid in error by the Plaintiff and the Plaintiff asked that the Sales Tax be refunded with interest. 14. The Minister has failed or refused to refund the Sales Tax to the Plaintiff. 21. The Plaintiff seeks judgment against the Defendant in the amount of $419,964.69 $393,289.73, representing the Sales Tax paid in error by the Plaintiff to the Defendant. 22. The Plaintiff seeks interest on the amount claimed from the date of payment of the Sales Tax to the date of judgment at the rate and in the manner prescribed by the regulations under The Revenue and Financial Services Act. [218] Husky has commenced civil action where it seeks to prove that the PST was paid in error, or improperly paid, by Husky. This action is not an appeal of an assessment or re-assessment. It is civil action for judgment of monies which Husky alleges it paid in error. [219] The Supreme Court of Canada, in F.H. v. McDougall, supra, said the following about the standard of proof in civil case: 40 Like the House of Lords, think it is time to say, once and for all in Canada, that there is only one civil standard of proof at common law and that is proof on balance of probabilities. Of course, context is all important and judge should not be unmindful, where appropriate, of inherent probabilities or improbabilities or the seriousness of the allegations or consequences. However, these considerations do not change the standard of proof. am of the respectful opinion that the alternatives have listed above should be rejected for the reasons that follow. 44 ... In my view, the only practical way in which to reach factual conclusion in civil case is to decide whether it is more likely than not that the event occurred. ... 46 Similarly, evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test. But again, there is no objective standard to measure sufficiency. In serious cases, like the present, judges may be faced with evidence of events that are alleged to have occurred many years before, where there is little other evidence than that of the plaintiff and defendant. As difficult as the task may be, the judge must make decision. If responsible judge finds for the plaintiff, it must be accepted that the evidence was sufficiently clear, convincing and cogent to that judge that the plaintiff satisfied the balance of probabilities test. ... 49 In the result, would reaffirm that in civil cases there is only one standard of proof and that is proof on balance of probabilities. In all civil cases, the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred. [220] conclude that Husky bears the onus of proving that Husky is not liable for the payment of the PST. The standard of proof is proof on balance of probabilities. am required to scrutinize the evidence with care to determine whether the evidence is sufficiently clear, convincing and cogent to satisfy the balance of probabilities test, and in this case, whether it is more likely than not that Husky is not liable for the payment of the PST. Law in Relation to Interpretation of Tax Legislation [221] The issues before the court involve the interpretation of tax legislation as it relates to the transactions between Husky and the third party contractors. [222] In Canada Trustco Mortgage Co. supra, the Supreme Court of Canada set out the approach to interpreting legislative provision. The court said, at para. 10 It has been long established as matter of statutory interpretation that "the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament": see 65302 British Columbia Ltd. v. Canada, 1999 CanLII 639 (SCC), [1999] S.C.R. 804, at para. 50. The interpretation of statutory provision must be made according to textual, contextual and purposive analysis to find meaning that is harmonious with the Act as whole. When the words of provision are precise and unequivocal, the ordinary meaning of the words play dominant role in the interpretive process. On the other hand, where the words can support more than one reasonable meaning, the ordinary meaning of the words plays lesser role. The relative effects of ordinary meaning, context and purpose on the interpretive process may vary, but in all cases the court must seek to read the provisions of an Act as harmonious whole. [223] In Placer Dome Canada v. Ontario (Minister of Finance), 2006 SCC 20 (CanLII), [2006 ]1 S.C.R. 715, the Supreme Court acknowledged that where provision admits more than one reasonable interpretation, emphasis must be placed on the scheme, context and purpose of the relevant Act. [224] In this situation, Husky and the third parties structured the transactions. The Government of Saskatchewan had no involvement in the structure of the transactions. As the result of the legal relationship that was created between Husky and the third parties, PST was applied to the sale of cement in the transactions. [225] It is well established that parties are entitled to structure their legal relationships and legal arrangements that they have with other parties as they see fit. It is clear that taxpayer’s legal relationship with others must be respected in tax case. The Supreme Court of Canada, in Shell Canada Ltd. v. Canada, 1999 CanLII 647 (SCC), [1999] S.C.R. 622, 178 D.L.R. (4th) 26, confirmed this view. At paras. 39 and 45, Chief Justice McLachlin said the following: 39 This Court has repeatedly held that courts must be sensitive to the economic realities of particular transaction, rather than being bound to what first appears to be its legal form... But there are at least two caveats to this rule. First, this Court has never held that the economic realities of situation can be used to recharacterize taxpayer's bona fide legal relationships. To the contrary, we have held that, absent specific provision of the Act to the contrary or finding that they are sham, the taxpayer's legal relationships must be respected in tax cases. ... 45 However, this Court has made it clear in more recent decisions that, absent specific provision to the contrary, it is not the courts' role to prevent taxpayers from relying on the sophisticated structure of their transactions, arranged in such way that the particular provisions of the Act are met, on the basis that it would be inequitable to those taxpayers who have not chosen to structure their transactions that way... The courts' role is to interpret and apply the Act as it was adopted by Parliament. Obiter statements in earlier cases that might be said to support broader and less certain interpretive principle have therefore been overtaken by our developing tax jurisprudence. Unless the Act provides otherwise, taxpayer is entitled to be taxed based on what it actually did, not based on what it could have done, and certainly not based on what less sophisticated taxpayer might have done. [226] So it is clear that parties are able to construct their agreements in whatever form they choose to. The court must determine whether the tax is payable, based on the agreements as constructed. [227] The jurisprudence discussing the interplay of tax legislation and the interpretation of sophisticated transaction also provides guidance. In Newfoundland Telephone Co. v. Newfoundland (Attorney General), (1992) 1992 CanLII 7303 (NL SC), 102 Nfld.& P.E.I.R. 288, [1992] N. J. No. 188 (QL) (Nfld. S.C.), the Newfoundland Trial Division highlighted the difficulty in analyzing the exact nature of transaction. This case was situation where the appellant telephone company utilized digital multiplex system switches. Their function was controlled by software comprising operational and application software. The telephone company used the application software under licence and alleged the software was not taxable as tangible personal property, but rather was provision of services or transfer of expert knowledge. The province taxed the software on the basis that it was billed separately. The Newfoundland Supreme Court Trial Division dismissed the taxpayer’s appeal on the basis that tangible product was supplied by the software enabling the switch to perform its pre-determined function and therefore the software was taxable. The Newfoundland Court said the following: ... the distinction between product and service is not always easy to discern. There are of course very few service contracts which do not involve the transfer of tangible personal property and many sales include elements of service. The test to determine the character of the transaction is the essence of the transaction or primary purpose test. By its nature this is vague test. ... One should expect to find, as in this case, if there is service the cost of the tangible is insignificant when compared to the value of the knowledge or skill of the person providing the service (eg. the paper on which is presented professional opinion). However, as noted above, it is not unusual to find there is great deal of skill, time and money involved in producing product in which the raw materials make up only small part of its value. Of course all of these indicia are consistent with the existence of service but are not determinative. Is the primary purpose of the transaction between Northern Telecom and Newfoundland Telephone the transfer of product or provision of services, incidentally to which property in goods passed from one party to another? conclude what Newfoundland Telephone wanted and got from Northern Telecom was product, set of instructions, which enabled its DMS switch to perform certain specified functions. [228] Parties are free to negotiate and structure their contracts as they see fit, having regard to their businesses and the agreements that they are undertaking. The structure of the parties’ agreements matter. The Federal Court of Appeal, in Friedberg v. Canada, [1992] C.T.C. 1, 135 N.R. 61 (F.C.A.), was case where taxpayer made donation and claimed it as deduction. Documents were created which documented the arrangement. The court noted that in taxation matters, documentation is important. The court said that the intention of the party may clarify the situation, but intention is not determinative and such an intention cannot be used to correct documents which point in another direction. The court also indicated that while intention can be used as clarification, later corrections may not be acceptable. [229] Likewise, in Damon Developments Ltd. v. Canada (Minister of National Revenue), [1988] C.T.C. 2266, 88 D.T.C. 1128 (T.C.C.), the Tax Court of Canada commented that allocations which are made in an executed agreement of purchase and sale were conclusive on the issue of whether certain purchases were capital assets or current and deductible expenses. The court said that an allocation made in an executed agreement of purchase was conclusive. Any acceptance of subsequent allocation by only one of the parties was not decisive, because it ignored the viewpoint of the other party. The court went on to say that the allocation in the agreement of purchase and sale as was reported in the taxpayer’s return was not arrived at through mistake, but through negotiation between the parties. The court said it would be inappropriate in that circumstance to rely on evidence provided by the corporation to set aside such an allocation, which was arrived at deliberately between the parties and relied on in preparing their returns. [230] In Preload Company of Canada v. Regina (City), (1958) 1958 CanLII 186 (SK CA), 24 W.W.R. 433, 13 D.L.R. (2d) 305 (Sask. C.A.), the Saskatchewan Court of Appeal identified that whether contract is one for the sale of goods or one for work or services depends on the essential character of the agreement. This approach was endorsed by the Saskatchewan Court of Appeal in CIC Mining Corp. v. Saskatchewan Government Insurance, 1994 CanLII 4565 (SK CA), [1994] 10 W.W.R. 1, 123 Sask. R. 219 (Sask. C.A.). Chief Justice Bayda, in concurring decision, said the following at para. 60 After summarizing some English and Canadian cases on the point to illustrate the "variation in the views expressed" by the courts, Professor Fridman in his Sale of Goods in Canada, 3d ed., (Toronto: Carswell, 1986) states his preference for the Preload approach, an approach consonant with that taken by the English Court of Appeal in Robinson v. Graves, [1935] K.B. 579 (C.A.), and paraphrases the approach in these words (p. 22): In other words, if the primary object of the contract is the transference of property in something which was not originally the property of the "buyer", the contract will be one of sale of goods, but if the primary purpose of the parties is the performance of certain work, or the provision of services, incidentally to which property in goods is to pass from one party to the other, the contract will not be one of sale of goods. [231] It is also important to note that courts have concluded that contracts can provide for the provision of both goods and services. The courts have indicated that where there is provision of both goods and services in contract, those components can be separated such that tax can be applied to the sale of goods. In Craftsman Collision Ltd. v. British Columbia, 2007 BCCA 170 (CanLII), 65 B.C.L.R. (4th) 381at para. 29, the British Columbia Court of Appeal said: 29 The Province referred to this Court's decision in Continental Commercial Systems Corp. v. British Columbia (1982), 1982 CanLII 458 (BC CA), 138 D.L.R. (3d) 503, 37 B.C.L.R. 297 (C.A.). That case concerned the sale of cheque‑guaranteeing business. part of the purchase price was allocated to each of computer hardware and computer software. This Court decided that for taxation purposes, the software was separable from the hardware, notwithstanding that the two were sold together. This decision seems to contradict the Crown's position. Similarly, in Ikon Solutions Inc. v. British Columbia, [1998] B.C.J. No. 1408 (S.C.), leave to appeal dismissed (1999), 99 G.T.C. 7083, 1999 BCCA 89 (CanLII), the taxpayer internally allocated the contract price between taxable goods and non‑taxable services according to formula. Notwithstanding the all‑inclusive price, the Court found that the taxpayer had fairly determined the portion of the price representing the goods supplied and properly charged its customer tax on that portion. Thus, it cannot be said that different components of an agreement cannot be separated or "unbundled" in the absence of express statutory provisions. [232] In Ikon Office Solutions Inc. v. British Columbia, (1998) 98 G.T.C. 6282, [1998] B.C.J. No. 1408 (QL) (B.C.S.C.) (leave to appeal dismissed 1999 BCCA 89 (CanLII), [1999] B.C.J. No. 284 (QL)), the British Columbia Supreme Court determined that allocation in an invoice of the contract price between goods and services is bona fide. The court said that PST was properly applied to the portion of the invoice which was allocated to the sale of the goods, even though, on the face of the contract, it was not separate sale of goods from services. At para. 8, the court said the following: ... It is conceded that the issue turns on the interpretation of the contracts between Ikon and its customers. Ikon internally allocated the contract price between goods and services according to formula which accurately reflected the proportion of goods to services supplied, albeit on an average basis. It charged sales tax on that portion to its customers and the tax charged is identified as such on the customer's invoice. The price to the customer, apart from tax, was an all inclusive price and there is no additional charge for toner or parts. However, no additional charge is not the same as no charge. There was charge included in the price, confirmed by the tax billed, which was only levied on goods and not services.... [233] Parties are free to negotiate and structure their contracts as they see fit. The documents created in the transaction are relevant to the interpretation of the transaction, as it pertains to the tax legislation. contextual and purposive analysis of the tax legislation must be undertaken. In doing so, the legal relationship of the parties must be respected. Saskatchewan Statutory Framework [234] The Province of Saskatchewan imposes the PST on all purchases, of goods within the province. The Province of Saskatchewan is only entitled to impose direct taxes. They do not have the constitutional authority to impose indirect taxes. As such, the PST must be imposed on the ultimate or final user or consumer of the goods, in order for it to be valid tax enacted within the Province’s taxing powers. These constitutional principles must be respected in the form, interpretation and application of the legislation. Tax is triggered when the last sale, for the purposes of consumption, occurs. [235] review of the legislative history of the various sections of the PST Act reveals that no material changes to the sections were made which would affect the issues of the time frame covered by this action (1996 to 2001). [236] The taxing provision in the PST Act is contained in s. 5. Subsections 5(1) and 5(2) are the general charging provisions of the PST Act. Those sections impose PST on consumers and users of tangible personal property. As stated, these sections did not change during the period of the claim, although the name and other parts of the legislation changed. Subsections 5(1) and 5(2) provide as follows: TAX ON CONSUMER OR USER Tax 5(1) ... every consumer of tangible personal property, purchased at retail sale in Saskatchewan shall pay to Her Majesty the Queen for the raising of general revenue, at the time of making his purchase, tax in respect of the consumption of the property and such tax shall be computed at the rate of 5% of the value of the property to be consumed. (2) ... every user of tangible personal property purchased at retail sale in Saskatchewan shall pay to Her Majesty the Queen for the raising of general revenue, at the time of making his purchase, tax in respect of the use of the property, and such tax shall be computed at the rate of 5% of the value of the property to be used. [237] The provisions of the PST Act and the definitions contained in the PST Act impose tax on users and consumers of tangible personal property in circumstances where that tangible personal property was not purchased for resale, but was purchased by the final user or consumer. [238] The applicable rate of PST varied over the time between 1996 to 2001, but the obligation was always set by s. of the PST Act. [239] Subsections 5(1) and 5(2) of the PST Act impose tax on every consumer and user of tangible personal property purchased at retail sale in Saskatchewan. As such, the relevant analysis here is whether there was retail sale of tangible personal property and whether it is Husky or the contractors that used or consumed the material. Husky argues that the contractors did not purchase the materials for resale to Husky and as such, the contractors were liable for the PST on the material. Husky argues that the contractors used and consumed the materials. [240] Section 3(h) defines retail sale as “sale of tangible personal property to consumer or user for the purposes of consumption or use and not for resale as tangible personal property”. It is clear that one of the parties is responsible for paying PST when tangible personal property is used and consumed. The question here is which party is the user or consumer of the property that bears the incidence of the tax. [241] Subsection 3(1) of the PST Act sets out the definitions on which the s.5 charging provisions rely. The relevant portion of such definitions are as follows: 3(1) In this Act: (c) "consumer" means person who within the province purchases from vendor tangible personal property at retail sale in the province: (i) for his own consumption or for the consumption of other persons at his expense, or on behalf of, or as the agent for, principal who desires to acquire the property for consumption by the principal or other persons at the expense of the principal; (ii) for the purpose of providing taxable service with the tangible personal property; or (iii) for the purpose of promotional distribution, to the extent that the value of the property is greater than any payment intended to be and subsequently specifically made for that tangible personal property by the person to whom the property is to be provided; [emphasis added] [242] Consumer is given broad definition in the PST legislation. Consumer means person who purchases, from vendor, tangible personal property at retail sale: 1) for his consumption or for the consumption of other persons at his expense; 2) for the purpose of providing taxable service with the tangible personal property; or 3) for the purposes of promotional distribution. [243] User is defined in ss. 3(1)(m). The definition of user, again, is broad definition and includes many different types of transactions and structure. The definition of user is: 3(1) ... (m) "user" means any person who within the province: (i) purchases or leases from vendor tangible personal property at retail sale in the province for his own use or for the use of other persons at his expense, or on behalf of, or as the agent of, principal who desires to acquire the property for use by the principal or other persons at the expense of the principal; (ii) purchases or leases from vendor tangible personal property at retail sale in the province for the purpose of providing taxable service with such tangible personal property; (iii) purchases or leases taxable service from vendor for consideration for his own use or for the use of other persons at his expense, or on behalf of, or as agent of, principal who desires to acquire the taxable service for use by the principal or other persons at the expense of the principal; or (iv) purchases from vendor tangible personal property at retail sale in Saskatchewan for the purpose of promotional distribution, to the extent that the value of the property is greater than any payment intended to be and subsequently specifically made for that tangible personal property by the person to whom the property is to be provided; [emphasis added]; [244] As stated, the definition of user is fairly expansive. User means any person in the province who 1) purchases from vendor tangible personal property at retail sale for his own use, or 2) for the use of other persons at his expense or on behalf of principal who desires to acquire the property for his use or other persons at his expense. [245] Tangible personal property is defined as follows under ss. 3(1)(j): 3(1) ... (j) "tangible personal property" means personal property that can be seen or touched and includes gas used in the operation of internal combustion engines and turbines, and electricity; [246] The definition of “retail sale” and “sale” are found in ss. 3(1)(h) and (i) of the PST Act. Retail sale is defined as follows: 3(1) ... (h) "retail sale" means sale, including sale by auction, of: (i) tangible personal property to consumer or user for the purposes of consumption or use and not for resale as tangible personal property; (ii) taxable services to user for the purpose of use and not for resale; (iii) tangible personal property to consumer or user who purchases the tangible personal property for the purpose of providing taxable service therewith; or (iv) tangible personal property to consumer or user to be used by the consumer or user for the purpose of promotional distribution; [247] Sale is defined as follows: (i) "sale" means: (i) any transfer, exchange, barter or lease, conditional or otherwise in any manner or by any means whatsoever, of tangible personal property for consideration; (ii) the furnishing of taxable service for consideration; and includes an agreement for sale of tangible personal property or taxable service whether absolute or conditional; (iii) the production, fabrication, processing, printing or imprinting of tangible personal property for consideration for person who furnishes either directly or indirectly all or part of the tangible personal property consumed or used in the production, fabrication, processing, printing or imprinting; or (iv) the transfer for consideration of the title to or possession of tangible personal property that has been produced, fabricated, processed, printed or imprinted to the order of the purchaser; [248] As can be seen, “retail sale” and “sale” include number of features. Retail sale includes sale of tangible personal property to consumer or user for the purposes of consumption or use and not for resale. sale includes any transfer or exchange of tangible personal property whether conditional, or in any manner, or by any means, for consideration. [249] As can be seen, the provisions of the legislation impose tax on users and consumers of tangible personal property where it is purchased by the final user or consumer. [250] The term vendor is also defined in the PST Act as follows: 3(1) ... (o) "vendor" means any person who, within the province and in the course of his business or in the course of continuous or successive acts: (i) sells or leases tangible personal property to consumer or user at retail sale in the province for purposes of consumption or use, and not for resale; (ii) sells or leases taxable services to user at retail sale in the province for purposes of use and not for resale; or (iii) sells tangible personal property to consumer or user to be used by the consumer or user for the purpose of promotional distribution. [251] vendor means person who sells tangible personal property to consumer or user at retail sale for the purposes of consumption and not for resale. Subsection 3(2) of the PST Act deems person licenced under the PST Act to be vendor. Section of the PST Act imposes an obligation on anyone who sells tangible personal property at retail sale to hold licence issued by the Minister. It is common ground that each of the third parties here are licenced vendors under the PST Act during the period of 1996 to 2001. [252] Subsection 5(5) of the PST Act is deeming section. That deeming section applies in circumstances where person consumes or uses tangible personal property at resale that is manufactured, processed or produced by that person. Husky has not plead ss. 5(5) in this action. [253] Husky has plead ss. 5(6). Subsection 5(6) of the PST Act states the following: 5(6) Subject to the regulations, where contractor or manufacturer enters into contract for the supply and installation of tangible personal property and during the carrying out of the contract consumes or uses tangible personal property produced, fabricated, processed, printed or imprinted by him the contractor or manufacturer shall be deemed to be consumer or user of the tangible personal property and to have purchased the tangible personal property at retail sale in the province at the time of consumption or use at value that includes the total cost of the tangible personal property together with the total cost of its production, fabrication, processing, printing or imprinting to the time of such consumption or use. [254] Subsection 5(6) is deeming provision as well. It provides for circumstances where contractor or manufacturer enters into contract for the supply and installation of tangible personal property and where, during the carrying out of that supply and install contract, the contractor consumes or uses tangible personal property that was produced or processed by the contractor. In such cases, pursuant to ss. 5(6), the contractor is deemed to be the consumer or user of the tangible personal property. Husky argues that s. 5(6) deems the third party contractors to be the consumers of the tangible personal property in the well cementing contracts. [255] In order to determine whether Husky or the third parties is user or consumer of the cementing materials, the context of the contracts between the parties must be remembered. In order to determine who is the ultimate user or consumer of the products, the factual context within which the transactions took place must be examined in relation to the legislation Has Husky Established There Was an Agreement Between Saskatchewan Finance and the Third Parties to Have Husky Pay the PST on Contracts? [256] Husky asserts that the PST was improperly charged and collected and remitted because there was no purchase and/or sale of the cement between Husky and the third party contractors. Husky asserts that the third party contractors are liable to pay PST but were charging the PST on the cement in their invoices by virtue of an arrangement which the contractors had with Saskatchewan Finance. Husky asserts that Saskatchewan Finance had this arrangement with the contractors so that the contractors avoided the need to self-assess the PST in respect of the cement. Husky asserts that such an agreement cannot form the legal basis upon which Husky must pay PST. [257] Husky asserts that Saskatchewan Finance’s correspondence to Husky of November 29, 1999 and July 23, 2002 is evidence of this agreement. The 1999 Saskatchewan Finance correspondence stated: Saskatchewan Finance has had long-standing arrangement allowing the oil industry to bill in this manner. The oil producers wanted firms (including fracturing and cementing firms) working for them to provide details of all charges on their invoices. We allowed this billing procedure, as we were advised materials were always billed at or near cost. The result of this method of billing allows firms, such as yours, to be aware of all charges that are included in the price of the job. You do not pay any additional PST by this method of billing, you have merely been shown the tax paid on items such as cement or fracturing chemicals. For these reasons, we must deny your refund request. Our auditor, Chuck Toy, will be contacting you shortly for finalize [sic] his audit of your firm. [258] Saskatchewan Finance’s 2002 correspondence to Husky said: Saskatchewan Finance has had long-standing arrangement allowing the oil industry to bill in this manner. The oil producers wanted firms (including fracturing and cementing firms) working for them to provide details of all charges on their invoices. We allowed this billing procedure, as we were advised materials were always billed at or near cost. The result of this method of billing allows firms, such as yours, to be aware of all charges that are included in the price of the job. As you are aware, Saskatchewan Finance has held meetings and is presently corresponding and with the Canadian Association of Petroleum Producers (CAPP) and the Petroleum Services Association of Canada (PSAC) to attempt to reach resolution on this matter. [259] Husky asserted that Saskatchewan Finance correspondence of November 29, 1999 and July 23, 2002 is evidence of the agreement between Saskatchewan Finance and the third parties. [260] Husky presented no direct evidence of such an agreement between Saskatchewan Finance and any cementing contractor. Saskatchewan Finance witnesses testified there was no such agreement. The third party contractors testified they knew of no such agreement. There was complete lack of direct evidence to support the assertion Husky suggested. [261] Husky argued that it was this agreement between Saskatchewan Finance and the cementing contractors that altered the real nature of the agreements such that Husky was improperly forced to pay the PST on cementing transactions. However, there was no evidence that Saskatchewan Finance and the third party contractors entered into an agreement to alter the nature of the contracts so that oil producers, such as Husky, paid the tax when they otherwise would not have been legally obligated to pay the PST. To the contrary, the evidence established that Husky determined the way in which the bids were submitted in response to the requests for bids and the way in which Husky was invoiced. [262] Saskatchewan Finance’s correspondence of November 29, 1999 and July 23, 2002, is not evidence of an agreement between Saskatchewan Finance and the third parties. Rather, these two letters indicate Saskatchewan Finance’s understanding of the business arrangements between the third parties and Husky as an oil producer. The letters establish no more than that Saskatchewan Finance acquiesced to the billing arrangements arrived at between the oil producers and cementing contractors, including Husky’s desire to construct the contracts in the manner contained in the documents and Husky’s requirement that there be breakdown of the charges between materials and services. [263] Husky has failed to prove there was an agreement between Saskatchewan Finance and the third parties. The Well Transaction Contracts a) Has Husky proved the contracts for each well transaction? [264] The Government of Saskatchewan argues that Husky has failed to prove the contracts or documents that apply to all the well cementing transactions during the period for which Husky sues for the return of the PST. The Government of Saskatchewan argues that Husky has failed to meet the onus of proving the contracts in relation to its claim and, as such, the claim must fail. [265] Husky has not produced or proven all of the documents that record and reflect the transaction for each well for which refund of PST is claimed during the period of this lawsuit. Rather, Husky has filed representative documents. There are samples from various transactions, including some wells in Alberta (which are not applicable to this Saskatchewan claim). There was no explanation from Husky as to why the documents that reflect each transaction for each well or campaign of wells were not filed. [266] Husky argued that the contracts were the same for each well regardless of the documents executed in relation to particular well. Mr. Ellsworth testified that, in Husky’s view, an MSA applied to each well transaction, whether an MSA was signed or not. This was contrary to the evidence. The evidence established that in some instances, third parties refused to execute an MSA. [267] Husky failed to establish that there was Master Services Agreement in place for all of the transactions entered into with each third party between 1996 to 2001. [268] The evidence indicates there were two Master Services Agreements tendered into evidence between Husky and Trican. The first agreement, which is Exhibit PT-2 dated January 1, 1998 was for one year for the period to December 31, 1998. This particular Master Services Agreement had time limit, and it was also project specific, that is, it was specific to group of wells Husky contemplated drilling for heavy oil and gas. There was no Master Services Agreement with Trican prior to January 1, 1998, although Trican was providing invoices to Husky prior to January 1, 1998. After the January 1, 1998 MSA (Exhibit PT-2), there was no evidence of an MSA between Trican and Husky until May 15, 2000. further Master Services Agreement (Exhibit PT-13) was entered into on May 15, 2000 and this Master Services Agreement had no termination date. However, that Master Services Agreement was restricted to the Lloydminster Completions Project. This would have included well abandonment, remedial squeeze and well servicing work. It did not include primary cementing according to the evidence of Mr. Ellsworth. [269] There is no evidence that there was Master Services Agreement in effect with Trican from 1996 to January 1, 1998, or from January 1, 1999 until May 15, 2000. There were many transactions between January 1, 1999 and May 15, 2000, but no applicable Master Services Agreement. It appears that there was approximately 113 invoices during that period, so one would infer in that time period there were at least 113 well transactions that were contracted with Trican where no MSA was in place. [270] Of the 369 transactions with Trican during the period of the claim, only 131 were covered by Master Services Agreement. In 1996, there were 121 invoices which were the subject of the claim but there was no Master Services Agreement in effect. In 1997, there were four invoices but no Master Services Agreement in effect. In the period of 1998, there were 121 invoices and there was Master Services Agreement in effect. In 1999, there were 112 invoices but no Master Services Agreement in effect. Between January and May 14, 2000, there was one invoice and no Master Services Agreement in effect. Between May 15 and December 31, 2000, there were four invoices and Master Services Agreement, but limited to Lloydminster completions. In 2001, there were six invoices limited to Lloydminster completions. [271] It is clear that the records of Husky indicate that the majority of transactions between Husky and Trican were not covered by any Master Services Agreement. [272] Likewise, with respect to Sanjel, there was only one Master Services Agreement in place between Sanjel and Husky during the period of this claim. That was Master Services Agreement entered into between the two parties on May 15, 2000. This was an agreement signed by the Husky Lloydminster offices and was limited to completion work. There was no other Master Services Agreement between Husky and Sanjel. [273] Husky did not produce evidence to show what specific invoices from Sanjel related to completions work that would be covered by the May 15, 2000 Master Services Agreement, as opposed to primary cementing work. The evidence did not establish how many of the invoices from Sanjel were covered by the Master Services Agreement. [274] Likewise, there was only one Master Services Agreement in place with Nowsco (BJ Services) (Plaintiff Third Party Exhibit 21) and it had no termination date. The Master Services Agreement with Nowsco had no Schedule attached which described the contracts that it applied to. [275] It is clear Husky did not enter into evidence all of the Requests for Quotations. It is also clear that Husky did not identify which invoices related to which RFQs. Nor did Husky identify which invoices related to purchase orders. [276] Husky did not present the documents for each well, nor did it identify the contracts for each well. Husky failed to prove the request for bids for each well. It failed to identify all the invoices that related to particular RFQs. [277] It is established that Husky paid PST on the invoices. However, Husky has failed to identify the contracts that apply to each invoice. Husky failed to prove all of the successful bids for each well. There are no bid documents for 1996 and only one from 1997. Husky has failed to produce evidence to establish what the contracts were for each well and/or transaction. In short, Husky seeks refund without proving the well cementing contracts for each well and without establishing that the terms of the transactions were the same for each well. [278] The absence of evidence regarding agreements, invoices and other documents is troublesome. However, it does not raise an adverse inference against Husky that other documents reflect substantially different agreements. In the circumstances, will determine the nature of the agreements on the basis of the documents and evidence presently before the court. b) What can be determined about the nature of the contracts in relation to the evidence produced? [279] As stated, Husky has not proved the contracts for each well or campaign of wells. Evidence was presented with respect to some of the well cementing transactions between Husky and the third parties. If one assumes those documents represent the terms of the contracts between the parties, it is possible to glean from that evidence the nature of the agreements between the parties. [280] What is apparent from the evidence is that the agreements between Husky and the third parties for well cementing were not contained in single contract. There were number of documents that must be read together in order for the nature of the well cementing transactions to be determined. [281] In this case, Husky called no evidence about the intentions of the parties at the time of the parties entering into the agreements. Mr. Ellsworth and the third parties did testify that it was Husky who dictated the structure and terms of the agreements. It was Mr. Ellsworth’s evidence that Husky did this to control costs. [282] It appears clear that in relation to every agreement between Husky and the third parties, request for bid was sent out by Husky. Husky demanded in its request for bids that the contractors provide considerable detail in the bids to be submitted by the cementing contractors. It is clear that Husky required the bids submitted by the contractors to include the following items and information: breakdown of bid charges, including price per tonne of cement FOB location, which was to be constant throughout the area of the wells; bid price for all additives to the cement and blending charges; the price for abandonments and the list price per tonne of right angle set cement; price for fixed set-up charges which, again, was to be constant throughout the area regardless of the depth and pumping time included; fixed mileage rate, which was independent of the number of vehicles used; fixed prices for plug charges; and additional charges other than those specified in the additional charges section. Those additional charges could include the number of free waiting hours or waiting time and additional pumping rates. Husky also required the contractors, in their bid, to provide an alternate cement blend, and to address other issues the contractor thought appropriate. Husky required contractors to set PST out separately in the bid document. Again, this is relevant because Husky contemplated the sale of goods when it referenced requirement of PST to be in addition. [283] In requesting price to be quoted for FOB (freight on board location), Husky was seeking the contractor to bid price per tonne of the dry cement blend delivered to the well site. This was required in every request for bids. The evidence was clear that the cementing contractors bid the contract on the basis of price for the dry cement blend, which included the contractors blending and hauling charges, in this one price. This practice made comparing of the bids easier for Husky. Husky never requested bid for the price of slurry. [284] Husky never sought the bid for the completed installation of the well bore. It was because of Husky’s requirement that the bids were prepared this way. It is of interest that the request for bid and the bids reflected the price book structure of the third party contractors. [285] It is clear from the evidence that the first step in the process was this request for bid from Husky. The same requirements were demanded by Husky, whether Husky used an RFQ or not. Husky has failed to prove all of the RFQs that were involved in the contracts between the parties in relation to this claim. What can be gleaned from the evidence is that Husky solicited bids for well cementing services from the contractors and invited bid proposals for particular project. Husky advised that the bids from the cementing contractors would be evaluated on several bases: on financial cost benefit to Husky; on the bidder’s ability to provide the service to Husky; on the bidder’s ability to deliver product and services in timely manner; and, on the types of services that the bidder could provide. This was the same whether an RFQ was used or not. [286] In the instances where there was an RFQ, the RFQ sometimes indicated that the successful bidder would enter further legal agreement with Husky. The RFQ stated that the legal agreement would be prepared by Husky and would embody the terms of the RFQ, including the terms and conditions contained in the RFQ, and any subsequent negotiations and clarification. Despite the fact that some RFQs included this clause, such further legal agreement (an MSA) was not always executed between the parties. [287] In other RFQs, the RFQ stated that where there was further legal agreement, such agreement would govern, but those RFQs did not require such an agreement. [288] RFQs were entered into evidence for 1998 to 2001, although as stated, it appears not all RFQs that were used for this period for well cementing were entered into evidence. [289] In the instances where an RFQ was issued, all the RFQs made reference to goods being provided to Husky by the contractors. While will discuss this later, it is of note that the parties were using “sale of good” terminology in the RFQs. The RFQs referred to the bidder’s ability to deliver products and services. The RFQs refer to “delivery” which is consistent with the delivery of product. The RFQs, where used, attached spreadsheet for bidders to complete. This required the contractors to separate the cost for services from the cost for cement and additives. [290] The RFQ from February 26, 1999 (Exhibit D11) used different format than the RFQs in evidence. This RFQ was issued by the Lloydminster office. This RFQ contained references to goods, both under the Compliance, Warranties, Termination, Force Majeure, Price and Payment, Forms and the Terms and Conditions sections. In the RFQ at Exhibit D11, there are the following references to goods being supplied by the contractors: 1. Entire Agreement .. The shipment of any goods by the Vendor ... shall constitute an acceptance of this Agreement ... Compliance Vendor warrants that all goods and services provided hereunder shall have been produced, sold, delivered and furnished in strict compliance with all applicable laws ... 4. Warranties and Guarantees Vendor warrants it will have unfettered right to sell the goods and services at the time the title is to pass; Husky will have quiet possession of the goods and services free of any charge or encumbrance; all goods and services to be furnished ... the goods and services will be fit and sufficient for the purpose intended not withstanding [sic] that the goods and services or any of them or any part thereof are described in patent... 9. Termination at Option of Husky ...Upon termination by Husky under this Clause, Husky shall pay to Vendor the price of all goods and services which have been provided in accordance with this Agreement ... 10. Termination for Default of Vendor If Vendor refuses or fails to make deliveries of the goods and services specified in this Agreement ... 11. Force Majeure If, for reasons beyond its reasonable control, Husky is prevented from proceeding with the project for which the goods and services has been procured ... 15. Price and Payment Unless otherwise expressly stated, the price herein specified shall include all taxes, duties, charges and services of any kind which either party is required to pay with respect to the state of the goods and services covered by this Agreement. The time for payment of invoices or for accepting any discounts offered, shall run from the date correct invoices are received by Husky. ... Forms The parties acknowledge that invoices and other documentation of the Vendor may contain various contractual terms relating to goods and services provided by the [V]endor... [Emphasis added] In addition, the RFQ indicated that the third party contractor would show PST as separate item on invoices: 16. Taxes and Duties All invoices submitted by [V]endor shall show as separate item applicable Duty and Goods and Services Tax (GST) and Sales Tax ... [emphasis added]. [291] Mr. Ellsworth was unable to provide any evidence about the Lloydminster practices or contracts. There was no evidence as to which contracts the Lloydminster office had in place (that is, whether they only utilized an Exhibit D11 type of RFQ or utilized other types of requests) in relation to wells cemented. There was no evidence as to how many other RFQs took the form of Exhibit D11. The only evidence is Exhibit D11 which characterizes the sale and delivery of goods. [292] Most of the RFQs in evidence included “Year 2000 Warranty” clause that clearly relates to the sale of goods. Exhibits PT132, PT133, PT 139, D13, D21 and D14 include the following Year 2000 Warranty: 1.7 Year 2000 Warranty Vendor represents and warrants to Husky, and confirms Husky is relying on the accuracy of each such representation and warranty in connection with the purchase of the Goods, and any and all Goods shall by Y2K Compliant at all times during the term of this Agreement and thereafter. Goods shall be deemed to be “Y2K Compliant” if the performance, accuracy and functionality of the Goods, or any part or component of the Goods, will not be adversely affected by the use of the Goods after September 8, 1999, nor by the input into the Goods or use of any dates by the Goods which bear date which falls after September 8, 1999 ... [emphasis added] [293] The RFQs identified and contemplated goods being provided by the third parties to Husky. The RFQs are Husky documents. Husky requested the contractor to bid the contract by identifying cost for goods and services. [294] The RFQs with the Year 2000 Warranty clause clearly contemplated Husky purchasing goods from the third parties. Only three RFQs were entered into evidence by Husky which did not contain the Year 2000 Warranty clause. Exhibit D7 (which was letter to Nowsco for remediation work), Exhibit D15 (which was the same document as Exhibit D28; PT 144) and Exhibit PT 147. These did not contain the Year 2000 Warranty clause. [295] All of the RFQs referred to price for cement. The RFQs with the Year 2000 Warranty clause refers to Husky purchasing goods from the third parties. [296] The RFQs entered into evidence all made reference to either the sale or purchase of goods or materials. The RFQs referred to bid for cement based on price per tonne, FOB location; the RFQ spoke of the third parties delivering product; in the Terms and Conditions section, the RFQ language included reference to “shipment of goods”, “right to sell goods” and “warranty of goods”. In the RFQs with Year 2000 Warranty, the language included “purchase of goods”. [297] All bids by contractors, which were prepared in response to Husky’s request for bids, were broken down between charge for materials (cement with additives and other materials) and service charges. The bids contained variable charges, which were the charges for the cement. The bids contained fixed charges, which were for the set-up charge. It is clear that Husky only bought cement from the contractors when it also engaged services from an individual contractor. [298] As stated earlier, no bid documents were proven for 1996. One was proven for 1997 and it contained price per tonne price for dry cement. [299] As stated, submissions of bid to Husky by the third parties were prepared in response to the request for the bid. The contractor’s bid documents were drafted in manner to reflect the information requested by Husky. The bid documents in evidence show that the bids itemized the amounts for the cement and additives, and the services. It is clear that in preparing bid, the cementing contractors would assess the relevant data and produce their technical program for the wells. The technical program outlined how much cement the contractors estimated would be required for the particular job. The preparation of the bid usually involved bidding the contract on the basis of discounted price from the contractor’s price book. The contractor’s price book contained proprietary price for cement and additives. Again, the bid was broken down between services to be provided, which was static or fixed price cost, and the materials to be provided, which was variable cost. [300] It is clear that when the cementing contractors made bid, Husky was not able to accept only part of the bid. That is, they were not able to accept the bid for services, but not accept the bid for cement supplied. Likewise, Husky could not accept the bid for cement supplied without accepting the bid for services. The third party cementing contractors only bid the contract on the basis that the bid, as whole, was accepted or rejected. [301] It is also clear that the submission of the bid or pricing to Husky by the third parties did not include an amount for PST. The PST was always contemplated to be in addition to the prices quoted, and only charged on the materials provided. Again, the parties appear to have contemplated the sale of property by reference to the application of PST. [302] Husky then analyzed the bids. Once the bids were analyzed, Husky awarded the contract to the chosen well cementing contracting company. [303] After the awarding of the contract, in some cases, services contract was prepared by Husky and the parties signed it. These contracts, as stated, were referred to as the Master Services Agreement (MSA). In other cases, an MSA may have already been in place between the parties. In some situations, an MSA was in place for period of distinct time. If so, and if the MSA related to the area and type of work undertaken, the MSA formed part of the written contract. In yet other cases, there were no MSAs in place. [304] Husky’s witness, Mr. Ellsworth, suggested that the MSA was the controlling contractual document with respect to all well cementing contracts, regardless of whether there was signed MSA in place. Of course, that is not the case. The MSAs only applied if one was signed and the well cementing contract took place under such an MSA. [305] Husky took the position that the MSA was the controlling document for each transaction and was service contract. Husky argues this is evidence that the well cementing contracts did not include term for the sale of materials. However, this is not true reflection of the commercial relationship between Husky and the third parties. This characterization does not reflect the commercial realities of the contracts in evidence nor even the evidence of Husky’s witness, William Ellsworth. [306] Husky has not established that an MSA was in place throughout the entirety of the claim period with each of the third party contractors. As well, an MSA was only relevant when work had been awarded by Husky to particular third party cementing contractor and an MSA had been signed between the parties for the period of time in which the well cementing was undertaken, and for the work undertaken. An executed MSA did not obligate Husky to award work to the cementing contractor. As well, nothing in an MSA required the third party cementing contractors to provide work to Husky. [307] So what has been established is that in each and every case, when work was undertaken, Husky issued request for bid or an RFQ and in response, the third party cementing contractors submitted bid. Thereafter, on the basis of that bid, Husky would award the cementing contracts. It is only when the work was awarded to the third party cementing contractor that the RFQ, the bid and the acceptance of the bid became Schedule to the MSA, if there was an applicable MSA. It was at that point that an MSA, if one was executed between the parties and related to the particular well cementing program, became operative as part of the well cementing contract. [308] In instances where no MSA was in place, but where the third party cementing contractor’s bid was accepted by Husky, field work order was prepared and the field work order became part of the agreement between the parties. [309] Where there were MSAs in place, Husky prepared the MSA. The MSA was Husky’s document. As stated, in some cases, the Master Services Agreement was in place for period of time and so such Master Services Agreement would not have been re-executed by the parties if Husky awarded further contract for the cementing of further wells to the third party contractor. [310] If no MSA was executed between the parties, Husky continued to contract with the third parties. By way of example, on April 25, 2001, Husky sent Master Services Agreement to BJ Services for execution. In that case, BJ Services refused to execute the agreement. BJ Services, which was an American owned company, took objection to the Master Services Agreement and did not sign such agreements. However, Husky continued to work with BJ Services and contract with them for well cementing despite BJ’s refusal to execute an MSA. Plaintiff Third Party Exhibit 72 was an example of contract not signed by BJ Services. [311] In cases where there was an MSA, the MSA itself referenced that the third parties were to supply services, materials and supplies. The MSA sought warranty from the third party contractors on the goods provided under the agreement. The MSA, where one was used, attached the RFQ and bid by the contractor to the MSA and made the RFQ bid part of the agreement. The RFQ and the bid, in every instance for every well, set out price to be paid by Husky for the materials provided by the contractor. [312] After there was an award of bid, whether or not an MSA existed, Husky always prepared detailed drilling program, which included the well cementing programs as prepared by the contractor in their bid. The detailed well cementing program contained the detailed procedures and reporting requirements required for the well construction project. This drilling document was prepared by Husky. As stated, it set out in the document the detailed cementing program from the third party contractor. The document included the number of tonnes of surface cement, tail cement, surface casing, and other materials that were to be supplied. It also included the FOB price for the cement delivered to the location, based on per tonne of cement. The document indicated that all quantities of cement were estimated and subject to change, depending on the actual amounts used. This drilling program also provided instructions for how the cementing was to be done. The drilling program was Husky’s program. Husky designed the well, the drilling and controlled the cementing process. [313] The other document that was always prepared in respect of each well was field services ticket or service order. The third party cementing contractors always prepared field service ticket. Examples of such field service tickets are at Plaintiff Third Party Exhibit and Plaintiff Third Party Exhibit 121. Field services tickets contained the prices, services charges, travel charges, cementing additives, chemicals and pricing used in the cementing of well. It also included an extra charge for PST on the document. The service ticket was prepared by the contractors in the field at the well site. It itemized the actual materials used in the job. The field service ticket was produced to Husky and the Husky representative signed it at the well site. The signature of Husky stated “the signature confirms that have read and complied with all of the terms and conditions as noted on the reverse of this document.” The MSA documents recognized the use of service tickets and in fact required the contractor to provide field ticket to Husky as verification for invoices, even where an MSA was in place. One of the purposes of the field ticket was to identify and verify for the parties the amount of cement delivered to the well site, which was used later for verification of invoice amounts. [314] On the reverse of the field ticket was “stimulation remedial cementing services report”. This was document of the events and recording of what was done by the third party contractor at the well site. The cementing service report was started to be prepared by the contractor before the job started. It was completed by the contractor at the end of the job, at the well site. The size of the well bore, the volume of chemicals, when the equipment arrived, and when the job was finished, were all recorded on this service ticket. The tickets for the period of 1994 to 1998, in relation to Sanjel, contained the following on the back of the service ticket: CONTRACT CONDITIONS (This order must be signed before work is commenced). To Sanjel Cementers Ltd. The undersigned, as customer, has read the instructions set forth above and agrees that they are correct in all respects. The above job shall be under the general supervision and control of the owner, operator, or his agent, whose signature appears below; however, it is expressly understood and agreed that Sanjel Cementers Ltd., will perform the work as an independent contractor and not as employees of the owner, operator, or his agent. It is understood and agreed that because of uncertain and/or unknown conditions existing in all wells, Sanjel Cementers Ltd., does not guarantee the results of the work performed under this agreement. Customer agrees that should any of the Sanjel Cementers Ltd., equipment be lost or destroyed, customer will use all reasonable efforts to recover the said equipment or reimburse Sanjel Cementers Ltd., for the reasonable value thereof. It is expressly understood and agreed that Sanjel Cementers Ltd., will not be bound by any other agreement not herein contained, and no agent or representative employed directly or indirectly by Sanjel Cementers Ltd., has authority to alter or amend the terms of this agreement. have read, understood and accept the foregoing conditions and represent that am authorized to sign this order as the agent of the owner or contractor. [315] All of the parties agreed that Husky had complete control of the well cementing. The field ticket confirmed that Husky controlled the well cementing. [316] Later, when Sanjel utilized 2000 ticket, the following was contained on the back of the service ticket: ... Warranties Limitation of Liability Sanjel warrants only title to the product, supplies and materials and that the same are free from defects in workmanship and materials. THERE ARE NO WARRANTIES EXPRESSED OR IMPLIED OF MERCHANTABILITY, FITNESS OR OTHERWISE WHICH EXTENDS BEYOND THOSE STATED HEREIN. Our liability and the Customer’s exclusive remedy in any cause of action (whether in contract, tort, breach of warranty or otherwise) arising out of the sale or use of any products, supplies or materials is limited to the cost of such products or services with no punitive or consequential damages. ... It is expressly understood and agreed that Sanjel will not be bound by any other agreement not herein contained, and no agent or representative employed directly or indirectly by Sanjel has authority to alter or amend the terms of this agreement. (p. 39, Plaintiff Third Party Exhibit 120) [emphasis added] [317] After the well completion, the third parties invoiced Husky. The invoices contained price for cement based on price per tonne FOB. The PST amount was separately indicated on the invoice. Husky paid the PST based on the invoiced amount. [318] The determination of which party is liable for the PST must be based on the well transaction documents and what was undertaken between the parties. The factual context within which the transactions took place between Husky and each of the third parties must guide the analysis. [319] The request for bids, RFQs, the bid proposals, the MSAs, where they existed, and purchase orders field tickets, where no MSA existed, must be read together as forming the well cementing contract. Each and every one of those documents reflects breakdown of services and materials during the period in question. In fact, Husky requested that the contractor separate the cost of services from the cost of materials in its bid proposals sent in response to the request for quotation. Husky requested the contractor separate the costs of services. The invoices were to mirror the accepted bid proposal. [320] It is clear that Husky wished to have the bids broken down between services and material, because the services were billed by depth and the materials were billed by volume. In any particular well, the exact volume and depth of the well bore could not be determined until the time of drilling. Requesting that the bids be submitted in the form that Husky sought allowed Husky to compare its bids across the various companies bidding for the job. [321] The evidence does establish the following: 1. With respect to every contract between the third party cementing contractors and Husky, request for work from Husky was issued. In certain instances, the request for work was through formal RFQ document, some of which we have seen in the evidence. However, at other times, the request for work came informally, through Husky representatives contacting the sales person of the third party contractors directly. It is also clear that in each and every case, the request for work asked the third party cementing contractors to provide bid for the services to be provided and bid for the materials to be used, including cement and additives. In every case, PST was to be in addition to the price bid for the materials provided. 2. Each of the RFQ documents referred to materials being supplied. The RFQ included reference to the shipment of goods by the third parties, the third parties’ right to sell goods to Husky and the third parties’ warranty of goods. The majority of RFQ documents in evidence included the Year 2000 Warranty clause which referred to the “purchase” of goods by Husky. 3. It is also clear that the third party contractors provided submission of bid or submission of pricing for materials to Husky. price per tonne FOB of cement was part of the bid. In each of those submissions or bids, prices for the materials did not include PST. This was contemplated in each and every case to be in addition to the prices quoted for the materials. 4. In some instances, there was an MSA in place. The MSAs were titled Service Agreements but they referred to the acquisition of “materials” by Husky from the third parties. 5. Husky designed the well cementing program and had control of the well cementing process. 6. After the well was complete, Husky signed the service ticket. The service ticket contained all of the pricing for the amount of materials supplied to Husky. The ticket was signed by Husky, and then it was sent to the third party contractor’s head office to produce final invoice. The field service ticket contained information as to the actual materials used in the job. The Husky representative signed the document. The field ticket was reflection of what happened at the well site. Where no MSA was in place, the field ticket might be considered part of the contract. 7. After the field service ticket went back to the third party contractor, the third party contractor prepared an invoice. On the invoices of all third party contractors, the charges were itemized by charges for service and charges for materials that were associated with particular job. 8. All third party contractors and Husky indicated that in the entire time covered by this lawsuit, the request for quotations, the bid, the service ticket and the invoice all had breakdown of services and materials and all added PST to the materials used in the cementing. 9. Throughout the term of this lawsuit, the third parties collected PST on all of the materials it supplied to Husky and remitted that PST to the Saskatchewan Government. Throughout the time, the third parties always invoiced and charged PST and Husky paid the PST. [322] The evidence established that the transactions were structured as they were for numerous reasons, including that Husky wanted to maintain control of the construction of the wells and wanted to pay the least cost possible in relation to the transactions. [323] Husky asserts that the contracts entered into between Husky and the third party contractors were service contracts. They assert that the contracts are clear and unambiguous and did not provide for the distinct sale of both services and tangible personal property. Husky relies primarily on the MSAs to assert this position. Husky also asserts that it was not the intention of the parties when entering into the contract that it was contract for goods and services. [324] Husky argues that even if the contracts between itself and the contractors are not clear or unambiguous, the evidence discloses that the conduct and intention of the parties was consistent with the finding that these were contracts for services and not separate contracts for services and the sale of tangible personal property. Husky argues that structuring the contracts as separate sale of cement would have had no business purpose and would have caused Husky to pay more PST than would have been the case if the contractors self-assessed PST in respect of the cement. [325] However, while Husky makes that argument, the evidence establishes Husky sought the bid to include price for the service and price for the materials so that Husky would pay less for the contract. The contractors bid the contract based on price for services and price for materials, and PST was added on to the price of the materials. Third party contractors bid the contract that way, submitted their invoice that way and Husky paid the invoice including the PST throughout the period of time covered by this claim as they directed. [326] The request for quotations and bids referred to the acquisition of materials by Husky. The majority of RFQs entered into evidence refer to the purchase of goods by Husky. The MSAs also have features applicable to the sale of materials. The RFQs, the bids, the MSA and/or field tickets where applicable, form the contracts between the parties. Those contracts must be interpreted in relation to the legislation. Is Husky the user or consumer of cementing materials under the legislation? [327] It is clear that ss. 5(1) and 5(2) of the PST Act impose the obligation to pay tax on the user or consumer of tangible personal property purchased at retail sale in Saskatchewan. The starting point, then, must be what is the definition of sale pursuant to the PST Act. Section 3(1)(i) defines sale for the purposes of the PST Act as any transfer, exchange, conditional or otherwise, in any manner or any means whatsoever of tangible personal property for consideration. [328] It must be remembered that parties are free to structure their contracts in any manner they wish. In Shell Canada Ltd. v. Canada, 1999 CanLII 647 (SCC), [1999] S.C.R. 622, 178 D.L.R. (4th) 26, the Supreme Court of Canada noted that even if the structure of the transaction was determined by desire to minimize the amount of tax payable, the courts must be sensitive to the economic realities of particular transaction rather than being bound to what first appears to be its legal form. At paras. 39, 40 and 45, McLachlin J. (as she then was) said the following: 39 This Court has repeatedly held that courts must be sensitive to the economic realities of particular transaction, rather than being bound to what first appears to be its legal form: .... But there are at least two caveats to this rule. First, this Court has never held that the economic realities of situation can be used to recharacterize taxpayer's bona fide legal relationships. To the contrary, we have held that, absent specific provision of the Act to the contrary or finding that they are sham, the taxpayer's legal relationships must be respected in tax cases. Recharacterization is only permissible if the label attached by the taxpayer to the particular transaction does not properly reflect its actual legal effect: ... 40 Second, it is well established in this Court's tax jurisprudence that searching inquiry for either the "economic realities" of particular transaction or the general object and spirit of the provision at issue can never supplant court's duty to apply an unambiguous provision of the Act to taxpayer's transaction. Where the provision at issue is clear and unambiguous, its terms must simply be applied: ... 45 However, this Court has made it clear in more recent decisions that, absent specific provision to the contrary, it is not the courts' role to prevent taxpayers from relying on the sophisticated structure of their transactions, arranged in such way that the particular provisions of the Act are met, on the basis that it would be inequitable to those taxpayers who have not chosen to structure their transactions that way. This issue was specifically addressed by this Court in Duha Printers (Western) Ltd. v. Canada, 1998 CanLII 827 (SCC), [1998] S.C.R. 795, at para. 88, per Iacobucci J. See also Neuman v. M.N.R., 1998 CanLII 826 (SCC), [1998] S.C.R. 770, at para. 63, per Iacobucci J. The courts' role is to interpret and apply the Act as it was adopted by Parliament. Obiter statements in earlier cases that might be said to support broader and less certain interpretive principle have therefore been overtaken by our developing tax jurisprudence. Unless the Act provides otherwise, taxpayer is entitled to be taxed based on what it actually did, not based on what it could have done, and certainly not based on what less sophisticated taxpayer might have done. [329] Likewise, the jurisprudence confirms that parties to transaction can construct an agreement for the acquisition of component materials and for the provision of services in the same contract. In Burrard Yarrows Corp. v. British Columbia (Minister of Finance), (1984) 1984 CanLII 779 (BC CA), 55 B.C.L.R. 178, [1984] B.C.J. No. 15 (QL) (B.C.C.A.), the following was said at para. 28: 28 agree with the appellant's contention that the parties to the contract intended and provided in the document for, and indeed implemented, two aspect agreement: one for the acquisition of component materials in the name of Norsk by Burrard as its agent and the other for the provision by Burrard of fabrication services. Consequently the barges as they emerged were the continuing property of Norsk and the delivery of the finished vessels against payment of the agreed cost, not being transfer of property, did not constitute sale of tangible personal property within the meaning of the Act. [330] One of the issues to be resolved is whether the nature of the contracts establish “sale” of tangible personal property. Canadian jurisprudence has interpreted the word sale in two ways: it has been limited to its legal meaning under commercial sale of goods law or it has been given broader meaning which includes any transfer of property for consideration. [331] The Supreme Court of Canada, in the Will-Kare Paving Contracting Ltd. v. Canada, 2000 SCC 36 (CanLII), [2000] S.C.R. 915 case, which was decided in the context of the Income Tax Act, R.S.C., 1985, c. (5th Supp.)], is instructive on the interpretation of the term sale with respect to taxing statutes. In Will-Kare, the Supreme Court of Canada noted that tax law takes business transactions as they find them. In Will-Kare, the taxpayer operated paving business. In order to obtain asphalt to be used in such business at lower rates, the tax payer constructed its own asphalt plant. Will-Kare claimed various income tax deductions on the basis that the plant was used for the manufacturing or processing of goods for sale. The Supreme Court of Canada denied the claim for manufacturing and processing deductions under the Income Tax Act. In doing so, it examined the lines of authority on whether activities constituted manufacturing and processing of goods for sale. [332] One of the lines of authority considered by the Supreme Court in Will-Kare was that arising out of the decisions in R. v. Nowsco Well Service Ltd., (1990) 90 D.T.C. 6312 (F.C.A.) and R. v. Halliburton Services Ltd., 85 D.T.C. 5336 (F.C.T.D.), aff'd 90 D.T.C. 6320 (F.C.A.). The operation of the taxpayers in Nowsco and Halliburton were almost identical to the business carried on by the third party contractors in the case before me. In fact, BJ Services is the successor corporation to Nowsco. In those cases, the Federal Court of Appeal determined that the well cementing qualified for tax treatment as manufacturing and processing. The court determined good was being produced for sale applying the broad interpretation of the word sale. The provision of service in conjunction with supply of manufactured good was considered sale of goods in the context of the Income Tax Act. It is noted that this line of authority interpreted the term sale to include any transfer of property for consideration. Justice Urie, in Nowsco, said the following at p. 6319: am of the opinion that common‑sense, realistic and business‑like appreciation of all of the foregoing indicates that the Respondent does not enter into pure service contracts, but, rather processes goods to the operator/customer's specification which it utilizes to perform the specialized services required of it by its customer. It does so by means of what the Trial Judge described as 'mobile factory' which utilizes the various materials, mixtures and blends produced for delivery to the well bore for the purposes required by the customer. Contrary to the argument of counsel for the Respondent, believe that determining the particular time at which and where title to the goods passes, is of little importance, on the facts of this case, in the determination of the relationship between the parties. However, what is of some significance, think, is that since the products furnished are produced to the particular specifications of the operator/ customer and must be paid for by it whether completely used or not (subject to some limited contractual exceptions), it may well be that title passes when the mixing and blending is effected. At whatever point the transfer is effected, adopting the modern principle of statutory interpretations that 'the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, and the intention of Parliament'..., am of the opinion that the processing activities of the Respondent fall within the meaning of processing of goods for sale in paragraph 125.1(3)(a) of the Act. [333] The other line of authority considered by the Supreme Court in Will-Kare, was the approach taken in R. v. Crown Tire Service Ltd., [1984] F.C. 219 (F.C.T.D.). In that line of authorities, the Court defined the scope of the manufacturing and processing incentives by reference to sale of goods law. Justice Strayer, in Crown Tire, concluded that the tread used to repair tire casings was supplied through contract for work and materials and not for sale of goods. The Court found that the customer’s ownership of the tire casing throughout the contract was most important factor in characterizing the contract as contract for work and materials. [334] The Supreme Court, in Will-Kare, supra, ultimately adopted the reasoning in the Crown Tire line. It is perhaps true as submitted in Will-Kare and is noted in Halliburton, supra, at p. 5338, that the use of sale of goods law sometimes yields the anomalous result that the provision of services in connection with manufactured and processed goods will disqualify property that, but for the services, would qualify for the incentives. [335] Will-Kare, is an important decision for the proper interpretation of the word “sale” in the context of the Income Tax Act. However, the Income Tax Act, unlike the PST Act, does not define the term sale. The Supreme Court adopted the meaning of “sale” under sale of goods law where there was no legislative definition. Under the PST Act, there is definition of sale: the definition of “sale” in the PST Act is extremely broad and is not restricted to the commercial law meaning as taken in Will-Kare. [336] Again, the starting point, then, must be what is the definition of sale pursuant to the PST Act. Section 3(1)(i) defines sale for the purposes of the PST Act as “any transfer, exchange, barter or lease, conditional or otherwise, in any manner or any means whatsoever, of tangible personal property for consideration”. [337] One must also contrast the definition of “sale” under the PST Act with the definition of “sale” under The Sale of Goods Act, R.S.S. 1978, c. S-1. It is clear that the scope of the definition of sale under the PST Act is much broader than it is under The Sale of Goods Act. This definition under The Sale of Goods Act imposes limitations that do not exist in the application of the PST Act. sale under The Sale of Goods Act says that an agreement to sell only becomes sale when the time elapses or the conditions are fulfilled, subject to which the property or interest in the goods is transferred. However, the definition of sale under the PST Act includes any “transfer, conditional or otherwise”, such that sale may take place before the conditions are fulfilled. [338] Likewise, there is difference in the definition of sale between the PST Act and the Income Tax Act. As stated, the Supreme Court of Canada, in Will-Kare, supra, the term sale was not defined in the Income Tax Act. Therefore, one must be cognizant of the definition of sale under the PST Act. The definition of sale in Will-Kare is not the same as that in this case before me. sale under the PST Act includes an agreement to sell, whether absolute or conditional. There is no other condition that the agreement to sell has to meet. There is no requirement in the PST Act as to when title passes or how it passes between the parties. There is no requirement in the PST Act that title to the property pass before the PST is due and owing. The definition of sale under the PST Act is not limited by any reference to the time or location of the sale. There is no such express reference in the definition. [339] Husky argues that it must be determined when the time of sale at the well site happens, but the PST Act does not require this fact to be identified. Having said that, the contractual terms of the well cementing agreement refer to the price of cement FOB so the contracts themselves identify the time of the transfer of the materials. [340] The meaning of the term FOB location was discussed by the British Columbia Court of Appeal in Re Grainex Canada Ltd., 1987 CanLII 2679 (BC CA), [1987] W.W.R. 385, 34 D.L.R. (4th) 646 (B.C.C.A.). The British Columbia case said the following: ... Moreover, customary international usage of the "F.O.B." term contemplates its use in the sense of "F.O.B. port of shipment" ... Used that way it indicates that property and risk pass at the ship's rail upon loading. As used by Canbra and Grainex, the term meant that property passed upon the arrival of laden railcars at their destination. The "F.O.B. destination" usage was accepted as conveying that meaning in Beaver Specialty Ltd. v. Donald H. Bain Ltd., 1973 CanLII 29 (SCC), [1974] S.C.R. 903, ... In that case, the Supreme Court found that FOB location meant that title to the property in the goods passed upon the arrival of the product at its destination. [341] G.H.L. Friedman, Sale of Goods in Canada, 6th ed. (Toronto:Carswell, 2013) discusses the use of the term FOB at p. 137: Contracts which are f.o.b. are different. Delivery of documents will not suffice. In such transactions the seller undertakes that the goods will be shipped “free on board”. The goods must arrive at the place of intended delivery before delivery is complete. Hence, if delivery to such place is impossible for causes outside the control of the seller the contract may be frustrated and the seller immune from liability. [citations omitted] Friedman notes that contracts which are FOB are different from those without that reference. [342] Husky required the materials/cement to be priced FOB location. Use of that terminology arguably meant that title to the materials passed to Husky when they reached the well site. [343] The use of the terminology FOB location suggests the sale of goods. It suggests that the subject matter being referred to in the transaction is the sale of cement and that the property and the product transfers to Husky when it reaches the location. [344] The parties to these transactions are sophisticated parties. The evidence established that Husky is sophisticated corporation which pays attention to cost controls. Husky has legal department and tax department. It was Husky that utilized the terminology FOB, which terminology contemplates sale of goods. [345] The evidence indicates that all of the indicia of sale are present. The tangible personal property is the dry cement and additives. The price for the dry cement delivered FOB is the consideration. The sale appears to be conditional sale; that is, conditional on the cement being pumped into the well bore. [346] The documents refer and reflect sale of goods. Husky, not the third parties, was the builder of the wells. Husky controlled all aspects of the well construction. Husky had particular business reasons for organizing the transactions as it did: to control costs and to control the building of the well. The third parties characterized and relied on the transactions as both sale of goods and as service contract. This was consistent industry practice. The third parties were registered vendors for the collection of PST. PST was paid by Husky and collected on the cement delivered to Husky by the third parties. [347] Here, under the PST Act, there is broad definition of the term sale. Unlike the Income Tax Act where there is an absence of definition, broad approach must be taken. When broad approach is taken to the meaning of sale, the focus is not on the timing of the transfer of the legal title but rather to the purchase of the materials by the final consumer. [348] In C-W Agencies Inc. v. British Columbia, 2003 BCCA 52 (CanLII), 177 B.C.A.C. 201, lottery companies applied for refund of PST. The Court referred to the definition of sale in the British Columbia sales tax legislation. It noted that sale, in the British Columbia legislation, included conditional sale, transfer of title or possession, conditional or otherwise, sale on credit or for instalments, an exchange, barter or any other contract by which, at price or other consideration, person delivers tangible personal property to another. The Court, in that case, went on to say the following at paras. 20 From these provisions, it is apparent the Legislature intended to capture for taxation purposes every transfer of good between persons for economic consideration, without regard to its form or to the amount or mode of payment. Otherwise, there would be no need for s. 17. ... ... 23 In my view, the lottery companies are purchasers who acquired tangible personal property ... under contract for consideration ... for their own use ... in British Columbia. ... [349] Clearly, the British Columbia court’s interpretation of the definition of sale in C-W was based on the rule of statutory interpretation that non-exhaustive definition connotes an expansion of the commercial meaning of the word, rather than restriction thereof. [350] Throughout the transactions between Husky and the third party contractors, there was reference to dry cement and additives. The third party contractor’s price book refers to certain types of cement and additives and the description of the product as dry cement. This is some extrinsic evidence that assists in the interpretation of the contracts. The request for quotations asked for bids to be submitted on the price of cement on per tonne basis. The RFQs referred to materials and the majority of RFQs in evidence referred to Husky’s purchase of materials. The bids were submitted on the basis of sale of materials and the provision of services. The contract was then awarded on the basis of the bid. At the well site, the service ticket was prepared based on the amount of product, that is dry cement and additives used. Thereafter, an invoice was prepared and forwarded to Husky. This invoice referenced the amount of dry cement and additives used. In all of those instances, PST was in addition to the amount of the product, that is, the dry cement and additives. [351] Husky argues that the contracts are clear and unambiguous. Husky argues that the evidence confirms that the contract was for service where the charge for the well cementing service was comprised of charge for services and charge for cement used in providing services. Husky argues it retained the contractors to perform work and services and that the contract was for well cementing service. Husky argues the MSA required the contractors to provide all personnel, labour, services and materials and equipment in the performance of or in connection with the service to be provided to Husky. Husky argues that it is service contract, and not contract for the sale of cement. Husky argues that what must be looked at is whether the main purpose of the contract is to sell goods or to sell services, and that determination depends on the essential character of the agreement. It argues that if the primary object of the contract is the transference of property in something which was not originally the property of the buyer, the contract will be for the sale of goods. Husky argues that on the other hand, if the primary purpose of the parties is the performance of work or the provision of services, incidentally to which property in the goods is to pass, then the contract will not be one for the sale of goods. Husky argues while cement is necessary component of the well cementing service, the contract is not primarily for the sale of cement. [352] While at first blush that position seems persuasive, the contracts here, which are comprised of requests for bids, or RFQs, bids, MSAs, where they exist, purchase orders and/or field tickets, if there are no MSAs, certainly do suggest that the contract provides for sale of goods and of the provision of services. It is true that there is not an independent sale of cement to Husky and that the sale of cement is tied to the provision of services, but the agreements identify sale/purchase of materials. [353] The Year 2000 Warranty clause, which was included in the majority of RFQs in evidence for these transactions, gives some indication of the intentions of the parties. The Year 2000 Warranty clause in the contract said the following at Exhibit D-13: 1.7 Year 2000 Warranty Vendor represents and warrants to Husky, and confirms Husky is relying on the accuracy of each representation and warranty in connection with the purchase of the Goods, any and all Goods shall be Y2K Compliant at all times during the term of this Agreement and thereafter. Goods shall be deemed to be “Y2K Compliant” if the performance, accuracy and functionality of the Goods, or any part or component of the Goods, will not be adversely affected by the use of the Goods after September 8, 1999 ... [Emphasis added/Emphasis in original] [354] Husky argues that the time for transfer must be identified in order to determine if there was sale of tangible personal property. sale under the PST Act does not identify the time for sale. Sale includes “transfer ... by any means”. The contracts refer to the goods being bid on the basis of price per tonne FOB location. This is an indication that the parties’ intention was that the title to the goods and materials passed to Husky when the goods and materials arrived at the well site. However, there is no limitation that the time of acquisition must be identified in the concept of “sale” under the PST Act. There is no pre-condition that the sale has to meet. There is no requirement in the legislation as to when title passes for the transaction to be considered sale of tangible personal property such that PST is to be paid. [355] There is no dispute in the evidence that dry cement is tangible personal property for the purposes of the PST Act. The legislation requires that tax be paid on retail sale, by consumer or user of tangible personal property for consideration. The contractual documents reflect the sale of cement. The RFQs refer to the sale, purchase or acquisition of goods/materials as between Husky and the third parties. Where an MSA was in place, the MSA was structured as service contract, but the MSA itself referred in every case to the supply of materials, provision of goods and warranty for materials and the MSA incorporated the RFQ, the request and the bid into the MSA and those documents all referred to sale. [356] The contracts between Husky and the third parties all contain provisions and terms which provide for the sale of materials to Husky. On the basis of the contracts, there was sale of tangible personal property under the PST Act. Were the contracts between Husky and the third parties supply and install contracts? [357] Husky argues further that even if the contracts appeared to include terms for the sale of cement, the contracts were, in fact, supply and install contracts and that the third party contractors were the users of cement. [358] The PST legislation does not consider the ultimate use of the tangible personal property as one of the criteria for determining whether or not sales tax is payable. Rather, it considers what is being sold. It is the subject matter of the sale of the contract that is relevant. The contracts appear to reflect sale. However, it is necessary to consider Husky’s argument to determine whether the essence of the transactions were supply and install contracts such that the contractors were the final users of the cement. [359] Husky pleads that the contractors are liable for the PST pursuant to ss. 5(6) of the PST Act, because the contracts should be interpreted as being for the supply and installation of tangible personal property in the course of which the contractors used or consumed the materials. Husky asserts the contracts were supply and install contracts and the third parties are the user or consumer of the materials in these contracts. Husky asserts, therefore, that the contractors are liable for the PST on the materials. [360] Husky also argues that because the cement is ultimately attached in the well bore to the property, it is an improvement to real property and PST should not be paid by Husky. However, the fact that the tangible personal property is ultimately attached to real property does not mean that there was not sale of tangible personal property under the PST Act. The nature and subject matter of the transaction is determinative. [361] In order for ss. 5(6) of the PST Act to apply to deem the contractors to be liable for the PST, the third party contractors must fall within the definition of “contractor” or “manufacturer”, the parties must have entered into contract for the supply and installation of tangible personal property, and the third party contractors must consume or use the tangible property manufactured or processed by them. [362] The terms “supply” and “installation” are not defined in the PST Act. [363] The third parties acknowledge that they could be characterized as meeting the definition of “contractor” under the PST Act. They also acknowledge that they may also meet the definition of “manufacturer” insofar as they may be regarded as manufacturing the materials provided in connection with the services rendered. [364] The third party contractors blend the dry cement that is mixed with the water supplied by Husky, that is made into slurry, and pumped down the well. However, while the third parties acknowledged they meet the definition of contractor or manufacturer, they take the position they are not the “user” or “consumer” of the dry cement mixture as required by the PST Act. The third parties also take the position that they did not enter into supply and install contracts with Husky. [365] Husky takes the position that because they pay one single payment for the work and materials provided by the third parties, and because they would not purchase the materials separately from the service, and because they argue they do not purchase the cement at the time the materials arrive on the well site, the contracts are supply and install contracts. [366] In examining the contracts, one must look at the objective intent of the contract. In Eli Lily Co. v. Novopharm Ltd., 1998 CanLII 791 (SCC), [1998] S.C.R. 129, 161 D.L.R. (4th) 1, the Supreme Court of Canada considered the proper approach to interpretation of the contract there in issue: 52 In order to ascertain whether the supply agreement conferred or had the effect of conferring sublicence upon Apotex, it is first necessary to consider the proper approach to the interpretation of such contract, and, in particular, the evidence which may be considered in this respect. In Consolidated‑Bathurst, supra, at p. 901, Estey J., writing for himself and Pigeon, Dickson, and Beetz JJ., offered the following analysis: Even apart from the doctrine of contra proferentem as it may be applied in the construction of contracts, the normal rules of construction lead court to search for an interpretation which, from the whole of the contract, would appear to promote or advance the true intent of the parties at the time of entry into the contract. Consequently, literal meaning should not be applied where to do so would bring about an unrealistic result or result which would not be contemplated in the commercial atmosphere in which the insurance was contracted. Where words may bear two constructions, the more reasonable one, that which produces fair result, must certainly be taken as the interpretation which would promote the intention of the parties. Similarly, an interpretation which defeats the intentions of the parties and their objective in entering into the commercial transaction in the first place should be discarded in favour of an interpretation ... which promotes sensible commercial result. ... 56 When there is no ambiguity in the wording of the document, the notion in Consolidated‑Bathurst that the interpretation which produces "fair result" or "sensible commercial result" should be adopted is not determinative. Admittedly, it would be absurd to adopt an interpretation which is clearly inconsistent with the commercial interests of the parties, if the goal is to ascertain their true contractual intent. However, to interpret plainly worded document in accordance with the true contractual intent of the parties is not difficult, if it is presumed that the parties intended the legal consequences of their words. This is consistent with the following dictum of this Court, in Joy Oil Co. v. The King, 1951 CanLII 41 (SCC), [1951] S.C.R. 624, at p. 641: in construing written document, the question is not as to the meaning of the words alone, nor the meaning of the writer alone, but the meaning of the words as used by the writer. 57 In my view, there was no ambiguity to the contract entered into between Apotex and Novopharm. No attempt was made to disguise the true purpose of the arrangement, or the circumstances surrounding its drafting. Clearly, the agreement was meant to minimize the deleterious effects of the amendments to the Patent Act, which were expected to and did eventually place severe restrictions on the former scheme of compulsory licensing, by maximizing the access of each party to as wide variety of patented medicines as possible. This was to be accomplished by obliging each party to obtain such material for the other in the event that one party possessed licence which the other lacked and could no longer readily obtain. All of this is evident on plain reading of the recitals to the supply agreement. Leaving aside the question of circumventing the legislation, which has no bearing on the interpretation of the contract, the parties' intentions are clear on the face of the agreement. Accordingly, it cannot properly be said, in my view, that the supply agreement contains any ambiguity that cannot be resolved by reference to its text. No further interpretive aids are necessary. [Emphasis added] [367] In Dumbrell v. Regional Group of Companies Inc., 2007 ONCA 59 (CanLII), 85 O.R. (3d) 616, the Ontario Court of Appeal said the following at paras. 48 In Eli Lilly, supra, at paras. 52‑54, Iacobucci J. refers to Consolidated‑Bathurst, supra, with approval. He clarifies, at para. 54, what is meant in Consolidated‑Bathurst by "the true intent of the parties" for contractual purposes: The trial judge appeared to take Consolidated‑Bathurst to stand for the proposition that the ultimate goal of contractual interpretation should be to ascertain the true intent of the parties at the time of entry into the contract, and that, in undertaking this inquiry, it is open to the trier of fact to admit extrinsic evidence as to the subjective intentions of the parties at that time. In my view, this approach is not quite accurate. The contractual intent of the parties is to be determined by reference to the words they used in drafting the document, possibly read in light of the surrounding circumstances which were prevalent at the time. 49 On the approach taken in Eli Lilly, supra, the focus is on the meaning of the words used in the contract. Evidence of the subjective intention of the parties has "no independent place" in the interpretative process: Eli Lilly, at para. 54; see also Staughton, "How Do the Courts Interpret Commercial Contracts?", supra, at 304‑306; Investors Compensation Scheme Ltd. v. West Bromwich Building Society, [1998] All. E.R. 98 at 114‑15 (H.L.). 50 In my view, when interpreting written contracts, at least in the context of commercial relationships, it is not helpful to frame the analysis in terms of the subjective intention of the parties at the time the contract was drawn. This is so for at least two reasons. First, emphasis on subjective intention denudes the contractual arrangement of the certainty that reducing an arrangement to writing was intended to achieve. This is particularly important where, as is often the case, strangers to the contract must rely on its terms. They have no way of discerning the actual intention of the parties, but must rely on the intent expressed in the written words. Second, many contractual disputes involve issues on which there is no common subjective intention between the parties. Quite simply, the answer to what the parties intended at the time they entered into the contract will often be that they never gave it moment's thought until it became problem: see Kim Lewison, The Interpretation of Contracts, 3d ed. (London: Sweet Maxwell, 2004) at 18‑31. [368] The Saskatchewan Court of Appeal, in SaskPower International Inc. v. UMA/B&V Ltd., 2007 SKCA 40 (CanLII), 293 Sask. R. 66, quoted from Consolidated Bathurst Export Ltd. v. Mutual Boiler and Machinery Insurance Co., 1979 CanLII 10 (SCC), [1980] S.C.R. 888 wherein the Court said, ... [T]he normal rules of construction lead court to search for the interpretation which, from the whole of the contract, would appear to promote or advance the true intent of the parties at the time of entry into the contract. Consequently, literal meaning should not be applied where to do so would bring about an unrealistic result or result which would not be contemplated in the commercial atmosphere in which the [contract was entered into]. Where words may bear two constructions, the more reasonable one, that which produces fair result, must certainly be taken as the interpretation which would promote the intention of the parties. Similarly, an interpretation which defeats the intentions of the parties and their objective in entering into the commercial transaction in the first place should be discarded in favour of an interpretation ... which promotes sensible commercial result. [369] In Rana v. Maduck, 2000 SKQB 318 (CanLII), 196 Sask. R. 54, the Saskatchewan Court of Queen’s Bench acknowledged that the surrounding circumstances are relevant to the interpretation of contracts. That is, they are relevant in determining what was contemplated by the parties. The background and context in which the parties were operating assists in determining the intention of the parties and does not offend the parol evidence rule. Extrinsic evidence has always been admissible, however, as Justice Wilkinson stated in Cinabar Enterprises Ltd. v. Bertelson, 2000 SKQB 229 (CanLII), 193 Sask. R. 161, the intentions and expectations of the parties are to be assessed objectively and not subjectively. Applying the extrinsic evidence, Justice Wilkinson noted that in allowing extrinsic evidence, one speaks objectively when speaking of the intention of the parties, that is, what must be ascertained is what reasonable persons would have intended if placed in the position of the parties. [370] In this case, there is no evidence of the intentions of the parties at the time of entering into the contracts. The evidence relates to the actions of the parties in performing their obligations under the contracts. [371] Here, the terms of the contracts speak for themselves. In considering the contracts here, which include the request for bids or RFQs issued by Husky, there was no provision which would describe the contract as supply and install contract. Certainly, the RFQs made references to product and/or services being supplied. This appears to be consistent with the position that the contract was for the provision of product and related service. The RFQ did not refer to supply and install situation. Clearly, the RFQ demanded that the bid be made on the basis of price per tonne for cement FOB location including additive and blending charges. FOB location is used consistently through the documentation between Husky and each of the third party contractors. FOB is term that refers to the sale of goods. The cement product was not going to be re-stocked back to the third party contractors if it was not used at the well. Husky paid for the cement whether it was used or not. Husky expressly requested that the bid price per tonne of cement be provided FOB location and the responses to the bids did the same. [372] The MSAs, when there were MSAs, did not make any reference to supply and install. They were titled service contracts which incorporated the terms of the RFQs or requests for bids and the bids into the terms of the MSA. [373] The bids supplied by the third parties contained price per tonne of cement. This bid price was based on the third party contractors price book which set out their price per tonne of various cement blends. [374] After completion of the well, the field ticket set out the amount of cement and cementing materials delivered to the well. The invoice contained charge for materials plus PST, none of which is consistent with supply and install contract. It is also of note that the time at which the sale takes place is not relevant to the fact of sale for PST purposes. [375] In examining the contracts, there is not single reference to the term “supply and install”. These are sophisticated parties. Husky is sophisticated oil producer with legal department and tax department. Had the parties, or even Husky alone, contemplated that these transactions were supply and install contracts, the terminology or something akin to that terminology would have been included in the various documents produced by Husky in the transactions. [376] Husky also suggests that even though the contracts themselves do not identify the contracts as supply and install contracts, the essence of the transactions are supply and install contracts. Husky argues that Husky is not the consumer or user of the materials, because once the cement materials are mixed with the water and pumped into the well bore, the materials lose their identity as tangible personal property and become integrated into the well bore. Husky relies on Cairns Construction Ltd. v. Saskatchewan, 1960 CanLII 59 (SCC), [1960] S.C.R. 619, 35 W.W.R. 241 to support that position. [377] In Cairns, supra,, the issue of who was the consumer or use in the context of service contracts was considered by the Supreme Court of Canada. In that case, determination of consumption and use was complimentary to the determination of whether there is sale for the purposes of the PST Act. [378] In Cairns, the materials used or consumed were prefabricated houses. They were acquired for incorporation into real property: the house. [379] Here, it is clear that the third parties were not selling to Husky completed improvement to real property. The evidence does not support the assertion that the third party contractors were bidding on completed well bore. [380] Husky was building the well. Mr. Ellsworth acknowledged that Husky did not think of the third parties as building the foundation for well. Rather, Husky viewed the cementing contractors as being component of Husky’s building of the well. Husky was the party building the wells. At no time did Husky ever consider that any of the third parties were building the oil well or even component part of the oil well. That was not the role that Husky assigned to the third parties. [381] Further, Husky exercised all discretion in relation to the well. Husky managed the construction and the exercise of all discretion in respect of the well. Husky was responsible for the overall design, construction and management of the construction of the well. If changes were made to the well, those were to be made by Husky. [382] Husky developed the plans and the specifications for the construction of the well site and exercised all discretion in determining the specifications. [383] It is clear from Mr. Ellsworth’s evidence that Husky viewed itself as the builder of the oil well. In fact, Mr. Ellsworth described Husky as the general contractor. Husky did not view the third parties as being involved in that responsibility. [384] Husky’s documentation indicates that there were detailed plans for the construction of each well. There were detailed budgets and daily costs associated with the construction of each and every well. Prior to Husky sending out request for quotation, it prepared detailed specifications and information for its cementing program for each well. That information was supplied to the third party contractors. The purpose of that was to elicit the bids for the cement and services of the pumping. Husky’s drilling program revealed what types of equipment would be used in the cementing process, in addition to the equipment supplied by the third parties. In some instances, extra cementing tools were required and Husky would arrange for that contract with another third party. By way of example, Mr. Ellsworth indicated that stage cementing tool would often be necessary for two stage cement job when conditions in the well bore did not allow full column of cement from the total depth of the well to the ground level. The third parties did not make arrangements for this or provide for that component. Rather, that was arranged by Husky. Husky then contracted with this other third party to supply the personnel on site to ensure that that tool was used properly. The third party contractors did not operate this tool. Husky did not ask the third parties to contract with the company that had the tool. In this regard, Husky’s actions were not consistent with Husky contracting with the third parties for the completed concrete wall or foundation for the well bore. It appears that Husky was asking third party contractors to provide the specific components, that is, the materials and the services, the product of the dry cement, the mixing of the cement with the water at the well site and the pumping of the slurry down the hole. [385] The documentation also indicated that it was Husky who initiated and prepared all of the details of all of the cementing programs. The cementing program set out the well specifications, the dimensions, the volume of the pre-flush, the type and quantity of cement to be supplied as well as surface production procedures. The third parties used this information, supplied by Husky with respect to Husky’s specifications, in bidding the contract. As well, the drilling supervisor was in charge of confirmation of cement volumes at the well site. [386] Husky’s evidence was that Husky controlled the pace of construction at the well site. In fact, as stated, Mr. Ellsworth likened the site supervisor as construction foreman on housing project, like general contractor. It was Husky who obtained the license to drill the well as the operator. It was Husky who prepared the drilling program and the drill plan summary for how the well was to be constructed. [387] Likewise, Husky made the determination of the dimensions of the well in their drill plan summary for the specifications of the well. Husky planned the type of well to be built and initiated the process of building the well. Husky prepared its overall budget for the cost of constructing the well and then created plan for where the well will be located. [388] Husky contracted with all contractors prior to the well being commenced and set out specific and detailed information for the drilling crew. The third party contractors were given specific drilling instructions and detailed directions in terms of what process to use to pump the cement into the well bore. It is also of note that if there was excess casing, it was cut off by an independent welder. This was not service undertaken by the third parties at the well site. It is clear that cementing the casing was not complete until the excess casing was cut off by the welder. As well, despite the fact that the third party contractors made recommendations on the types of cement and additives, it was Husky who made the final decision with respect to the type of cement blend to be used on the well site. The evidence was that Husky’s geologist made the final decision on what type of casing was necessary. Likewise, Husky controlled the exact content of the cement concentration pumped into the well. Husky supplied water for the dry cement to be mixed into slurry at the well site and pumped into the well bore. Husky also determined where the third parties’ equipment was to be situated while pumping was being undertaken and reviewed the technical details with the third parties. [389] Husky often ordered excess cement to ensure that there was sufficient cement for the completion of cementing job. Husky asked for and received daily drilling reports, including report on the cement. Husky bore legal responsibility and liability for the cementing of the well bore, including environmental requirements such as protection of ground water and the need to separate hydrocarbons underground. Husky also hired the waste disposal company to dispose of cement returns from the well site. [390] The third parties’ obligations under the contracts was restricted to the following: third parties followed the exact specifications of Husky; third parties provided the type and exact amount of dry cement as specified by Husky; the third parties made recommendations with respect to cement, but Husky made the final decision; and, the third parties pumped the cement. Husky made the final determination of which product would be used. Husky made its own calculations independent of the third parties’ calculation of the amount of cement that was necessary. The third parties pumped the dry cement mixed with the water formed into slurry into the well bore, using the amount of pressure which Husky had specified in the drilling program. Third parties did not attend to the well site until Husky called them to deliver the product. At the well site, if there were problems, it was Husky who had the authority and responsibility for any issues. The third parties were required to follow Husky’s directions at the well site as Husky directed. Husky maintained the supervision for the construction of the well site. The third parties’ participation ended when they finished pumping the last of the mixed cement into the well bore. The third parties did not clean up the well site nor did they cut off the casing. Ultimately, Husky assumed all risks associated with building their oil well and Husky maintained control over that construction. It is clear from the evidence that Husky was building the well. [391] Husky organized the cementing of the well and the constructing of the contract so that Husky had complete control and authority over the well. [392] John Wilson testified on behalf of BJ Services. He indicated that BJ Services was selling cement products, chemicals and services associated with pumping those products and chemicals. As far as Mr. Wilson was concerned, the role of BJ Services’ sales team was to sell the products and services that BJ Services offered. [393] Mr. Wilson testified that the pricing structure used by BJ Services did not take into account any risks that would be associated with supply and install contract. Mr. Wilson was aware that had BJ Services undertaken supply and install contract, then BJ would have had to assume risks associated with cementing the well bore. The risks associated with cementing well bore include fluid oozing into the well bore (which means you would have to re-drill the well) and environmental and safety issues. Husky assumed the risk on the well bore because Husky owned the well bore. At the well site, Husky or its agent had the ultimate decision-making power on that well site. The third party contractors bid the contract on the basis that they did not have any of the risks associated with the contract and testified that their pricing would have been different had the contract been one for which they were obligated to assume the risk. [394] This is not situation where the evidence establishes that the parties intended supply and install contract and Saskatchewan Government assessed PST on the basis that the contracts represented something different. The evidence indicates the parties conducted themselves in accordance with their view of the intention of the contracts, which included sale of tangible personal property. [395] In Re Mobile Concrete Services Ltd. v. Nova Scotia (Minister of Finance and Economics), (1973) 1973 CanLII 1245 (NS SC), 38 D.L.R. (3d) 465, 11 N.S.R. (2d) 206 (N.S.S.C.), the Nova Scotia court rejected the argument that the concrete company, by placing the cement, was the user of the cement. In that case, the evidence established that Mobile’s primary contracts were with suburban home builders and farmers close to the plant. Orders came to the plant and the cement was then delivered directly to the site. Mobile paid placers for their services then billed the owners who were constructing the buildings. As well, Mobile had pumping equipment and the customer was charged fee for this service. The hose attached to the pump was moved from point to point as required by the placers and Mobile was paying the placers for the work. The Court said the following at p. 471: The minister maintains that Mobile is using the goods in placing cement and therefore liable to the tax. The tax is payable, if at all, at the time of purchase. Under the statute Mobile is exempt on the purchase of the cement. Having regard to the evidence, find that Mobile is in the business of selling cement. This is the primary object of the company. In order to accomplish this end the company must work in close cooperation with builders and contractors on delivery because of the nature of the product. substantial quantity of the product is delivered directly to the site to contractors or owners who in fact are responsible for placement. In those cases where Mobile arranges for placers, the accounts show distinct charge for those services. Clearly, these persons are not employees of Mobile. This function is service one for the convenience of the owner. am unable to find on the evidence that Mobile is in the business of erecting concrete or that it is using cement for that purpose. [396] In Mobile, supra, the placing of the cement through the pumping did not change the nature of the transaction, it was still sale of goods. [397] Throughout the term of the agreements during the period in question in this lawsuit, the contractors and Husky treated the cementing services as sale of tangible personal property. The contractors treatment of the well cementing services was consistent with the plain language of the PST Act. There is nothing in the documents tendered in evidence at trial that suggest they were supply and install contracts. It is clear Husky did not view it as supply and install contract, nor did any of the third party contractors. [398] The MSA documents, the RFQs, the field tickets, and the service tickets all contradict Husky’s argument that these were supply and install contract. All of the documents contain provisions which limit the third party contractor’s liability. They identify Husky as the party building the well. Husky assumed all risks associated with the construction of the well. The third parties did not include cost for risk into their pricing. [399] The conduct of the parties after the formation of the contract, that is, evidence of the parties post-contracting performance of their contractual obligations, can be admitted as an aid to interpretation if the contract or provision being interpreted is ambiguous (Wagman v. Obrigewitsch, 2010 SKQB 84 (CanLII), [2010] W.W.R. 462). So, if it is found that the contract here is ambiguous, then the conduct of the parties post-formation of their contracts can give us assistance. [400] In this instance, the Government of Saskatchewan simply accepted the transactions as they were structured by these parties. The parties structured the contracts such that Husky was responsible for the payment of the PST on the materials supplied in the contracts. The third parties collected the tax from Husky, and Husky paid it without objection, and then the third parties remitted it to the Provincial Government. The contracts were not supply and install contracts. [401] The tax under the PST Act really focuses on the ultimate user or consumer of the product. Husky structured these contracts in order to control costs and maintain control at the well site. It was clear from Mr. Ellsworth’s evidence that Husky undertook very detailed analysis of cost implications when it contracted for the drilling of well. Mr. Ellsworth was clear that Husky wished to use the lowest cost approach to construction. It is clear from all of the evidence of all witnesses that had the contract been constructed such that it was supply and install contract, such that the third parties had control and bore responsibility for the well, it would have been significantly more costly undertaking for Husky. It is clear that all of the parties constructed the contracts in the way in which they identified separate sale of goods. It is clear that at the time that the contracts were constructed, Husky made deliberate decision as to how to maintain control over the well sites and to have the contracts structured in way that would reduce their costs. [402] The evidence establishes that Husky determined the profitability of building the well; prepared budget for the well; obtained the licence to drill the well; prepared the detailed drilling program; determined the dimensions and specifics of the well; assessed the bids on the basis of cost; gave specific and detailed instructions on the drilling; and, gave specific and detailed instructions to the third parties for the pumping of the cement and employed other contractors, such as welders, to complete the cementing. Husky had the ultimate decision on the cement blend to be used and the content of the cement concentration pumped into the well. Husky always purchased extra cement to ensure sufficient materials. Again, this decision or authority did not rest with the third parties. Husky did not rely on the third parties to make this decision. Husky supplied the water to mix with the cement for the slurry. Husky supervised the entire cementing. It instructed the contractors when to attend and had the ultimate decision-making authority in relation to the cementing of the well. Husky arranged for disposal of excess cement returns from the well. [403] After the well was cemented, Husky prepared the cementing and casing summary. Husky prepared and submitted the drilling report to Energy and Mines. It was Husky, not the third parties, who bore legal responsibility and liability for environmental issues such as protecting ground water. [404] The third parties were required to follow the exact specifications of Husky with respect to the type and amount of cement. [405] The third parties could make recommendations on the type and amount of cement but Husky relied on their own determinations and calculations, independent of such recommendations. The third parties had no role in the planning of the building of the well and only attended to the well site shortly before cementing began and only when called to attend by Husky. The third parties pumped the cement mixed with Husky’s water with the amount of pressure instructed by Husky. The third parties were supervised and controlled by Husky at the well site. The third parties were subject to Husky’s direction, even in relation to the cementing. If there were problems with the cementing, Husky decided the solution and the third parties had to follow Husky’s direction. [406] The third parties’ role ended when pumping of the mixed cement was finished. They did not clean up. That was Husky’s obligation and it contracted with another party to do that. Husky hired other contractors to provide additional equipment for the cementing or to assist in the cementing of the well. [407] Husky was the user or consumer of the cement. Husky was constructing the oil wells. The third parties were providing materials and services to assist in construction of the well. Husky has failed to establish the contracts were supply and install contracts. [408] The PST Act focuses on the ultimate user or consumer of the tangible personal property. Husky was the ultimate user and consumer of the tangible personal property sold by the third parties to Husky. The manufacturing and processing cases [409] Husky also argues that the fact that the third parties are entitled to Manufacturing and Processing Incentives under the Income Tax Act is evidence that these transactions were supply and install contracts. [410] This issue was considered in series of cases relevant to the present facts and some of which were previously referred to: Halliburton, supra, Nowsco, (1988) 88 D.T.C. 6300, aff’d (1990) 90 D.T.C. 6312 (F.C.A.), and Will-Kare Paving, supra. [411] The comments of Reed J. in Halliburton in the Federal Court Trial Division have been discussed in the subsequent cases. Although the Crown strenuously argued that the contracts were contracts for the provision of services, the court found for the taxpayer. At p. 5338, she stated: have considerable difficulty with this line of argument [that the sale of goods distinction between contract for the sale of goods and contract for work, labour and materials applies]. In the first place, it is based on distinctions developed for purposes of the sale of goods legislation, not with respect to subsection 125.1(3)(b) of the Income Tax Act. do not read subsection 125.1(3)(b) as requiring that taxpayer's profit has to arise out of contract for sale of goods as defined by the various Sales of Goods Acts. Subsection 125.1(3)(b) does not talk of sale of goods. It talks of profit arising out of the processing of goods for sale. There is no doubt that the products in question are sold to the Plaintiff's customers in the sense that the invoices list the cost of the various components which go into each product and the blending and processing charges are specifically detailed in the invoice. Secondly, do not find any requirement that the contract which gives rise to the taxpayer's profit must be of particular nature, eg: one for the sale of goods and not one of more extensive nature involving work and labour as well as the goods or material supplied. In my view it is the source of the profit, (arising out of processing) that is important for the purposes of section 125.1(3)(b), not the nature of the taxpayer's contract with its customers. [412] The Federal Court of Appeal adopted that language in Nowsco which was released at the same time as the appeal decision in Halliburton. Nowsco is the predecessor company of BJ Services. It stated at 6318: am of the opinion that common-sense, realistic and business-like appreciation of all of the foregoing indicates that the Respondent does not enter into pure service contracts, but, rather processes goods to the operator/customer’s specification which it utilizes to perform the specialized services required of it by its customer. It does so by means of what the Trial Judge described as “mobile factory” which utilizes the various materials, mixtures and blends produced for delivery to the well bore for the purposes required by the customer. Contrary to the argument of counsel for the Respondent, believe that determining the particular time at which and where title to the goods passes, is of little importance, on the facts of this case, in the determination of the relationship between the parties. However, what is of some significance, think, is that since the products furnished are produced to the particular specifications of the operator/customer and must be paid for by it whether completely used or not (subject to some limited contractual exceptions), it may well be that title passes when the mixing and blending is effected. At whatever point the transfer is effected, adopting the modern principle of statutory interpretations that “the words of an Act are to be read in their entire context and in the grammatical and ordinary sense harmoniously with the scheme of the Act, and the intention of Parliament” [Driedger, Construction of Statutes, 2nd ed., 1982 at p. 87], am of the opinion that the processing activities of the Respondent fall within the meaning of processing of goods for sale in paragraph 125.1(3)(a) of the Act. [Emphasis added] [413] The Federal Court of Appeal upheld the decision of the trial judge and allowed the taxpayer to claim the manufacturing and processing goods credit. [414] In Will-Kare, supra, the Supreme Court of Canada discussed two approaches taken to the interpretation of “manufacturing and processing goods for sale”: 19 Canadian jurisprudence to this point has adopted two divergent interpretations of the activities that constitute manufacturing and processing goods for sale. Without canvassing these authorities exhaustively, it may be helpful to outline briefly those cases which delineate these two distinct approaches. 20 One point of view is expressed in Crown Tire Service Ltd. v. The Queen, [1984] F.C. 219 (T.D.), where the court imports common law and provincial sale of goods law distinctions in defining the scope of the manufacturing and processing incentives' application. Only capital property used to manufacture or process goods to be furnished through contracts purely for the sale of such goods qualifies. Property used to manufacture or process goods to be supplied in connection with the provision of service, namely through contract for work and materials, is not viewed as being used directly or indirectly in Canada primarily in the manufacturing or processing of goods for sale, and as such, does not qualify for either the accelerated capital cost allowance or the investment tax credit. ... 22 second line of authority departs from the point of view in Crown Tire and declines to apply statutory and common law sale of goods rules in delineating that capital property to which the manufacturing and processing incentives apply. Rather, these cases advocate literal construction of "sale" such that the provision of service incidental to the supply of manufactured or processed good does not preclude receiving the benefit of the incentives. Any transfer of property for consideration would suffice. See Halliburton Services Ltd. v. The Queen, 85 D.T.C. 5336 (F.C.T.D.), aff'd 90 D.T.C. 6320 (F.C.A.), and The Queen v. Nowsco Well Service Ltd., 90 D.T.C. 6312 (F.C.A.). 23 Halliburton and Nowsco considered the form of contract entered into between the taxpayer and customer to be irrelevant. In both cases the Federal Court of Appeal quoted with approval language from Reed J.'s decision in Halliburton at the Trial Division that appears to suggest an alternative test based upon the source of the taxpayer's profit. As stated by Reed J., at p. 5338: ... do not find any requirement that the contract which gives rise to the taxpayer's profit must be of particular nature, eg: one for the sale of goods and not one of more extensive nature involving work and labour as well as the goods or material supplied. In my view it is the source of the profit, (arising out of processing) that is important ... not the nature of the taxpayer's contract with its customers. ... 37 The principles enunciated in Crown Tire and Hawboldt Hydraulics, to the extent they dictate reference to common law and statutory definition of sale, offer guide preferable to the broader interpretation of sale described in Halliburton and Nowsco. [415] The case law arising from the manufacturing and processing issue is not determinative of the PST Act. The PST taxing provision does not mirror the manufacturing and processing tax credit provisions. The definitions of the relevant terms in the PST Act are not present in the Income Tax Act. The fact that the third parties have obtained the income tax credits does not affect the application of the PST to these transactions. Has there been mistake of law in the payment of the PST by Husky? [416] Husky’s pleadings allege that it paid PST on the cementing contracts in error. Husky has not plead mistake of law, but the Saskatchewan Government suggests that pleading amounts to pleading of mistake of law. The pleadings here allege that the PST was paid in error and as such, mistake of law must be considered. If there was mistake of law, rectification is the equitable remedy. [417] In Canada (Attorney General) v. Juliar, (2000) 2000 CanLII 16883 (ON CA), 50 O.R. (3d) 728, [2000] O.J. No. 3706 (QL) (Ont. C.A.), (leave to appeal refused), the Ontario Court of Appeal set out the governing principles with respect to rectification for mistake of law. Juliar was case where the shareholders of corporation had made an agreement to transfer their shareholdings to holding corporation. The accountant that structured the transaction believed that it would not matter whether the transaction was structured in one way or another. However, it turned out the method that was used exposed the shareholders to significant tax liability. The Court was asked to rectify the agreement to eliminate the tax liability. The Court of Appeal adopted the four following governing principles for rectification based on mistake of law: 1. The Court has discretion to rectify where it is satisfied that the document does not carry out the intention of the parties; 2. Parties are entitled to enter into any transaction which is legal, and, in particular, are entitled to arrange their affairs to avoid payment of tax if they legitimately can; 3. If mistake is made in document legitimately designed to avoid the payment of tax, there is no reason why it should not be corrected. It would not be correct exercise of discretion in such circumstances to refuse rectification merely because the Crown would thereby be deprived of an accidental and unexpected windfall; and 4. Rectification need not be refused because the sole purpose of seeking it is to enable the parties to obtain legitimate fiscal advantage, when it was their common intention to obtain that advantage at the time of the execution of the document. [418] In Juliar, supra, the Court of Appeal rectified the agreement so that the expected tax consequences could occur. [419] In the case of Juliar, supra, there was no dispute between the parties over the terms of the agreement, and had it not been for the rules of the Income Tax Act, R.S.C. 1985, c. (5th Supp.), they would have been free to amend the agreement to achieve the result they wished. In Juliar, the evidence was clear and all the parties agreed that the final agreement did not carry out the parties’ intention. [420] In Binder v. Saffron Rouge Inc., (2008) 2008 CanLII 1662 (ON SC), 89 O.R. (3d) 54 (Ont.Sup.Ct.), the Ontario Superior Court of Justice declined to follow Juliar in case where applicants sought to have documents under which class of shares had been issued rectified so that they could avoid certain tax disadvantages. The trial judge distinguished Juliar on the ground that in Binder, there was not, as there was in Juliar, common continuing intention that the transaction, the issuance of the shares, be effected in manner that would preserve the applicant’s tax advantage. [421] Here, Husky entered into evidence various documentary evidence dealing with the agreements between Husky and each of the third party cement contractors. William Ellsworth, Husky’s main witness, indicated that the contracts were structured as they appeared when he took over the position as Engineering Manager in the Drilling and Completions Department. Hugh Magill, the Commodity Tax Coordinator for Husky indicated that he had nothing to do with the making of these contracts. Both of the witnesses acknowledged that these contracts were always structured as we saw them and PST was paid on these contracts. The RFQs and the MSAs were Husky documents. No witnesses involved in the making of the contracts were called and no witness from Husky testified to suggest that Husky intended the contracts to be supply and install contract. No witness for Husky testified that the contracts were intended by Husky or by the third party contractors to be something other than how they appear. [422] John Wilson of BJ Services testified that he was not familiar with the phrase supply and install contract between 1996 and 2000. Mr. Wilson confirmed that at no time did Husky ask BJ Services or its predecessors to bid on supply and install contract. As well, Andreas Wienecke, from Sanjel, and Michael Kelly, from Trican, testified that they would not characterize these contracts as supply and install. [423] All of the witnesses for the third parties testified that there was never an intention by the third parties to enter into supply and install contract in relation to the cementing transactions. Their evidence was that had there been any suggestion by Husky that they were undertaking supply and install contract, the third parties’ bids and conduct in the transactions would have been different. The intention of the third parties throughout the transactions was always to contract for the provision of materials and services and the written contracts reflected that intention. [424] The evidence here does not establish that Husky and the third party contractors had common intention to structure their contracts as supply and install contracts. Husky’s view of the contracts now differs from the third party contractors, but the evidence does not establish that Husky’s intention and the third parties’ intention at the time of making the contracts was for supply and install contract. More importantly, the evidence fails to establish that the parties intended the contracts to be supply and install contracts, but mistakenly drafted them in another way. The evidence does not establish the parties mistakenly drafted the contracts such that Husky paid the PST when the parties actually intended the third parties to pay the PST. [425] Husky failed to establish, on balance of probabilities, that mistake was made in the agreements. Husky has failed to establish that the agreements did not carry out the parties’ intentions. There is not, here, as there was in Juliar, supra, evidence of common continuing intention that the transaction be effected in the manner as is now suggested by Husky. [426] Further, with respect to the burden of proof, this is not situation where the Minister has undertaken re-assessment of the tax based on contract submitted by the parties. Here, the parties structured their contracts and their agreements in certain way and pursuant to those arrangements, the third party contractors collected the tax from Husky. Husky paid the tax to the third party contractors and the third party contractors remitted the same to the Minister of Finance. Subsequent to this, Husky sought to re-assess that application of the tax and when the Minister declined to undertake re-assessment, based on the position of Husky that an error had made in the characterization of the contract, Husky commenced this law suit. The third parties disagree with Husky’s position there has been mistake. The Minister, here, has not substituted his view for that of the parties. The Minister simply received the tax based on the way in which the parties had constructed their contract. Is the decision Burlington Resources Canada Ltd. v. British Columbia, 2013 BCSC 292 (CanLII) determinative of the issues? [427] The Supreme Court of British Columbia released the decision of Burlington Resources on February 26, 2013. The parties came back before me subsequent to the release of that decision to make further submissions. Husky argued that the Burlington Resources case, which is British Columbia decision involving the same issues as those before me, is determinative of the issues. [428] The Burlington Resources case was an appeal from decision of the British Columbia Minister who affirmed an assessment of provincial sales tax as against Burlington Resources, an oil producer, in relating to well cementing services provided by BJ Services. The court identified that the issues involved question of whether the contracts between Burlington and BJ Services were properly characterized as service contracts to which the provision of materials was incidental, or were they contracts by which BJ Services sold materials to Burlington. [429] While the burden of proof in Burlington Resources was different from the case before me, the issues raised in that tax appeal were similar to those before this Court. [430] However, an examination of the facts in the Burlington Resources case identifies number of factual differences which result in the Burlington Resources case being distinguishable. [431] One of the most important differences is the nature of the contracts between Burlington Resources and BJ Services. It is clear in the Burlington Resources case that the contracts involved in the transactions always involved Master Services Agreement. The MSA in the Burlington Resources case included Special Purchasing Contracts (SPC) or Work Orders. The SPCs, Work Order and the MSA constituted the parties’ entire agreement. The RFQs and bids were not determined to be part of the agreement in Burlington Resources. [432] The MSA in the Burlington Resources case included provision that the risk of loss remained with BJ Services until title passed on Burlington’s acceptance. This was contained in para. 2.34 of the MSA. This provision regarding risk of loss was in the same section of the MSA as para. 2.31, which stated that BJ Services was to decide how the services were to be performed and that Burlington had no control over the manner, method or details of BJ’s performance. [433] This provision regarding risk of loss was not contained in any MSA in the contracts between Husky and the third parties. Further, the contracts in Burlington Resources did not refer to the delivery of the cement FOB location. The court, in Burlington Resources, found that the contracts between those parties were such that the cement remained in the possession of BJ Services until the well bore was cemented. The court found that BJ Services had control of the cementing pursuant to the terms of the contracts. [434] Further, the MSA in Burlington Resources indicated that BJ Services determined how the services were to be performed. In Burlington Resources, the MSA indicated that Burlington had no control over the manner or method of BJ’s performance. In the Burlington Resources case, the materials at the work site were only within the control of BJ Services and Burlington was subject to BJ Services’ decisions about the cementing. This is significantly different from the contracts between Husky and the third parties here. Husky controlled the design of the well, the amount of cement and ultimately controlled the cementing process at the well site. While Husky relied on the third parties’ expertise, Husky had the ultimate control of the cementing at the well site. The cementing contractor here did not have the same element of control as the cementing contractor in Burlington Resources. [435] It is also of note that in the Burlington Resources analysis, the trial judge made reference to the British Columbia interpretation bulletins dealing with time and materials or cost-plus contracts and the legislation. The court indicated that the time or transfer of the materials was relevant to the issue of determining whether sale had occurred and/or whether Burlington was the user of the materials. On the facts, the court held that Burlington did not acquire the incidents of title to the materials when they arrived at the well site, or even when the materials were pumped into the well head, because BJ Services had complete control of the pumping. As well, in the Burlington Resources case, BJ Services was not paid if the materials delivered to the well site were not used. Again, these facts are distinguishable from the case before me, where Husky paid for the cement whether it was used or not. [436] The other distinguishable feature was the British Columbia legislation and regulations. [437] In the end, find that Burlington Resources is not determinative of the case before me. CONCLUSION [438] I find that Husky has failed to satisfy me on a balance of probabilities that Husky is entitled to a refund of the PST it paid on well cementing contracts between itself and the third parties during the period of the claim. [439] The claim of Husky is dismissed. [440] Costs of the action are reserved to be determined upon application of the parties. J. C. L. DAWSON [1] p. 68 of Husky’s Brief of Law filed January 5, 2011 [2] p. of Third Parties’ Written Submissions

Tax Law – Contract for Services – Payment of PST The plaintiff has the onus of proving it is not liable for the payment of PST on a balance of probabilities. Parties are entitled to structure their legal relationships as they see fit. The Court must determine whether the tax is payable based on the agreements as constructed between Husky and the third parties. There was no evidence that Saskatchewan Finance and the third party contractors entered into an agreement to alter the nature of the contracts so that Husky paid PST when it would not otherwise have been obligated to pay. The evidence established that Husky determined the way in which bids were submitted and the way Husky was invoiced. In each contract, Husky required that the bid include a price for service and price for materials. In each case, it was contemplated that PST was in addition to the price bid for the materials provided. The contracts between Husky and the third parties all contain provisions and terms that provide for the sale of materials to Husky. On the basis of the contracts, there was a sale of tangible property under the PST Act. Husky was the user or consumer of the cement. The third parties were providing materials and services to assist in the construction of the oil well. Husky has failed to establish that the contracts were supply and install contracts. Husky was the ultimate user and consumer of the tangible personal property. Husky is not entitled to rely on mistake of law. Husky has failed to establish on a balance of probabilities that it is entitled to a refund of the PST it paid on well cementing contracts between itself and third parties. The claim is dismissed.

7_2014skqb116.txt

D. P. Ball Court No. 16211 2010 SKQB 51 Estate No. 22-1032810 J.C.R. IN THE COURT OF QUEEN'S BENCH PROVINCE OF SASKATCHEWAN IN BANKRUPTCY AND INSOLVENCY IN THE MATTER OF THE BANKRUPTCY OF ROBERT ALAN BURROUGHS Dean Burlingham, Burlingham Associates, trustee Michael Hall, for Synergy Credit Union Robert Alan Burroughs, bankrupt JUDGMENT LIAN M. SCHWANN, Q.C. February 8, 2010 Registrar in Bank­ruptcy [1] Robert Alan Burroughs (“Burroughs”) applies for his discharge from bankruptcy through his trustee. Discharge is opposed by the Synergy Credit Union (“SCU”) and by the trustee. His Statement of Affairs shows assets of $171,255 (mostly exempt or encumbered) against unsecured debts totalling $433,750, and secured debt of $150,000. Burroughs is first time bankrupt. [2] Burroughs assigned into bankruptcy on January 25, 2008. His discharge application came before me initially on November 14, 2008 at which time SCU exercised its right to cross-examine Burroughs. That examination was marred by acrimony but served to highlight informational gaps in the bankrupt’s disclosure as well as raising questions about surplus income obligations. His application was then adjourned sine die and fiat issued requiring further disclosure. The matter came back before me on October 16, 2009 and Burroughs was again cross-examined by SCU. [3] The context for this bankruptcy is set out in the decision of Dovell J. in Lloydminster Credit Union Limited v. Robert Alan Burroughs, 2007 SKQB 81 (CanLII) (the “Judgment”). The pertinent facts are these. Burroughs was cattle farmer. He financed this undertaking principally through the Lloydminster Credit Union (now SCU) having taken out numerous loans over the years. In 2001 Burroughs began to experience cash flow problems culminating in series of loans and consolidations. His financial problems worsened in 2002. In April of that year he advised SCU of his intention to sell cattle through Heartland Livestock in order to raise cash. SCU supported his plan. Instead of selling cattle, Burroughs did the opposite. He purchased cow/calf pair, paid for by cheque which he believed would be backed by financing from SCU. That financing did not transpire and his cheque was returned NSF. Eventually this debt was covered by an unsecured loan from friend. [4] His situation grew progressively worse. The drought, which began in 2001, persisted. As he couldn’t grow sufficient feed for his cattle operation, he was forced to purchase it at great expense. Burroughs obtained further $12,000 loan from SCU to cover his operational expenses however it fell short of his $20,000 request. Things worsened and in July 2002 he sold off his entire herd. [5] SCU sued Burroughs on the various loans. Burroughs counter-claimed arguing ‘negligent misstatement’ based on reliance he placed on discussions with SCU respecting financing the cow/calf pair and operational expenses. In his terms, ‘forced sale’ ensued which resulted in return of .40 cents on the dollar, or loss of $89,000. [6] SCU succeeded with its claim and was granted judgment in the amount of $91,126.29. Burroughs’ counterclaim was dismissed. The Court found there was no agreement to lend him $30,000 for the cow/calf pair or the full $20,000 for feed and other operational expenses. [Judgment, para. 40 and 43] [7] In dismissing his counterclaim, the trial judge made the following observation: [47] In final argument Robert expressed to the Court that he did not expect to win his lawsuit but that he had to do what he believed in and what he had to do. Unfortunately, Robert was mistaken about what he perceived was told to him on two occasions. Having said that, the Court is perplexed by Robert’s actions in pursuing his unreasonable positions in light of the mountain of documentary evidence in support of the Credit Union’s position. [8] In subsequent ruling, the Court awarded SCU costs fixed at $12,000. [fiat of Dovell, J. March 29, 2007] [9] SCU objects to Burroughs discharge on the following grounds: the bankrupt’s assets are not equal to fifty cents on the dollar compared to his unsecured liabilities (s.173(1)(a)) the bankrupt failed to keep his books and records and failed to disclose the business transactions in the three year period before bankruptcy (s.173(1)(b)) the bankrupt continued to trade after becoming insolvent (s. 173(1)(c)) the bankrupt failed to account for loss of assets (s. 173(1)(d)) the bankrupt put his creditors to unnecessary expense by frivolous or vexatious defense (s. 173(1)(f)) the bankrupt failed to comply with duties of bankrupt imposed under s. 158 of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (“BIA”), notably his intentional failure to provide proper and complete information to the trustee (s.173(1)(o)) POSITION OF THE PARTIES [10] SCU objects to discharge on multiple grounds, discussed in detail later in this decision. They point to Burroughs intentional failure to provide proper documentation to the trustee and to cooperate in these proceedings. Whereas bankruptcy is intended to assist the ‘honest but unfortunate debtor’, Burroughs, they suggest, is anything but. The multiple s. 173 grounds, his total disregard and disrespect for the process, his failure to produce books and records, and his abusive nature collectively and more accurately depict him as neither honest nor unfortunate. [11] SCU’s position, briefly stated, is this: it would be unfair and unjust to allow Burroughs to receive his discharge without making sizeable contribution to his creditors. The fact he has no assets should be diminished consideration and they urge me to impose an order requiring payment of the cost award ($12,000) coupled with an order requiring him to consent to judgment in the amount of $50,000 which represents half of their Judgment. [12] SCU cross-examined Burroughs extensively on cattle sales which occurred in the five years prior to bankruptcy. Some of the probing was designed to assist SCU sort out whether it had security over the cattle and what happened to the proceeds. By fiat of November 24, 2008 declined to make any order directing production of the records sought. [13] SCU contends that Burroughs’ should be held accountable for his actions and not be permitted to simply hide behind his exempt farm assets. This bankrupt should be forced to give up farming and ranching because it has become losing proposition for him and at this point simply ‘lifestyle’ choice. Finally they suggest he has ability to earn substantial off-farm income if forced to do so by sizeable order. [14] When the matter first came before me, the trustee simply sought conditional order limited to the balance owing for trustee fees. The trustee’s recommendation changed following receipt of Burroughs’ income and expense statements for the intervening period. Based on family of two, and having regard to Burroughs’ net income and the Superintendent’s Standards, the trustee recommends conditional order of discharge in the amount of $188 per month 12 months for total of $2,256. [15] The trustee found no assets available for creditors. What Burroughs owns is either encumbered or exempt, including the cattle. The trustee took no exception to Burroughs having sold cattle in the year preceding bankruptcy because it simply amounted to sale of inventory in the ordinary course of business. Furthermore, the trustee maintains that the BIA imposes no duty on the trustee to examine Burroughs’ farming records in the five year period preceding bankruptcy. [16] In more general terms, the trustee found Burroughs evasive, uncooperative and un-attentive to his duties under the BIA and at times verbally abusive. [17] Burroughs spoke strongly and passionately on his own behalf. He claims to have been insolvent since 2002, not of his own doing but because of the combined forces of drought and the BSE crisis. To illustrate, he says he purchased cattle for $1,000 per head prior to the BSE crisis but can only sell them now for $200. Not only had the market bottomed out, but because of drought he was forced to purchase cattle feed at roughly $500 annually per animal simply to keep them alive and his farming operation going. In short, it was losing proposition with no easy off-ramp even if he wanted to cease farming. [18] When he first came before me Burroughs was working in the oil patch earning $19 per hour. He described his tenure there as ‘shaky’. He supplements his income with odd jobs here and there to earn cash for basic necessities and he farms the home quarter which is in the throws of foreclosure proceedings. He struggles to stay ahead of those proceedings and to keep his farming operation alive, however finds the cost of doing so consumes most of his off-farm income. [19] Burroughs resists any form of conditional order claiming to struggle just to make ends meet. At the time of hearing he was earning $2,300 net per month with $1,000 of that applied towards his mortgage in an attempt to retain the land. Burroughs admits to also paying off debts owed to neighbours and self-financing his farming operation out of his monthly income. Whether these debts were pre or post bankruptcy was not explained by Burroughs, nor explored by the trustee or SCU. Finally he blames SCU and his own bankruptcy proceedings for his on-ongoing struggle to hold down job and his employment uncertainty. [20] The bankrupt lives very frugally. His home lacks electricity or propane. He claims to work from sunrise to sunset with no time off. He wishes to start over and put this mess behind him and to once again build up his farm operation. [21] Subject to the limitations imposed by s. 172(2), there is wide judicial discretion with regard to the type of order which may be imposed on discharge. If s. 173 fact is proven, though, an order of absolute discharge is unavailable to the bankrupt and the range of discharge orders is limited to conditional, suspended, or combination or both, or in some circumstances an outright refusal of discharge. The onus is on the objecting creditor to prove the existence of s. 173 fact if it is not otherwise reported by the trustee. (Houlden and Morawetz, The 2009 Annotated Bankruptcy and Insolvency Act, (Toronto: Carswell, 2007) at p. 816). [22] now turn to the grounds of objection advanced by SCU. Section 173(1)(a) assets not .50 cents on the dollar [23] The trustee’s report does not report on this fact, consequently am left to form an opinion based on the Statement of Affairs and the Claims Register. Applying the former, there’s no question that Burroughs’ assets were less than .50 cents on the dollar compared to his unsecured debt at the time of assignment, however, as case law suggests, asset value is to be determined at the time of discharge (Re Pehlke (1939), 1939 CanLII 397 (ON SC), 20 C.B.R. 415). This makes information from the Claims Register (October 2008) and the trustee’s s. 170 report pertinent to this consideration. [24] These documents reveal admitted unsecured claims of $139,866 against realized assets of $408 with further anticipated receipts of $1,250. If this information is the appropriate measure for purposes of s. 173(1)(a), then, unquestionably, this ground has been met. The onus shifts to Burroughs to satisfy the Court that his situation has arisen from circumstances beyond his control. This he failed to do other than to point in very general terms to the combined effect of drought and BSE which had occurred five or six years prior to his assignment. Unfortunately, these events occurred too many years prior to his assignment to satisfactorily explain his present circumstance and therefore conclude that he has failed to meet the onus. Section 173(1)(b) and (c) failure to keep books and records and continuing to trade after becoming insolvent [25] These next two grounds failure to keep books and records and continuing to trade after becoming insolvent were thoroughly explored by SCU in cross-examination. have no hesitation finding Burroughs to be totally inept bookkeeper. By his own admission, buttressed by the trustee’s observations, his business records were in state of total disarray. His practice was to simply throw everything (receipts, contracts, bills etc) into box or garbage pail until such time as his mother could retrieve them and organize his financial affairs. Prior to his mother’s involvement, his farm and personal accounts were handled by bookkeeper who declines to have anything further to do with Burroughs or to assist with his disclosure duties. [26] However, as Burroughs professes to be rancher, must consider s. 173(2) of the BIA which provides: 173(2) Paragraphs (1)(b) and (c) do not apply in the case of an application for discharge by bankrupt whose principal occupation and means of livelihood on the date of the initial bankruptcy event was farming or the tillage of the soil. [27] ‘Farming’ is undefined in the BIA however notice is taken of the breadth of the definition in other legislative schemes. [see for example: The Saskatchewan Farm Security Act, S.S. 1988-89, c. S-17.1, s. 2(1)(g)]. On his Statement of Affairs Burroughs describes himself as rancher/ truck driver, and although no evidence was led as to whether ranching was his principal occupation, decline to make any finding on this ground in the absence of any evidence, and in any event find it unnecessary to do so given my findings on the other grounds. Section 173(1)(d) failure to satisfactorily account for any loss of assets [28] Burroughs was extensively cross-examined on the fourth ground failure to satisfactorily account for any loss of assets or for any deficiency of assets to meet the bankrupt’s liabilities. SCU contends that some of its loans were secured by cattle owned by Burroughs and that in the five years preceding bankruptcy Burroughs indiscriminately sold cattle without their consent and without applying the proceeds of sale against their loans. [29] Depletion of cattle was explored in two factual respects. First, there was extensive examination on cattle sales occurring between 2001 and 2002 (prior to when he liquidated his herd), application of those proceeds, and whether SCU held security over that cattle. The trustee expressed no concern over these transactions pointing to the fact they occurred well before Burroughs’ assignment and consequently were beyond his reach. SCU unsuccessfully sought an order directing the bankrupt to make full disclosure of cattle sales within this time frame. [Fiat November 24, 2008] [30] SCU cross-examined on second series of cattle transactions which arose from what Burroughs describes as his ‘cow/calf operation’. This operation consisted of yearly pattern of birthing calves in the spring, raising and feeding them over the ensuing months, and subsequently selling the calves each fall. He said the proceeds were applied towards secured loan with feeder/ breeder co-op with the balance used to cover expenses and hopefully generate profit. This was his usual practice over the years with exception in 2007/08 when he delayed sale until February 2008 in an attempt to take advantage of an improved market. SCU asserted security interest over the equity. The trustee reports to having thoroughly reviewed Burroughs cattle and cow/calf operation and was satisfied his remaining herd was exempt and not available for the benefit of his creditors. [31] In circumstances of significant asset depletion without corresponding satisfactory explanation, this ground has been applied. Re Schreiner (1998), 1998 CanLII 13960 (SK QB), C.B.R. (4th) 135 is case where over 200 head of cattle were inexplicably unaccounted for. The trustee commissioned detailed analysis of cattle transactions by reputable accounting firm which in turn formed the basis of his s. 170 report. In those circumstances, the court readily found s. 173(1)(d) to have been established. [32] am satisfied s. 173(1)(d) does not apply to Burroughs’ pattern of breeding and raising cattle with view to selling the calves in the same year. Burroughs’ practice simply constitutes the routine turn over of inventory in the normal course of his farming operation. It makes little sense to fault bankrupt for selling inventory in the normal course when it’s part of the business operation itself and done for purposes of earning livelihood in recognized, routine way. Intentional depletion or hiding assets is another matter entirely however nothing in the evidence points in that direction. Section 173(1)(f) of the BIA creditors put to expense by frivolous or vexatious defense [33] The next ground of objection to discharge is framed around s. 173(1)(f) of the BIA – the bankrupt put his creditors to unnecessary expense by a frivolous or vexatious defense to any action properly brought against the bankrupt. The basis for this ground stems from comments made by the trial judge which bear repeating: [47] the Court is perplexed by Robert’s actions in pursuing his unreasonable positions in light of the mountain of documentary evidence in support of the Credit Union’s position. [34] Houlden and Morawetz, Bankruptcy and Insolvency Law of Canada (4th ed. Looseleaf vol. p. 6-211) summarize the elements of this ground as follows: frivolous defence is one lacking in any legal merit. vexatious defence is one put in to annoy or embarrass the creditor. The fact that the debtor filed for bankruptcy immediately upon judgment being entered against him in defended action does not in itself establish that his defence was frivolous or vexatious...Where debtor defended an action by large creditor by setting up esoteric defences in an attempt to obtain settlement of the claim, these actions were found to constitute frivolous and vexatious defence…[citations omitted] [35] In Wolverton Securities Ltd. v. Schemel, 2009 BCSC 1048 (CanLII), 56 C.B.R. (5th) 47, the Court held that defence lacking in legal merit was not necessarily frivolous. Inability to afford legal counsel and refusing to consent to judgment where defendant has bona fide belief in meritorious legal defence does not always or necessarily meet the parameters of s. 178(1)(f). [36] Stancer, Re, 2009 BCSC 398 (CanLII), 53 C.B.R. (5th) 76 is another case where this issue arose. The frivolous and vexatious defence was established in the overall context of sham debt elimination scheme, debt collection spanned over two years, numerous debt elimination documents as well as involvement in class action proceedings against the bankrupt’s creditor. [37] Burroughs’ position on this ground is quite simple. He was self-represented litigant in the SCU action and advanced his defence and counterclaim as best he could with limited grade education. He was entitled to have his day in court and to be heard before an impartial decision-maker. Simply because litigant is self-represented or is insolvent does not mean he or she must fold their position in favour of creditor’s claim. [38] Burroughs concedes mentioning to the trial judge that he would not win, but claims his remarks reflected his self-represented status and were not concession that his defence and counter-claim lacked merit. He was fighting to save his farm albeit in an unorthodox, aggressive and combative manner. hesitate to add that his demeanour before me was much the same and serves to underscore the observations of the trial judge. [39] The trial lasted two and half days on simple debt claim. The trial judge had ample opportunity to assess the merits, review the documentary evidence and hear his position, and in the end she found him to be completely unreasonable and took the unusual step of saying so. The significant award of costs against him reflects her assessment of his argument along with the undue delay and expense incurred by SCU because of his tactics. In the result, find this ground of objection is also substantiated. Section 170(1)(o) failure to comply with duties of bankrupt [40] The final ground of objection failure to comply with duties of bankrupt was advanced by both SCU and the trustee. Considerable deference is given to the trustee’s comments on this score as he was in the best position to assess compliance. Section 158 of the BIA lists the many duties imposed on bankrupts. won’t repeat them here other than to observe that the list is extensive and requires timely cooperation by the bankrupt in concert with the work of the trustee. On this score, the trustee reports Burroughs failed to produce proper records and to assist the trustee to the fullest. More generally, he reports Burroughs to have been abusive and disrespectful. [41] Based on the trustee’s information, conclude that Burroughs was deficient in his duties, consequently the s. 173(1)(o) ground is established as well. TERMS OF DISCHARGE [42] Having found justification on several grounds of objection, am unable to grant Burroughs an absolute discharge by virtue of s. 172(2), and turn now to the appropriate terms of his discharge. [43] Burroughs is 42 years of age. He has one son from previous relationship who does not currently reside with him. He did not indicate if he financially supports his son. He is currently employed with an excavating company earning $20 per hour and working as much as 160 hours per week. In addition, he claims to work other odd jobs although no information was provided about income earned. He also admits to working on the side in some form of barter arrangement with neighbours and friends. As understand it, he provides farm labour in lieu of cash as means of retiring debts owed to them. Neither the odd jobs nor the barter arrangements were factored into surplus income calculations. [44] The trustee recommends the imposition of conditional order for surplus income generated in the past 12 months preceding his application. Within that time frame Burroughs supported his son, girlfriend and her child. The evidence was not clear how long each resided with him, however, conceding family of two over the entire 12 month period, the trustee calculates surplus income to be $2,256. [45] Burroughs pays $1,000 per month on his mortgage and is trying to catch up on mortgage arrears to stave off foreclosure. After making this payment he claims there isn’t much left to cover day-to-day living expenses. All of that said, Burroughs also admits to having paid off equipment loans and debts owed to neighbours. [46] have no doubt Burroughs works hard and lives subsistence life. However, even subtracting his monthly mortgage payment, he still has some funds left with an income level above the Superintendent’s Standard for a family of two. (At this point he is now family of one which places his net monthly income well above the accepted standard.) strongly suspect he’s using much of his monthly paycheque to pay off post bankruptcy debts and finance what remains of his farming operation. [47] SCU seeks an order directing payment directly to it, and not the trustee. No case law was provided in support and no order will be granted along the lines requested. From the point of view of creditors, it [bankruptcy] provides system for the collective execution and equitable distribution of the assets of failing debtor, initiated on voluntary or involuntary basis. …..The property, on being realized, is distributed subject to certain priorities, rateably among those persons to whom the debtor owes money or has incurred pecuniary liability. [Honsberger and Dare, Bankruptcy in Canada, (4th ed,), (Aurora: Canada Law Book, 2009) p. 3] [48] SCU urges the imposition of conditional order of discharge requiring Burroughs to consent to judgment. This form of order is made sparingly and only in appropriate circumstances. The situation before me does not lend itself to this form of disposition. [Houlden and Morawetz, The 2009 Annotated Bankruptcy and Insolvency Act, p. 806] Alternatively SCU seeks sizeable conditional order as anything less, they argue, would be unfair and unjust to creditors. Specifically, they seek payment in full of costs fixed by the trial judge coupled with conditional order equal to half of their total judgment. [49] This is very difficult case because of the conflicting interests at play, namely the creditors’ interest in obtaining fair recovery on their sizeable debts, the bankrupt’s need to be rehabilitated, and safeguarding the integrity of the bankruptcy system itself. [50] Having carefully considered all of the facts, the existence of multiple s. 173 grounds, Burroughs’ personal circumstance and his ability to pay, I find it appropriate to impose a conditional order in the amount of $8,000 in addition to surplus income. Burroughs should be able to comply with this order at his present income level within three years which is considered an acceptable period of time for a bankrupt to be burdened with a conditional order. Burroughs is resourceful, hard working person with ability to earn off-farm income to satisfy this order which in turn will release him from all claims provable in this bankruptcy. [51] Accordingly, an order shall issue granting Burroughs his discharge from bankruptcy conditional upon payment of the sum of $10,250 composed of $2,250 for surplus income and a further $8,000 for payment to his estate for the benefit of his creditors. This sum shall be paid at not less than $300 per month, with right of pre-payment. Upon compliance, an absolute order of discharge shall issue. DATED at the City of Regina, in the Province of Saskatchewan, this 8th day of February, 2010. Registrar in Bankruptcy

The Bankrupt applies for his discharge from bankruptcy. The discharge is opposed by the Credit Union and the trustee. The Bankrupt was a cattle farmer. He financed this undertaking principally through the Credit Union. HELD: The Bankrupt will be discharged conditional upon payment of $8,000 in addition to surplus income of $2,250 to his estate for the benefit of his creditors. He should be able to comply with this order within 3 years. 1) The bankrupt is 42 years old and a first time bankrupt. He is employed with an excavating company and earns $20 an hour and works as much as 160 hours per week. He is paying $1,000 per month on his mortgage and is trying to catch up on mortgage arrears to stave off foreclosure. He is working hard and living a subsistence life. However, he still has some funds left with an income level above the Superintendent's Standard for a family of two. 2) His assets are less than $.50 on the dollar. His creditors were put to the unnecessary expense by his frivolous or vexatious defence of their claim and he failed to comply with the duties of a bankrupt by failing to produce proper records and assist the trustee to the fullest. He has been abusive and disrespectful throughout.

6_2010skqb51.txt

nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2011 SKQB 134 Date: 2011 03 31 Docket: N.J. 34 of 2010 Judicial Centre: Regina BETWEEN: HER MAJESTY THE QUEEN and MICHAEL JOHN CHUDYK Counsel: Dana J. Brûlé for the Crown Saul L. Schachter for the accused JUDGMENT GEREIN J. March 31, 2011 [1] The accused was presented with an indictment containing five counts. At the arraignment the Crown stayed counts and 3. The accused then pled guilty to these three counts: COUNT 2 THAT HE, the said MICHAEL CHUDYK between the 25th day of November, A. D. 2006 and the 1st day of February, A. D. 2007 at or near Regina, in the Province of Saskatchewan, did fraudulently and without colour of right, use credit card data that would enable a person to use a credit card or to obtain the services provided by the issuer of a credit card to credit card users contrary to Section 342(3) of the Criminal Code. COUNT 4 THAT HE, the said MICHAEL CHUDYK between the 16th day of February, A. D. 2006 and the 19th day of August, A. D. 2007 at or near Regina, in the Province of Saskatchewan, did by deceit, falsehood or other fraudulent means, defraud Saskatchewan Telecommunications of services and goods, of a value exceeding five thousand dollars, contrary to Section 380(1)(a) of the Criminal Code. COUNT 5 THAT HE, the said MICHAEL CHUDYK between the 16th day of February, A.D. 2006 and the 19th day of August, A. D. 2007 at or near Regina, in the Province of Saskatchewan, did fraudulently personate various persons, living or dead, with an intent to gain advantage for himself or another person, contrary to Section 403(a) of the Criminal Code. [2] At the time of sentencing the accused had been in custody on the subject charges for two years and eleven months. It was decided that a fit global sentence would be eight years and six months. Credit of four years and nine months was given for the time spent in custody. In the result, the following sentences were imposed: COUNT 2 Incarceration for two years and three months. COUNT 4 Incarceration for one year and six months, consecutive to the preceding sentence. COUNT 5 Incarceration for two years, concurrent with the preceding sentences. Payment of the surcharge was waived as the accused had no income and would not have any for some time. What follows are the reasons for the sentence imposed. [3] In this case the conduct of the accused is most unusual, even bizarre, as it occurred while the accused was in prison. It extended over 18 months; involved many separate acts; and required participation by several individuals with the accused as the co-ordinator. There were two schemes which were somewhat complex in their execution, but which can be identified quite simply as follows. [4] Commencing in February, 2006, the accused opened 52 false accounts with SaskTel. They were opened in fictitious names, 23 of which were obtained from obituaries. The accused then used the telephone accounts to obtain the services of SaskTel. This included upwards of 835 telephone calls, some of which were one to two hours in duration. When the bills were sent throughout Saskatchewan for the services rendered, there was no person responsible to pay them. As result, SaskTel suffered loss of $25,915.44. [5] The second scheme involved credit cards. Accomplices outside the prison provided to the accused particulars of various credit cards. He would then access telephone account to order goods to be delivered to third party and purported to make payment by way of the fraudulent credit cards, using the particulars earlier provided. variety of goods were purchased, including furniture, appliances and three vehicles. The credit card companies absorbed their clients’ losses which amounted to $22,695.18. Thus, the total loss from the two schemes was $48,610.61. It would have been greater but for the fact that some of the larger items were recovered. THE ACCUSED [6] The accused is 47 years of age with an education of grade 12 equivalent. He is the father of three boys whom he has not seen for long time. No employment history was presented. This is not surprising since he has spent most of the last 30 years in jail. [7] At the sentencing hearing, the accused apologized for what he had done. must admit that am skeptical about his sincerity. He advised that he personally received no financial benefit. This is probably so, but the reality is that he inflicted huge financial losses, to say nothing of police investigation involving 15 police officers who expended almost one and one-half years of working hours. He further advised that he is afflicted with cancer and when released from prison, he hopes to reside with his family in Edmonton. He stated that he was willing to make restitution, but view that as unrealistic. [8] The accused has an incredible criminal record. It is lengthy and continuous, commencing in 1979 and running to the present. There are 121 convictions, 39 being for property offences, 50 being for fraud and several for non-compliance with court orders. The longest sentence was in 1994 when he was incarcerated for 27 months. In 2003, he was incarcerated for 18 months. It appears that in 2007, he was sentenced to time served which was 56 months. Most frequently, his sentences were to months followed by probation. Over the years, he has not displayed any desire to reform. [9] In determining what is fit sentence, the following sections of the Criminal Code must be kept in mind: 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: (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) 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. [10] Crown counsel referred me to these cases: R. v. Beyer (1997), 1997 CanLII 22969 (MB CA), 118 Man. R. (2d) 103 (C.A.); R. v. Armstrong, 2005 BCPC 690 (CanLII) (B.C. Prov. Crt.), [2005] B.C.J. No. 3049 (QL) and R. v. Solowan, 2008 SCC 62 (CanLII), [2008] S.C.R. 309. Defence counsel referred me to these cases: R. v. Ursel (1997), 1997 CanLII 12512 (BC CA), 117 C.C.C. (3d) 289 (B.C.C.A.); R. v. Drake 2007 BCCA 204 (CanLII), 244 B.C.A.C. 108 (B.C.C.A.); R. v. Malinowksi, 2007 SKCA 33 (CanLII), 293 Sask. R. 172 (C.A.); R. v. Meger 2009 SKCA 47 (CanLII), 324 Sask. R. 267 (C.A.) and R. v. Kelter 2010 BCCA 252 (CanLII), [2010] B.C.J. No. 1124 (QL). [11] The two that were most helpful were R. v. Beyer and R. v. Armstrong for the circumstances of the offences and the accused most closely matched those in this case before me. In Beyer, the global sentence was nine years and in Armstrong, it was eight years. The other cases are distinguishable on their facts. [12] The accused has been on remand for two years and eleven months. It has been the common practice in this jurisdiction to credit custody on remand at double time. See R. v. McArthur, 2010 SKCA 90 (CanLII), 359 Sask. R. 144 (C.A.); R. v. Hathway 2008 SKQB 480 (CanLII), 327 Sask. R. 129 (Q.B.) and R. v. E.E.D. 2007 SKCA 99 (CanLII), 204 Sask. R. 192 (C.A.). In the presenting case, the Crown suggests credit of one for one; whereas the defence suggests credit of two for one for the full remand time. reject both. [13] The period of time in the years 2008 and 2009 that the accused spent on remand were brought about because of the time constraints which necessarily are a part of the process. That time amounted to 1,336 days and cannot be attributed to the accused. For that period, he should receive a credit of double time. [14] There was further remand time of 393 days in the years 2010 and 2011. However, that delay was largely the doing of the accused. Accordingly, the credit should be one for one, or put otherwise, the time actually served on remand. In the result, there should be a credit of four years and nine months and the global sentence should be reduced accordingly. The discretion to grant the credit remains with me despite s. 719(3) and (4) of the Criminal Code because the offences were committed and the charges brought before enactment of the section. ANALYSIS [15] The gravity of the offences is very high because of a number of aggravating circumstances. The most obvious one is the dollar value of the goods and services realized and the total deprivation inflicted. Yet there are several other things to be taken into account. [16] There clearly was pre-meditation and careful planning in advance. Several other people were implicated in the criminal enterprise. The two schemes were pursued over a lengthy period of time and involved scores of transactions. There were many individuals and businesses subjected to embarrassment and anxiety. [17] Then there is the place from which the crimes originated. The accused was imprisoned, but this had no effect on him. Pursuit of the nefarious activities demonstrated real arrogance on the part of the accused and real disdain for the administration of justice. [18] The criminal record of the accused confirms the deplorable state of his attitude. For all of his adult life, he appears to have supported himself through crime. It is not surprising that Crown counsel suggests rehabilitation is not relevant. However, do not agree. [19] There are cases where there is little hope of rehabilitation and reform and looking at this case objectively, it is one of them. However, one must not abandon all hope, although it may be minimal. In any event, one of the objectives of sentencing, as stated in the Criminal Code, is rehabilitation. While keep that in mind, it has low priority. [20] I am also mindful that the accused pleaded guilty. While it was long time in coming, it has avoided lengthy trial and the attendant expense. What is even more important, it has eliminated the necessity that many people testify and go through the consequent discomfort. For that, the accused deserves credit. [21] The subject of parity creates something of problem. The circumstances of the misconduct as coupled with those of the accused are unique. As result, there is not large body of cases to serve as comparables. However, the general principles of sentencing remain and did have the assistance of the two cases cited above. [22] have concluded that there should be consecutive sentences. However, that has not brought about combined sentence which is unduly long or harsh taking into account all of the circumstances. [23] In the end, it is denunciation and deterrence, both of the accused and others, which must be emphasized and obtain a priority. Any other approach would being the administration of justice into disrepute. [24] Upon consideration of all the circumstances of both the offences and the accused, and for the reasons stated, it was concluded that the disposition outlined at the outset was fit and appropriate. J. W. F. GEREIN

The accused plead guilty to one count of using credit card data to fraudulently obtain services contrary to s. 342(3) of the Criminal Code, one count of fraud over $5,000 contrary to s. 380(1) of the Criminal Code for defrauding Sasktel of telephone services and one count of fraudulently personating various persons with intent to gain advantage for himself contrary to s. 403(a) of the Criminal Code. The accused was incarcerated at the time that he committed the offences. The accused opened 52 false accounts with Sasktel, at times using names he obtained from obituaries and at other times using fictious names. He then used the accounts to obtain telephone services. The total loss to Sasktel was $25,915.44. The second scheme involved obtaining credit card information from people outside the prison, ordering goods via telephone to be delivered to third party and using the fraudulent credit cards to pay for the items. The total loss to the credit card companies was $22,695.18. The accused was 47 years old and had spent much of the last 30 years in jail. He had 121 prior convictions on his record, mostly for fraud, property related offences and non-compliance with court orders. In addition to the financial losses, huge amount of resources were expended to investigate the accused's activities. He plead guilty. HELD: A fit sentence in global terms for these offences would be 8 years and 6 months. The accused was given credit for 4 years and 9 months for the time he spent in custody. The accused was sentenced to 2 years and 3 months for the s. 342(3) offence, 1 year and 6 months consecutive for the offence under s. 380(1) and 2 years concurrent for the personation offence under s. 403(a). The Court gave the accused double credit for remand time that was the result of system delays, but imposed 1:1 credit for the 393 days of remand time that were attributable to the accused. The Court held that the high dollar value involved, the pre-meditation and planning involved, the lengthy period of time over which the accused committed the offences, the number of transactions involved and the fact that the accused committed these offences from prison were aggravating factors. In mitigation, the accused offered a guilty plea. The primary factors to be emphasized were denunciation and deterrence.

e_2011skqb134.txt

THE COURT OF APPEAL FOR SASKATCHEWAN SASKATCHEWAN TRANSPORTATION COMPANY, (Defendant) APPELLANT, LEO LARSEN (Plaintiff) RESPONDENT, CORAM: The Honourable Mr. Justice Cameron The Honourable Mr. Justice Sherstobitoff The Honourable Madam Justice Jackson COUNSEL: Mr. T. J. Waller for the Appellant, Mr. G. W. Semenchuck Q.C. for the Respondent. DISPOSITION: Appeal Heard: September 14, 1993. On Appeal From: QB 4525/91 J.C. Regina Appeal File: 1445 Reasons: September 22, 1993 Appeal Allowed in Part: September 14, 1993 Reasons by: The Honourable Mr. Justice S. Cameron In concurrence: The Honourable Mr. Justice Sherstobitoff and The Honourable Madam Justice Jackson CAMERON J.A. This is an appeal from an assessment of damages in a wrongful dismissal action brought against Saskatchewan Transportation Company by Leo Larsen, its former President and Chief Executive Officer. Saskatchewan Transportation Company, or STC as it is commonly known, is provincial Crown corporation. It admitted to dismissing Mr. Larsen without cause or notice, in breach of its contract of service with him. In consequence Mr. Larsen obtained a judgment for damages against the corporation in the basic amount of $165,000, an amount it contends is exorbitant. For the most part we can find no tenable basis for concluding that the award of damages was inordinately high. The trial judge assessed the damages on the general principles, first, that the object of these awards is to compensate for the loss of income sustained in consequence of the wrongful dismissal; second, that their measure is prima facie the amount that would have been earned had the employment continued, subject to deduction of such amounts as in the ensuing months are either earned or should have been earned in light of the duty upon persons suffering such losses to keep them to minimum; and third that The Crown Employment Contracts Act, S.S. 1991, c. C- 50.11, had set aside the contractual provisions for payment on dismissal contained in all "Crown contracts", including those of Crown corporations, and directed instead that payment be determined in accordance with common law principle. With that in mind he calculated Mr. Larsen's loss of income on the following premises: (i) that Mr. Larsen had been employed by STC at salary of $110,000 year; (ii) that he was entitled at common law to eighteen months notice of termination having regard for the fact, among others, that he had been in the employ of the Crown in the right of the Province for about decade; and (iii) that he had met his legal duty to mitigate but had not succeeded in reducing his loss. STC took issue with these premises, contending the trial judge had erred in relation to each of them. (i) The salary. We do not agree, as STC suggests, that Mr. Larsen's loss of income should have been calculated on the premise his annual salary was $102,000, not $110,000. His contract read thus: "In consideration of your services you will be paid an annual base salary equal to $110,000.00, less: a) STC contributions to your pension plan; b) STC car allowance or the annual value of car provided to you; and c) the annual value of the CEO Benefit Package provided to you by STC." The term "base salary" meant that which would be paid him exclusive of such additional, performance-based amounts as he might earn under other terms of the contract. For the purpose of the "base salary" provisions of the contract, the annual value of the pension contributions, car allowance, and so on worked out to some $8,000. In our opinion these provisions constituted promise by STC to pay Mr. Larsen basic salary of $110,000 year made up of: (i) money in the amount of $102,000; and (ii) money or benefit to the value of $8,000. That being so, and since STC broke its promise, thus depriving Mr. Larsen of the opportunity to earn such salary, we are of the view the trial judge did not err in employing the figure of $110,000 in determining the loss of income and hence the damages in this respect. (ii) The period of notice. STC contends that the trial judge went wrong on two counts. First he attributed far lengthier period of service to Mr. Larsen than was appropriate to the determination of this issue; he should have attributed one year of service to Mr. Larsen, not ten. Second he exceeded by at least 50% the period of notice usually found to be appropriate in circumstances such as these; at best he should have found Mr. Larsen entitled to twelve months notice of termination, not eighteen. The basic facts are these. Mr. Larsen was forty-seven year old commerce graduate and chartered accountant who, before being dismissed by STC, had successively served three provincial Crown corporations over period of about ten years. On February 1, 1982 he left the employ of Hudson Bay Company in Winnipeg and went to work for Saskatchewan Housing Corporation as its Executive Director of Finance and Administration. Some three years later, having in the meantime risen to vice- presidency of that corporation, he was taken on by Saskatchewan Economic Development Corporation as its Vice-President of Finance and Administration. He remained with SEDCO for about five years. Then on December 1, 1990, he was engaged by STC as its President and Chief Executive Officer for term of three years. He served in that capacity until November 22, 1991, when following change of government in the Province, he was let go. Under the terms of his contract with STC, Mr. Larsen was entitled on "Involuntary Termination" to severance payment "equal to twelve (12) months salary and benefits plus an additional two (2) months salary and benefits for each year of service calculated using February 1, 1982 as the beginning date...." This was capped with year maximum. These terms were obviously founded on the whole of his previous Crown corporation service and would have entitled him in effect to two years notice of termination had it not been for The Crown Employment Contracts Act. Since the Act set aside those terms of the contract and since the Province's Crown corporations are distinct legal entities, independent of one another, STC requested the trial judge, when determining the period of notice to which Mr. Larsen was entitled at common law, to disregard all but Mr. Larsen's year of service with STC. Any other approach, it said, would be inconsistent with precedent, referring to Nupdal v. SGI (Sask. Q.B., March 15, 1984, per Malone J.) and Richardson v. SEDCO, (1985) 1985 CanLII 2770 (SK QB), 41 Sask. R. 236 (Sask. Q.B., per McIntyre J.). The trial judge rejected that request and took the whole of Mr. Larsen's Crown corporation service into account, saying that "When [in February, 1982] Larsen accepted Ernst Young's invitation to leave Hudson Bay Company for service in the Government ranks of Saskatchewan, he traded career in the private sector for one in the civil service. The evidence is convincing: Larsen at the time of his dismissal was career civil servant, skilled and dedicated." Was this error? Even if it were, and we do not think it was, not in substance at least, too much can be made of it. While undoubtedly relevant, length of service is but one of several considerations to be taken into account in determining fit period of notice in cases such as these. And it is to be taken into account not in isolation but in conjunction with other considerations, including the nature of the employment. Hence the weight or comparative importance of this consideration can vary from case to case. In this case we are dealing with the president and chief executive officer of major Crown corporation. This is not unique employment, but it is comparatively rare. There are not many positions of that nature available to persons here or even elsewhere. That being the case, does it much matter whether Mr. Larsen had been at this post for one year rather than three, or two instead of five or even ten? Does it much matter, that is, to the period of time he ought to have had to find comparable employment. We are not suggesting his length of service is of no moment, but we are saying that too much can be made of it if viewed in isolation. That general observation aside, the severance terms of Mr. Larsen's contract with STC were arrived at, as noted, with an eye to his earlier service. Indeed they were inserted on the premises he had been in the service of the Crown since February 1, 1982, the day he joined Sask. Housing, and was moving up once again to more senior level of service. This is understandable. These corporations are agents of the Crown for all their purposes. And so Mr. Larsen was taken to have been employed by the Crown throughout the period, first by one of its agents, then by another, and finally by STC. That was the intention of the parties. To be sure, these terms of the contract were swept away by The Crown Employment Contracts Act. It does not necessarily follow, however, that his prior service to the Crown through one or another of its agents fell to be disregarded in making the determination at issue. In the absence of an express provision to that effect in the statute, and none appears there, we cannot think the legislature so intended. The cases brought to the attention of the trial judge were distinguishable on these and other grounds, and we cannot say that he went wrong on the point under discussion. Nor can we say that the period of notice to which the trial judge found Mr. Larsen entitled was unreasonable. We might have settled on something less had we been trying the case, but judging from such other cases as Herbison v. Intercontinental Packers, (1984) 1983 CanLII 2398 (SK CA), 29 Sask. R. 296 (Sask. C.A.) and Wankling v. Saskatchewan Urban Municipalities Association, (1989) 1989 CanLII 4625 (SK QB), 75 Sask. R. 252 (Sask.Q.B.), the period chosen by the trial judge was within the range, albeit at the top of it. But since it was within the range, and since decisions of this kind entail the exercise of fair measure of discretion and ought not to be interfered with lightly, we do not think we should intervene. That then leaves the third of the premises upon which the loss was arrived at, namely that Mr. Larsen had not managed to reduce his loss despite his best efforts to do so. (iii) Mitigation. With respect, we do not wholly agree with the trial judge's treatment of this issue. We agree with his finding that Mr. Larsen had met his duty to mitigate. That finding is amply supported by the evidence. But we have difficulty with his further finding that Mr. Larsen had not managed to reduce his loss of income. The evidence provides little if any support for that finding. According to the evidence, Mr. Larsen landed contract with Saskatoon developer after STC dismissed him. That contract, for the provision of accounting and related financial services at the price of $4000 month and determinable on two weeks notice, was taken up in the name of company, Management Ltd. Mr. Larsen incorporated the company for the purposes of carrying out this and such other contracts of the sort as he might obtain. On incorporation, he and his wife became the sole shareholders of the company. Over the next eight to nine months Mr. Larsen devoted virtually the whole of his time to providing the services called for by this contract, thus earning, to the credit of Management, $33,100. After allowing for expenses (including the cost of Mr. Larsen's going to and from Saskatoon and living there throughout the week, as well as salary of $300 month to Mrs. Larsen for answering the phone and looking after things in Regina while her husband was in Saskatoon) Management netted over $11,000. In other words it netted about $1200 month during this period. But no salary was paid to Mr. Larsen. The net income was simply left to accumulate in the company. The developer was delighted with the service, and Mr. Larson intended to continue with the work into the foreseeable future. Having regard for this evidence and for Mr. Larsen's duty to mitigate his loss of income, STC asked the trial judge to attribute the bulk of the income of Management to Mr. Larsen and to reduce his loss accordingly. The question, which Mr. Larsen must answer to in the circumstances, is why at the very least the net income of the company should not have been attributed to him for the purpose at hand. Conceptually it might be attributed to him on one basis or another, but that is not the issue. He resisted the attribution on pragmatic grounds, arguing that the company had not in fact paid him any salary; that there was no guarantee the company was going to earn profit; that it needed working capital; that it was mere fledging; and so on. Finally he contended that attributing even the net income to him for the purpose of mitigation would be inconsistent with Foster v. MTI Canada Ltd. (an unreported decision of the Ontario Court of Appeal dated July 16, 1992). We are not persuaded by these arguments. Foster's case was decided on its own facts, and on the facts in this case we are satisfied that the trial judge erred. Bearing in mind Mr. Larsen's duty to STC to mitigate his loss, and having regard for all of the circumstances surrounding this matter, the trial judge ought to have found that Mr. Larsen had in fact managed to mitigate his loss. There is simply no sound reason for holding otherwise. That leaves only the extent of the mitigation. We can see no good reason for going behind the expenses, as STC invited us to do on the ground they were inflated for the purpose of shielding income from the obligation to mitigate, but we can see no good reason either for not attributing the net income of about $1200 month to Mr. Larsen for the whole of the period at issue, past as well as prospective. And so we have decided to reduce his damages by some $16,000 to $17,000. Let us say $16,500. It follows, then, that the appeal will be allowed to the extent of reducing this head of damages from $165,000 to $148,500. Otherwise the judgment at trial will stand. There will be no order for costs on the appeal.

On appeal from 106 SaskR 277. 47 year old respondent, former President and Chief Executive Officer of STC, had been awarded $165,000 (18 months) for wrongful dismissal. He had successively served three Crown Corporations over a period of ten years. On appeal held the award of damages was not inordinately high. The court however reduced the damages by $16,500 as it disagreed with the trial judge's determination regarding mitigation of damages. Appeal allowed to the extent of reducing the damages from $165,000 to $148,500.

d_1993canlii6612.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2017 SKQB 388 Date: 2017 12 21 Docket: SUR 130 of 2016 Judicial Centre: Battleford ESTATE OF EDNA MAY JONES Counsel: Donna Jones on her own behalf Nicholas J. Stooshinoff, Q.C. for Kent Jones and Rodney Argue Evan Jones on his own behalf FIAT SCHERMAN J. December 21, 2017 Introduction [1] The applicants Kent Jones [Kent] and Rodney Argue [Rodney] ask the Court to remove the respondent Evan Jones [Evan] as an executor of the estate of Edna May Jones. Their grounds are that Evan has brought an application that effectively challenges the validity of the Will he is presently an executor of and he is refusing to co-operate in taking the steps necessary to administer the estate and carry out the directions contained in the Last Will and Testament [Will] of Edna May Jones as admitted to probate. The Factual Background [2] On July 13, 2016, Evan, Kent and Rodney filed with the Court an application for grant of probate to them in respect of an October 15, 2015 Will of Edna May Jones [Edna], who died on November 19, 2015. Evan and Kent are sons of the late Ms. Edna Jones and Rodney is nephew. The three were designated in the Will as executors. Each swore an affidavit stating they believed the Will to be the Last Will and Testament of Edna and that they would faithfully administer the property and legacies contained in the Will. [3] The Will directed, inter alia, that: i. Ms. Edna Jones’ interest in the NW 20-26-16 W3 be transferred to Kent; ii. the NW 29-24-14 W3 be transferred to Evan and the NE 30-24-14 W3 be transferred to Kent with direction to the executors that prior to making the transfers they should determine the values of these parcels and “may make such subdivisions or payments to equalize the values as may be required to ensure each gets the same value and that access to my son Kent Jones’ other quarter is maintained”; iii. specific equal financial bequests be made to Ms. Edna Jones’ grandchildren; and iv. the remainder, rest and residue of her estate was to be divided equally between her two sons, Evan and Kent. [4] The schedule of assets filed with the application for probate showed that Edna had one-third interest in the NW of 20. Kent had previously purchased the other two-thirds interests in the NW of 20 from two aunts (Edna’s sisters) and had been farming it, renting Edna’s one-third interest. This schedule of assets valued the NW of 29 at $181,000 and the NE of 30 at $301,000. Evan’s home site was located on the NE of 30. [5] Some financial bequests to grandchildren have been made and partial distributions to Kent and Evan have been made. At some point differences arose between Kent and Evan, the catalyst for and details of the differences am not able to determine from the evidence before me. However, an understanding of such differences is not necessary for, and indeed has no relevance to, the determinations make. [6] On October 13, 2017, Evan and his wife, Donna Lee Jones [Donna], filed notice of application with the Court seeking revocation of the grant of probate, and an order that the Will be proven in solemn form and related relief. Among the allegations made in support of this application are that: a. Edna lacked testamentary capacity when she executed the Will; b. fraud/forgery of the Will and the testator’s signature; and c. suspicious circumstances. [7] Faced with this, Kent and Rodney brought an originating application seeking, inter alia, an order removing Evan as an executor. This application is based upon the grounds that: i. by challenging the validity of the Will and seeking revocation of the grant of probate, Evan is in conflict of interest position and in breach of the undertaking he gave to the Court in his affidavit in support of the grant of probate to faithfully administer the property of the testator and the legacies contained in the Will, and ii. by his words and actions Evan has made it clear that he is not prepared to carry out the directions contained in the Will and he is refusing to co-operate with the other executors in taking steps necessary to properly administer the estate. [8] On December 14, 2017, these applications came before me in Chambers in Battleford. Donna took the position that she had status and sought to represent herself and her husband Evan on their application and in opposition to the application brought by Kent and Rodney. She based her position that she could represent and speak for Evan on the grounds that she had obtained power of attorney from Evan. [9] held that while the power of attorney may give her the power to make decisions for Evan in respect of legal matters, including instructing counsel, she was not entitled to represent Evan before the Court. In this respect relied upon s. 30 of The Legal Profession Act, 1990, SS 1990-91, L-10.1, which directs that no person other than member of the Law Society of Saskatchewan holding current practice certificate may practise at the bar of any court in Saskatchewan or commence, carry on or defend any action or proceeding in any court. [10] heard submissions by Donna in respect of whether she herself had status as proper party to the proceedings and held that since she was neither named beneficiary under the Will nor potential beneficiary in the event of an intestacy she had no status or right to be party to the proceedings. struck her out as an applicant in the notice of application that she and Evan had filed. [11] Having held that Donna had no status and that she was not entitled to represent Evan on the applications, the Court then contacted Evan by telephone so that he could make submissions on his own behalf. In respect of his application to revoke the grant of probate in respect of the Will, informed Evan that had concerns that the materials he filed suggested profound misunderstanding of the requirements at law to obtain revocation of probate and to have proof in solemn form ordered. suggested he may wish to consider obtaining legal advice. Evan advised the Court he was requesting an adjournment of his application so that he could seek legal advice. Counsel for Kent objected to the granting of such an adjournment. Since Evan was unrepresented and to give him an opportunity to put his best case forward, granted the adjournment sought and ordered Evan’s application be adjourned sine die returnable on 14 days’ notice. [12] then proceeded to hear submissions from Mr. Stooshinoff, counsel for Kent and Rodney, on their application to remove Evan as executor and Evan’s submissions in opposition to that application. The Applicable Law [13] This Court has the jurisdiction to remove an executor of an estate both pursuant to its inherent jurisdiction and pursuant to s. 17 of The Administration of Estates Act, SS 1998, A-4.1 [Act]. See Ocean Man Trust, Re (1993), 1993 CanLII 6781 (SK CA), 113 Sask 179 (CA); Figley Figley, 2012 SKCA 36 (CanLII), 393 Sask 44; and Sinclair Sinclair, 2013 SKCA 123 (CanLII), 427 Sask 36. [14] In the Court of Queen’s Bench decision of Whitworth Estate Whitworth, 2016 SKQB 369 (CanLII) [Whitworth], Mills J. stated, at para. 5, that s. 17 of the Act is the basis most applicants rely on to remove administrators or executors. He further stated that although “[n]o definition of ‘other special circumstances’ has been provided, however, it would seem obvious that the considerations respecting removal of an executor under the inherent jurisdiction of the Court would be included in the concept of ‘other special circumstances’”. He also stated as follows: In Sinclair and Figley the Court spoke to the factors to be considered in determining whether an executor should be removed from administering an estate. Those factors included: (1) Mistake, neglect of duty or inaccuracy of conduct of trustees sufficient to endanger the trust property; (2) Want of honesty; (3) Want of proper capacity to execute the duties of executor; (4) Want of reasonable fidelity; (5) The exercise of discretion to remove an executor is not to be undertaken lightly; (6) The overriding duty of the Court is to ensure the administration will be properly executed; and (7) The ultimate concern must be for the welfare of the beneficiaries. [15] In his decision in Hazlehurst Estate Re, 2007 SKQB 343 (CanLII), 301 Sask 121, Mills J. held that where there is dissension or disagreement between the executors as to the manner in which estate assets are to be administered and there seems no prospect for settling those differences that the existence of such dissension or disagreement is basis for removing an executor or trustee. Analysis [16] I find that the circumstances of this case constitute “special circumstances” within the meaning of s. 17 of the Act and that, as stated by Mills J. in Whitworth, the overriding duty of the Court to ensure the administration will be properly executed consistent with an ultimate concern for the welfare of the beneficiaries. [17] In his January 4, 2016 affidavit in support of grant of probate, Evan swore he believed the Will to contain the original Last Will and Testament of Edna May Jones and that he would faithfully administer the property and legacies contained in the Will. Now he is by his application and actions refuting those obligations to the estate and the Court and is challenging the very existence of valid will. This places him in profound conflict of interest position. [18] Evan cannot on one hand attack the validity of the Will while at the same time claim right to be an executor of that Will with all of the obligations that entails. As an executor who was given grant of probate, he is obligated to carry out the directions contained in the Will. By making the application he has, he is effectively stating that he is not prepared to give effect to the directions in the Will. The affidavit evidence of Kent and Rodney satisfies me that Evan is refusing to co‑operate in proper administration of the Will. [19] Evan is entitled to challenge the validity of the Will, as he has done in his application, but he is not entitled at the same time to remain as an executor of the Will. Unless and until the grant of probate is set aside and proof in solemn form is ordered by this Court, the grant of probate remains operative and carries with it the obligation of the executors to continue to administer the estate in accordance with the directions of the Will. It is clear that this is something that Evan will not do and thus he must be removed as an executor. [20] There is no evidence before me that suggests that either of Kent or Rodney have acted contrary to their obligations to administer the estate in accordance with the directions contained in the Will. Further, there is no basis to conclude that they will not continue to properly do their duty. [21] I am satisfied that this is a case in which I should exercise my jurisdiction to remove Evan as an executor of the estate of Edna May Jones and I order that he is removed as an executor in the grant of probate ordered by Gabrielson J. on July 20, 2016, and that Kent Jones and Rodney Argue shall continue as executors pursuant to that grant. [22] Having before this Court an application seeking revocation of the grant of probate, and an order that the Will be proven in solemn form and related relief, it is incumbent on Evan to act promptly in respect of his application, should he decide to proceed with that application. While valid grant of probate remains in existence, it is incumbent on the executors to properly administer the estate. [23] With view to balancing the interests of efficient and proper administration of the estate and to give Evan an opportunity to advance his application, direct Kent Jones and Rodney Argue to take no steps to distribute assets of the estate to beneficiaries or otherwise finalize the administration of the estate until after February 15, 2018. This will give Evan an opportunity to bring his application back before the Court for determination. The judge deciding such an application could, if he or she deems it appropriate, extend this direction. If Evan has not given notice to bring his application back before the Court by February 15, 2018, then, subject to further order of this Court, this direction shall expire. [24] My direction for Kent Jones and Rodney Argue to take no steps to distribute assets of the estate or otherwise finalize the administration of the estate until after February 15, 2018, does not operate to prevent the executors from: a. paying outstanding obligations; b. filing tax returns and making payment of tax obligations; or c. selling and transferring title of assets of the estate, with the exception of those parcels of land identified in paras. 2(d) and (e) of the Will. Conclusion and Orders [25] For the reasons set forth above, I order as follows:a. Evan Jones is removed as an executor in the grant of probate ordered by Gabrielson J. on July 20, 2016, and Kent Jones and Rodney Argue shall continue as executors pursuant to that grant;b. Kent Jones and Rodney Argue shall take no steps to distribute assets of the estate to beneficiaries or otherwise finalize the administration of the estate until after February 15, 2018. [26] While costs of the application were requested in the originating application of Kent Jones and Rodney Argue, submissions were not made in respect thereof. Accordingly, retain jurisdiction on the matter of costs, and on notice to Evan Jones will hear an application in respect of this matter. For the information of counsel and Evan Jones, am scheduled to do Battleford chambers on January 25, 2018, or telephone application can be scheduled through the Registrar.

HELD: The application was granted. The court ordered the removal of the respondent as an executor in the grant of probate and ordered that the applicants remain as executors but that they should take no further steps to distribute the assets of the estate. It found that there were “special circumstances” within the meaning of s. 17 of The Administration of Estates Act. The respondent was entitled to challenge the validity of the will but not entitled to remain as an executor.

c_2017skqb388.txt

NOVA SCOTIA COURT OF APPEAL Citation: Newton v. Waterbury Newton, 2011 NSCA 34 Date: 20110415 Docket: CA 338183 Registry: Halifax Between: Walter O. Newton v. Waterbury Newton Respondent Judge: The Honourable Justice Peter M. S. Bryson Appeal Heard: March 21, 2011 Subject: Civil Procedure Alternate Dispute Resolution Stay Summary: Appellant applied for stay of proceedings pursuant to Civil Procedure Rule 4.07(3) and s. of the Arbitration Act, R.S.N.S. 1989, c. 19. Partnership Agreement provided for resolution of disputes by arbitration. Respondent sued appellant who defended, provided some documents and agreed to discovery, but refused substantive answers citing the Agreement. More than two years after suit started, appellant applied for stay. Issue: Did Chambers judge err in refusing stay? Result: Leave granted but appeal dismissed. Chambers judge did not err. Appellant had defended and taken steps in the proceedings which precluded right to apply for stay under s. of the Arbitration Act. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of pages. NOVA SCOTIA COURT OF APPEAL Citation: Newton v. Waterbury Newton, 2011 NSCA 34 Date: Decision Date 20110415 Docket: CA 338183 Registry: Halifax Between: Walter O. Newton v. Waterbury Newton Respondent Judges: MacDonald, C.J.N.S., Fichaud and Bryson, JJ.A. Appeal Heard: March 21, 2011, in Halifax, Nova Scotia Held: Leave for appeal is granted and appeal is dismissed with costs to the respondent, per reasons for judgment of Bryson, J.A., MacDonald, C.J.N.S. and Fichaud, J.A. concurring. Counsel: Jonathan Cuming, for the appellant Christopher W. Madill, for the respondent Reasons for judgment: [1] Walter Newton seeks leave to appeal and, if granted, appeals the decision of the Honourable Justice Arthur J. LeBlanc of September 30, 2010 in which Mr. Newton was refused stay of proceedings (2010 NSSC 359 (CanLII)). At the conclusion of the hearing, the parties were advised that leave to appeal would be granted but that the appeal would be dismissed, with reasons to follow. These are the reasons. [2] On December 23, 1998, Mr. Newton and Waterbury Newton entered into partnership agreement. Clause 25 of the agreement provided that all disputes between partners relating to the business of the partnership would be arbitrated under the Arbitration Act, R.S.N.S. 1989, c. 19. Section of the Act says: If any party to submission, or any person claiming through or under him, commences any legal proceedings in any court against any other party to the submission, or any person claiming through or under him, in respect to any matter agreed to be referred, any party to such legal proceedings may, at any time after appearance, and before delivering any pleadings, or taking any other steps in the proceedings, apply to that court to stay the proceedings, and that court, or judge thereof, if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the submission, and that the applicant was, at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, may make an order staying the proceedings. [3] On May 31, 2004 Mr. Newton withdrew from the partnership. [4] In September of 2006 Waterbury Newton commenced these proceedings against former client to recover fees and disbursements charged to their client by Mr. Newton while he was still partner. Waterbury Newton amended the statement of claim on March 10, 2008 adding Mr. Newton as defendant. [5] On April 7, 2008 Mr. Newton filed defence. After admitting certain uncontroversial facts, Mr. Newton denied the balance of the allegations in the statement of claim and specifically pleaded clause 25 of the partnership agreement. In seeking dismissal of the claim, Mr. Newton argued that the Supreme Court had no jurisdiction to determine the issues between the parties. [6] Following the filing of his defence, Mr. Newton agreed to attend discoveries and to provide list of documents. However, when he attended discoveries, he refused to answer any questions going to the merits of the claim, citing the arbitration clause in the partnership agreement. He did produce some documents. He agreed to produce others but did not. [7] In March 2010 Waterbury Newton brought motion to compel Mr. Newton to attend discovery and file an affidavit of documents. Shortly before that motion was to be heard, Mr. Newton filed motion seeking dismissal of this action for want of jurisdiction pursuant to Rule 4.07: 4.07 (1) defendant who maintains that the court does not have jurisdiction over the subject of an action, or over the defendant, may make motion to dismiss the action for want of jurisdiction. (2) defendant does not submit to the jurisdiction of the court only by moving to dismiss the action for want of jurisdiction. (3) judge who dismisses motion for an order dismissing an action for want of jurisdiction must set deadline by which the defendant may file notice of defence, and the court may only grant judgment against the defendant after that time. [8] The Chambers judge defined the issue as whether Mr. Newton had attorned to the Court’s jurisdiction. He found that he had. Moreover, he found that Mr. Newton had taken fresh steps to advance the proceeding by producing list of documents and providing additional documents and agreeing to discovery dates. Mr. Newton’s defence was not filed simply to avoid default judgment. He did not confine his defence to plea of want of jurisdiction, but denied the substance of the claim as well. [9] Justice LeBlanc also concluded that Rule 4.07(3) assumes that motion to dismiss must occur before the filing of defence because it directs the judge to set time for filing the defence if the motion fails. [10] An appeal from an interlocutory and discretionary decision is only available if the Chambers judge applied a wrong principle of law or made a clearly erroneous finding of fact, or a failure to intervene would give rise to a patent injustice: Smith v. Attorney General (N.S.), 2004 NSCA 106 (CanLII), at para. 18; A.B. v. Bragg Communications Inc., 2010 NSCA 70 (CanLII), at para. 33. [11] In his factum, Mr. Newton argued that: (a) Former Civil Procedure Rule 11.05 expressly forbade an application to set aside claim once defence had been filed. Since new Rule 4.07 is not so explicit, it should be interpreted more liberally; (b) Mr. Newton’s defence was not an attornment to the jurisdiction of the court within s. of the Arbitration Act or in light of applicable case law, (Navionics Inc. v. Flota Maritima Mexicana S.A., 1989 CarswellNat 141, 26 F.T.R. 148). He argues that he did not intend to forsake arbitration (again, relying on Navionics). Mr. Newton cites Schulz v. Schulz, 2007 NSSC 319 (CanLII) which found that attendance at settlement conference was not attornment to jurisdiction. [12] In my view, these arguments are not persuasive. Mr. Newton’s defence was not confined to plea of “no jurisdiction”. He denied the substance of the claim as well. Nor, unlike Navionics, is there any evidence that he was filing to avoid default judgment. Moreover, he provided documents and attended discovery (albeit he then asserted he had no obligation to answer questions). For more than two years, Mr. Newton did nothing to seek the stay that s. of the Arbitration Act permits. And then he only did so when faced by motion to produce documents and attend discoveries. In Navionics, the defendant was clearly trying to avoid default judgment and sought stay within few weeks of commencement of the action. Unlike Schulz, there is no evidence that Mr. Newton’s attendance at discovery or provision of documents had anything to do with settlement. [13] In his oral submissions, counsel for Mr. Newton argued that Justice LeBlanc erred by not using prejudice test which he claimed was applied by Justice Goodfellow in Canada (Attorney General) v. Marineserve.MG Inc., 2002 NSSC 147 (CanLII) (not case cited to Justice LeBlanc). [14] In Marineserve, the Court was interpreting s. of the Commercial Arbitration Act, R.S., 1985, c.17 (2nd Supp.) which provides in part: Arbitration Agreement and Substantive Claim before Court (1) court before which an action is brought in matter which is the subject of an arbitration agreement shall, if party so requests not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed. ... [15] In Marineserve, the Attorney General of Canada commenced proceedings on behalf of Transport Canada against Marineserve and Maritime Harbours Society in connection with the operation of the port at Digby. The Attorney General sought broad remedies, including injunctive relief, an accounting, reimbursement for monies it hadn’t received, amongst others. Maritime Harbours filed defence pleading dispute resolution clause in the agreement between itself and Transport Canada which required adjudication of claims under the Commercial Arbitration Act of Canada. Maritime Harbours brought its application before Justice Goodfellow under former Civil Procedure Rules 14.25 and 37.10. Rule 14.25(d) allowed court at any stage of proceeding to grant stay for an abuse of process. New Rule 4.07 is not so accommodating. It assumes that an applicant for stay has not yet defended. [16] Mr. Newton submitted that the facts in Marineserve were virtually indistinguishable from this case. Likewise, he argued that the Nova Scotia Arbitration Act and the Commercial Arbitration Act of Canada had similar language. In reply, Waterbury Newton argued that Marineserve can be distinguished on the following bases: In Marineserve, the delay in bringing an application was only six months whereas, in this case, Mr. Newton’s delay was 26 months; In Marineserve, the court recognized that timeliness was an issue but was satisfied that Maritime Harbours raised the question of arbitration at an early stage; In Marineserve, Justice Goodfellow characterized the litigation as “not yet out of the starting gate”; Unlike the applicant in Marineserve, Mr. Newton furthered the litigation process by agreeing to, and attending discoveries and providing documents; Section of the Nova Scotia Arbitration Act is more specific than Section of the Canadian Commercial Arbitration Act. [17] would add that Justice Goodfellow did not explicitly determine whether the applicant in Marineserve had attorned to the jurisdiction of the court. [18] Counsel for Mr. Newton argued that Justice Goodfellow applied prejudice test because in para. 24 of his decision he cited Queensland Sugar Corp. v. Hanjin Jedda (The), [1995] B.C.J. No. 624 where the Court decided that stay should not issue as it would then be prejudicial for the matter to be referred to arbitration when the litigation process had been well underway. Justice Goodfellow did not explicitly adopt this reasoning but arguably it is implicit in his determination that the litigation in Marineserve had not “progressed out of the starting gate”. That was Justice Goodfellow’s factual finding in the context of exercising his discretion. In contrast, Justice LeBlanc here found that Mr. Newton had filed substantive defence and taken steps in the proceeding. The evidence supports these findings. Therefore, the remedy of stay under s. of the Arbitration Act was no longer available to Mr. Newton. [19] In light of the foregoing, it is not necessary to decide whether there is a meaningful distinction between proceeding under Rule 4.07 for dismissal for want of jurisdiction or Rule 88.02 for abuse of process, which was the equivalent 1972 Rule (14.25(d)) invoked in Marineserve. [20] Leave for appeal is granted but the appeal is dismissed with costs of $750, including disbursements, to the respondent, Waterbury Newton. Bryson, J.A. Concurred in: MacDonald, C.J.N.S. Fichaud, J.A.

. This was an interlocutory, discretionary decision and the chambers judge did not apply a wrong principle of law or make a clearly erroneous finding of fact, nor has there been a patent injustice. A decision on the corollary issue of whether the proceeding should have taken place under Rule 4.07 (dismissal for want of jurisdiction) or Rule 88.02 (abuse of process) is unnecessary.

b_2011nsca34.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2009 SKQB 272 Date: 2009 07 02 Docket: Q.B.C. 31 of 2007 Judicial Centre: Regina BETWEEN: HER MAJESTY THE QUEEN Counsel: Roger DeCorby for the Crown Christina G. Skibinsky for S. C. SENTENCING JUDGMENT ZARZECZNY J. July 2, 2009 INTRODUCTION [1] On June 5, 2009, this Court, in a written judgment (the “Judgment”) found the accused guilty of the following offence:COUNT 1 THAT HE, the said S. C. [sic], on or between the 20th day of May and the 22nd of December, A. D. 2005 at Muscowpetung First Nation, Saskatchewan did for a sexual purpose touch A. M. [sic] a person under the age of fourteen years directly with a part of his body, to wit: his hand, contrary to Section 151(a) of the Criminal Code. [2] Section 151(1) of the Criminal Code provided, at the relevant time, as follows: 151. Sexual interference Every 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 fourteen years (a) is guilty of an indictable offence and liable to imprisonment for term not exceeding ten years and to minium punishment of imprisonment for term of forty-five days; ... CIRCUMSTANCES OF THE OFFENCE [3] The facts of this case are as set out in the court’s Judgment. Briefly stated, the accused was found guilty of directly touching, for sexual purpose with his hand, the vagina of A.M. on more than one occasion between May 20 and December 22, 2005. The last of these occurred either December 17 or 18 of that year. A.M. was nine years old at the time and therefore person under 14 years of age as provided for by s. 151(a) of the Criminal Code. On all occasions, his touching occurred over and not under A.M.’s clothes. [4] At the time of these occurrences, the accused lived with A.M.’s mother, T.Y. He regarded his relationship with A.M. as that of step-father/daughter. His sexual touching occurred at his residence on the Muscowpetung First Nation Reserve on occasions when A.M. would visit with him and her mother on weekends. CIRCUMSTANCES OF THE OFFENDER [5] S.C. is currently 37 year old male. At the time of the commission of this offence, he was 33. He is First Nations and although he currently resides on the Ochapowace First Nation Reserve, his home reserve is Muscowpetung where these incidents occurred. At 13 years of age, he entered the Lebret Residential School where he attended for approximately three and one-half years. At the sentencing hearing, his counsel advised he experienced abuses at this school. The accused testified at the trial. He told of his experiences both of physical and, more traumatic to him, sexual abuse while growing up. He was sexually abused by both male and female members of his family. He testified at the trial that this abuse substantially impacted him and it has affected him all his life. [6] S.C. did not complete high school education, however, he says he has plans to do so. He hopes to enroll in Grade 12 equivalency program which he could begin in the fall of 2009. [7] S.C.’s counsel submitted that when he did work it was in general labouring type jobs. He has been unemployed for lengthy periods including the present. [8] S.C. has three children, two older sons, ages 13 and 17, as well as daughter, age 15, and young son born of A.M.’s mother. He currently resides with his new common law spouse who is now pregnant with his child. [9] His counsel reports that S.C. has had significant substance abuse problems throughout his life mostly with alcohol but also occasionally with drugs. Submissions made on his behalf suggest that he has twice attempted treatment programs, the first approximately five years ago which was successful for short period of time but saw him relapse into alcohol and drug abusive behaviours. The second occasion was during December and January of 08/09 while he was awaiting trial on this charge. He attended two months of an 11 month program. He withdrew before completion but hopes to re-enter and is on the waiting list. [10] S.C. has many supporters. His mother, common law spouse, cousins, brother and nieces were in court during his sentencing hearing as was Mr. Vern Anaskan of the Justice Committee of the Piapot Reserve and Chief Elizabeth Pratt of the Muscowpetung Reserve. Chief Pratt and number of others wrote letters of reference and support and during the sentencing hearing, submissions of support were received. Chief Pratt emphasized his need for healing and encouraged the court to accept his commitment to change which she believed was sincere. [11] S.C. has criminal record for offences dating back to 1993, the last of which involved an uttering threat charge in 2003, for which he was fined and received one year probation. The Crown accepts that these past offences are non-related to the present charge. In all prior cases he received fines, driving prohibitions and, in the one case, probation. His counsel advises he has not served any period of incarceration other than as related to the present offence. POSITION OF THE PARTIES [12] At the invitation of the court, counsel for both parties submitted their positions in writing with respect to the sentencing of S.C. Those positions are as follows: The Crown’s Position [13] In his brief, counsel for the Crown sets out its position as follows in para. 1: In it’s submissions, the Crown will seek sentence of incarceration to be served in Provincial Correctional Facility. The length of sentence requested by the Crown will be years less one day. ... [14] In support of its position, the Crown relies upon the cases of R. v. D.W.C., 1997 SKCA (SentDig) 30; R. v. McKay, 2000 SKCA (SentDig) 19; R. v. G. (H.), 2003 SKCA (SentDig) 38; R. v. Bighetty (2005) 2005 SKCA 94 (CanLII), 269 Sask. R. 108 (Sask. C.A.); R. v. Lindsay, 2008 SKCA (SentDig) 1, R. v. Bird (2008), 2008 SKCA 65 (CanLII), 310 Sask. R. 222. In addition to these case authorities, the Crown relies upon s. 718.01 of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (the “Criminal Code”) requiring court, when it imposes sentence for an offence that involves the abuse of person under the age of 18 years, to give primary consideration to the objectives of denunciation and deterrence. The Crown additionally relies upon s. 718.2(ii.1) providing that it is an aggravating circumstance that the offender abused person under the age of 18 years, s. 718.2(iii) that the offender abused position of trust or authority in relation to the victim, and s. 718.2(b) the parity principle. [15] In addition to the sentence of incarceration, the Crown applies for s. 490.012 Criminal Code sex offender registry Order (unopposed by the defence), s. 487.051(2) Criminal Code Order authorizing DNA analysis samples to be provided (again unopposed by the defendant), s. 109 ten year firearm prohibition Order and ten year prohibition Order from attending certain places as provided for by s. 161 of the Criminal Code. The latter two orders are both opposed by the defence as being over-reaching having regard to the circumstances of the offence in respect of the former and this offender in the respect of the latter. [16] Finally, the Crown asks for two year period of probation to follow any sentence with general conditions and two specific conditions including sex offender and substance abuse assessment, counselling or treatment and avoiding contact with A.M. The Accused’s Position At para. 49 of her submission, counsel for the accused advances the following position to the court with respect to its sentencing of the accused: In light of all of the submissions and materials filed, as well as any additional oral submissions on the date of sentencing, the defence submits that an appropriately fit sentence for [S.C.] would be in the range between six to nine months. We agree with the Crown’s recommendation for lengthy probation period to follow the custodial portion of the sentence. [18] As did those persons making submissions to the court during the sentencing hearing, counsel for the accused stressed S.C.’s need and desire for treatment as First Nation’s individual. Counsel stressed the restorative approach outlined by the Supreme Court in the seminal decision of R. v. Gladue, 1999 CanLII 679 (SCC), [1999] S.C.R. 688 and commended the “Gladue principles” to the court for its consideration. In doing so, she raises s. 718.2(e) of the Criminal Code requiring the court to consider all available sanctions other than imprisonment before imposing custodial term, especially with respect to aboriginal offenders. [19] It must be pointed out at this time that counsel for the defence did not argue for any sentence imposed to be served in the community. The court understood her submissions to support not community based sentence for the accused but rather the proposition that the “Gladue factors” and principles should inform this Court with respect to the length of any incarceral sentence it might impose upon this offender. ANALYSIS The Sentencing Provision of the Criminal Code [20] As have the courts in the cases quoted in this sentencing judgment, have considered, in particular, the provisions of the Criminal Code setting out the fundamental purposes, objectives and principles of sentencing. [21] The Criminal Code of Canada, and in particular s. 718 of the Code, sets out the fundamental purposes of sentencing. These include maintaining respect for the law and just, peaceful and safe society. The objectives of sentencing are also set out in this section of the Code and they include denunciation of unlawful conduct, deterrence of an offender or other persons from committing offences, separation of offenders from society when necessary, assisting in the rehabilitation of offenders and finally the promotion of sense of responsibility in offenders and an acknowledgment of the harm done to victims and to the community. [22] fundamental principle of sentencing is set out by s. 718.1 of the Criminal Code. sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [23] Section 718.2 of the Criminal Code mandates that sentencing court must take into consideration relevant aggravating or mitigating circumstances relating to the offence or the offender in considering whether or not sentence should be increased or reduced. This section advances the parity principle that similar sentences should be imposed on similar offenders for similar offences committed in similar circumstances. An offender should not be deprived of liberty if less restrictive sanctions are appropriate in the circumstances. 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. [24] Finally, s. 742.1 of the Criminal Code provides that where court imposes sentence of imprisonment of less than two years and it is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purposes and principles of sentencing previously referred to, the court may order that the offender serve the sentence in the community subject to conditions that the court imposes. [25] The court has already commented, in the particular facts and circumstances of this case, upon the additional considerations which it is mandated to take into account with respect to the provisions of s. 718.01. Since this case did involve the abuse of person under the age of 18 years, this section of the Code mandates that primary consideration be given to the sentencing objectives of denunciation and deterrence. Section 718.2(ii.1) also applies since this case did involve the abuse of person under the age of 18 years. That is relevant aggravating circumstance as is the fact that the accused abused his position of trust or authority, namely his step-father/daughter relationship to A.M., and this too is an aggravating circumstance that the court is mandated by s. 718.2(iii) to consider. Aggravating Circumstances [26] As has already been observed, this offence involves abuse of person under the age of 18 years, namely A.M., who was nine years old at the time. The accused abused his position of trust and authority since, by his own evidence at the trial, he saw himself in step-father/daughter relationship with A.M., relationship which had continued over some years. As A.M.’s mother, T.Y., states in her victim impact statement: ... My daughter still doesn’t trust men because she gave all her trust in the world to [S.C.] and took him like her “Dad”. Then he turned around and betrayed her at the tender age of years old, by sexually touching her private parts. never thought that [S.C.] would hurt my daughter. He played the part well of being great step-dad to her. He promised her that he wasn’t here to hurt her remember him saying this to her. He gained our trust and used it to his benefit and started abusing me then eventually sexually touching [A.M.]. ... [27] These incidents of abuse occurred more than once. At the trial, as best A.M. could remember, it happened around five times or so. [28] The accused is not young man he was 33 years old when this offence occurred and he is now 37. Even though he is self-acknowledged long time abuser of alcohol and drugs, has made no serious effort at obtaining help, programming or rehabilitation. What efforts he has made have been unsuccessful or uncompleted. He has not upgraded his skills or education nor has he maintained regular or any worthwhile employment. [29] Perhaps most noteworthy, however, as an aggravating circumstance, is that at no time during the trial nor during the sentencing hearing when he was given specific opportunity to do so and asked if he had anything to say, did he apologize to his victim, the court, his community, his current spouse or T.Y. for his actions. He has shown absolutely no remorse and, as noted in the trial Judgment, appeared more focused upon himself and his own victimization then showing any concern for his victim or the impact his abuse might have upon her and her future life. [30] These are the aggravating circumstances which this Court has considered applicable in this case. Mitigating Circumstances [31] The accused does not have any significant or related criminal record and he has not previously served time in jail. He appears now to be well settled in new relationship which appears stable. He clearly has the love and support of his current spouse who has been with him during the trial and all subsequent court proceedings. She has written letter of support outlining her feelings for the accused and her belief that he truly wishes to rehabilitate himself and make plan for his and now his family’s future. [32] The accused clearly has the support of his First Nation’s community, both members of his Reserve and that of his now adopted Ochapowace First Nation Reserve. Many of his relatives, including his brother, cousins and nieces as well as his mother, were in court to support him. number of these individuals spoke at the sentencing hearing. They accept the sincerity of his wish to deal with his past and present addictive and abusive behaviours and to make new life for himself and his family. They are prepared to support him personally and with the resources of the Reserve, as Chief Pratt submitted in her oral statements and written letter to the court. [33] Finally in this regard, the court does observe that as abusive as S.C.’s behaviours towards A.M. were, the nature of his actions were not as intrusive as is the case in number of the cases relied upon by the Crown in its brief on sentencing. A.M., as the Judgment notes, is an intelligent and confident individual and although she has been impacted, as her mother’s victim impact statement outlines, nevertheless, she appears resilient and impressed the court as being able to put this matter behind her. Time will tell. CONCLUSION [34] This is not a case where a conditional sentence served in the community is available or appropriate. Section 151 of the Criminal Code provides that the maximum sentence in case such as this is 10 years but it also provides compulsory minimum sentence of incarceration of not less than 45 days. Section 742.1 of the Criminal Code relating to the imposition of conditional sentences is therefore not available in this case. [35] As previously reviewed, the Crown recommends sentence of two years less day of imprisonment while defence counsel submits that sentence of six to nine months of incarceration would be appropriate in all of the circumstances. [36] There can be no question, by virtue of the recent amendments to the Criminal Code, that the Parliament of Canada has clearly sought to protect the children and young people of this country from the abuse of adults. It has done so, in part, by enacting the provisions of s. 718.01 mandating that where case involves the abuse of person under 18 years of age, the court must give primary consideration to the sentencing objectives of denunciation and deterrence. There is no better evidence of why the protection of children is an important social value than to consider the history of abuse testified to by both A.M.’s mother and S.C. himself. As S.C. testified, the physical and sexual abuse that he suffered at the hands of his family members have haunted and affected him throughout his life. Failure of the justice system and the courts to protect young people by imposing jail sentences that will serve to denounce and deter abusive behaviour towards children will only perpetuate the kind of abuse and consequences which S.C., the accused in this case, has himself experienced and from which he testified he still suffers. [37] A.M. was entitled to be safe in the hands of her parent, including her step-parent, S.C. She was entitled to grow up happy and well-adjusted and to trust in and have respect for adults, male and female. S.C. accepted his role, as he testified at trial, as A.M.’s step-parent and as such, he was responsible to protect her and keep her safe. He abused his position of trust and authority by molesting her not once but on number of occasions. So much so, that when she finally reported his abuse to her grandmother, she did so because she was frightened that, as she testified, it would get worse. Her testimony at the trial suggested nothing less than she was sufficiently aware of the nature and kind of abuse that she was experiencing to follow her mother’s advice and report it to someone she trusted, in this case, her grandmother. She became scared enough to do so. [38] In all of these circumstances, the court has concluded that an appropriate sentence to be imposed upon S.C., for his conduct in this case, is a term of imprisonment of nine months to be served in a correctional institute of Canada. The length of sentence responds to the concerns and considerations which the court has outlined including the Code mandates of denunciation and deterrence both of S.C. and the larger members of the community. This sentence also responds to the nature of the acts committed. Thankfully, because of A.M.’s intelligence and strength S.C.’s abuse of her, while serious, was reported soon enough to avoid the potential of much more serious abuse. Because of her strength what happened to A.M. has had an impact upon her which the court expects she will be able to overcome with time. [39] The sentence of imprisonment imposed by this judgment will be followed by a one year term of probation containing the standard conditions that the accused keep the peace and be of good behaviour, appear before the court when required to do so by the court, that he will notify the court or a probation officer in advance of any change of name or address and will promptly notify the court or the probation officer of any change of employment or occupation. [40] In addition, the court imposes the following optional conditions in this probation order: 1. That S.C. will report to probation officer within five working days after the making of this probation order and thereafter when required by the probation officer and in the manner directed by the probation officer; 2. That S.C. shall participate actively in assessments, education and/or treatment in an approved program or programs for substance abuse and sex offenders as may be directed by and to the satisfaction of S.C.’s probation officer and, if so directed, S.C. shall not give just cause for dismissal from such program. 3. That S.C. shall refrain from having any contact with A.M. during the period of his incarceration and, subsequently, this probation order. [41] The Crown has satisfied the court that this offence is an offence to which s. 109 of the Criminal Code applies and therefore a mandatory prohibition order shall issue prohibiting S.C. from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance during the period of 10 years after his release from prison. [42] A further order shall issue pursuant to s. 487.051(2) of the Criminal Code authorizing and ordering you to provide sufficient samples of your bodily substances so that a DNA analysis may be conducted. The court further orders, pursuant to s. 487.012 of the Criminal Code, that S.C. comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10, the length of such order to continue for 20 years. [43] Finally, the Crown has requested an order be made pursuant to s. 161 of the Criminal Code prohibiting S.C. from engaging in certain employment involving positions of trust or authority towards persons under the age of 14 years and prohibiting him from attending certain public areas frequented by children under 14. am prepared to accept the submissions of the Crown with respect to ss. 161(1)(b) order, however, not in respect of an order under ss.(a). This offence occurred in particular circumstances and there is no indication that the acts of abuse were random nor is there any evidence that compulsive behaviours were involved. An order will therefore issue pursuant to s. 161(1)(b) prohibiting S.C. from seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 14 years. J. T. C. Zarzeczny

The accused was found guilty of the following offence: for a sexual purpose touching A. M. a person under the age of fourteen years directly with a part of his body contrary to s. 151(a) of the Criminal Code. After reviewing the circumstances of the offence and the offender, in addition to sentencing principles as set out in the case law and statutes, the Court found that this was not a case where a conditional sentence served in the community is available or appropriate. The Court found the appropriate sentence, given all the circumstances, is a term of 9 months to be served in a correctional institute in Canada, to be followed by a 1 year term of probation containing the standard conditions. HELD: The accused is sentenced to 9 months incarceration. Pursuant to s. 109(1) of the Criminal Code, a firearm order was made for 10 years prohibiting the accused from possessing any type of weapon. The accused shall also supply a sample of his DNA for analysis. There is an order under s. 490.012(1) that the accused comply with the Sexual Offender Information Registration Act. The accused is also prohibited, pursuant to an order under s. 161(1)(a), from attending a public park or swimming area where persons under the age of 14 years are present or can reasonably be expected to be present, day care centre, school ground, playground or community centre for a period of 3 years.

6_2009skqb272.txt

J. D.I.V. A.D.1996 No. 701 J.C. R. IN THE QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF REGINA BETWEEN: JOY ANNE BARTCH and ROBERT CLARENCE BARTCH RESPONDENT M.L. Elliott on behalf of Joy Anne Bartch L.A. Schienbein on behalf of Robert Clarence Bartch FIAT ARCHAMBAULT J. January 31, 1997 On January 29, 1997, awarded interim custody of Kimberley and Lauri to the respondent, Robert Clarence Bartch. I reserved decision on the questions of child and spousalmaintenance, including costs of access and counselling. believe it is common ground that the respondent's 1996 income included the following: Employment 22,950.00 Unemployment insurance benefits 5,197.00 Town councillor's indemnity 700.00 Total $28,847.00 It is argued on behalf of the petitioner, Joy Anne Bartch, that in addition to that income, the respondent has, as shareholder and officer of Bartch Building Movers Ltd., access to additional funds. He and his brother each own 38% of the voting shares of the company. The assets of the company increased significantly in 1996 ($103,752.00) from 1995 ($88,399.00). Wages to officers increased from $50,550.00 in 1995 to $80,900.00 in 1996. Notwithstanding this increase the company showed an operating profit compared to deficit in 1995. It should be noted that the shareholders' loan payable to Robert and Joy Bartch was reduced from $6,400.00 to $2,549.00 in 1996. That clearly was to the respondent's benefit ($3,851.00). In addition, the company advanced the sum of $16,952.00 to the respondent's brother, Greg, and his wife, Olivia. During 1996 the petitioner was paid $781.66 per month by the company. This was done for income splitting purposes. Now that this payment to her has been terminated (as of November 30, 1996), it is reasonable to assume that that amount will revert to the respondent, thereby increasing his receipts from the company by an equivalent amount. am satisfied that the respondent has had and will continue to have access to drawings from the company over and above his stated income. For the purposes of determining maintenance, attribute him yearly income of $38,000.00. The petitioner's position is less rosy. She is currently in receipt of unemployment insurance benefits of $318.00 every two weeks, plus whatever casual work she can obtain. As previously indicated, her employment with Bartch Building Movers, which yielded her $781.66 per month, has been terminated. Her total income, apart from maintenance in the sum of $1,600.00 paid to her by the respondent, for December, 1996, and January, 1997, totalled $1,404.44. As her income from casual employment is sporadic, it is difficult to determine her level of income for the purpose of her application for maintenance. It is to be noted that any income she earns in excess of $42.75 bi-weekly will be deducted from her UIC benefits. Hence believe that an attribution of income of $800.00 per month is fair for the current determination of maintenance. If there is significant change in her income level an application to vary may be brought by the respondent. The oldest child, Brianna, is residing with her mother in Regina and, accordingly, the petitioner must support her. The respondent is supporting the two other children, Kimberley and Lauri, who reside with him. In terms of child support, at an income level of$38,000.00 the respondent, in accordance with the Guidelines,would be required to pay $1,165.00 per month for threechildren, or $388.00 per month per child. Given thepetitioner's modest revenue, I believe he should pay thatamount without any abatement. There is no question that the breakdown of the marriage has resulted in hardship for the petitioner. She has had to set up new home in Regina and despite her good efforts, she is having problems securing employment. She is in need and the respondent is, in my view, in position to assist her. There is no question that the maintenance of two homes, as result of the marriage breakdown, taxes to the limit the available family income. There must, therefore, be an equitable sharing. The petitioner's monthly income at $800.00, together with child maintenance of $388.00 yields $1,188.00 for two persons. The respondent's monthly income ($38,000.00 � 12) is $3,167.00. After payment of maintenance for Brianna at $388.00 per month, the remaining gross monthly income for three persons is $2,778.00. An adjustment in favour of the petitioner should be made to better distribute available income among the five members of the family. In so doing am mindful of the fact that there will be tax implications for both parties. am also taking into account the costs of access and counselling which shall be borne by the respondent. The respondent shall be responsible for the travel expenses for Kimberley and Lauri for the purpose of access twice monthly. Any access exercised by the petitioner in excess of two times per month, shall be at her own expense. It is accordingly ordered as follows:(1) The respondent shall pay interim maintenance to thepetitioner in the sum of $388.00 per month for the supportof Brianna, payable on the first day of each and every monthcommencing on February 1, 1997, and until further order ofthis Court. (2) The respondent shall pay to the petitioner interim spousalmaintenance in the sum of $350.00 per month, payable on thefirst day of each and every month commencing on February 1,1997, and continuing until further order of this Court. (3) The respondent shall assume and pay the transportationcosts for the petitioner's exercise of access to Kimberleyand Lauri twice monthly. Any costs for additional access shall be at the petitioner's expense. (4) The respondent shall pay for the cost of counselling forKimberley and Lauri. (5) The petitioner shall within three months from the date ofthis order and every three months thereafter keep therespondent informed of her employment status and revenue. (6) The matter of interim custody and access shall be reviewedon July 4, 1997, if the parties have not settled the matterprior thereto.

FIAT. Interim custody of two of the children was awarded to the respondent in January 1997. The eldest resided with her mother. Decisions on child and spousal maintenance, including costs of access and counselling had been reserved. HELD: 1)The respondent was to pay interim maintenance of $388 per month for the child residing with the mother and $350 per month for interim spousal maintenance. Under the guidelines he would be required to pay $1,165 per month for three children at an income level of $38,000. No abatement was made in view of the petitioner's modest income. 2)The respondent was to assume costs of twice monthly access by the petitioner and counselling costs. 3)The petitioner was to keep the respondent informed of her employment status and revenue. 4)Interim custody and access was to be reviewed July 4/97 if the parties had not settled the matter.

d_1997canlii10919.txt

J. Q.B. A.D.1996 No. 36A J.C. W. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF WEYBURN BETWEEN: HER MAJESTY THE QUEEN and KELLY R. LONGLEY Nancy M. Drew for the Crown Michael D. Tochor for the accused JUDGMENT KYLE J. March 11, 1997 Mr. Longley was charged that on or about the 10th dayof June, 1995, in Ogema, Saskatchewan, that he did, while hisability to operate a motor vehicle was impaired by alcohol ora drug, operate a motor vehicle contrary to s. 255(1) ands. 253(a) of the Criminal Code and as well he was charged thaton the same date, he operated a motor vehicle when his bloodalcohol level exceeded 80 milligrams of alcohol in 100millilitres of blood (.08). At the trial the Crown tendered certificate of analyses establishing that the blood alcohol level was .18 in both the first and the second samples taken from the accused and an affidavit of service by Constable L. P. Weber was tendered in evidence establishing that "true copy of the certificate" had been served upon the accused. In argument questions were raised as to the sufficiency of the evidence in respect of the copy which was given to the accused. In number of cases where the method adopted by the police officer of creating the copy has been the subject of questioning and has been found to be deficient, courts have refused to admit the certificate of analyses. In the case at bar, the judge said: The Court in this instance in [sic] unable to infer that true copy was indeed served, failing the proof by the police officer by way of his testimony that he did compare the two. It's incumbent upon the police officer, be it carbon copy or indeed one of these new new types of Certificates with the copies, he still is required to compare, because there are typed versions. The printing that is pre-printed may be the same, but the there may be some mistake in regards to the typed versions due to possible corrections the police officer may have made in typing the document and not correcting the copies. He may have corrected the original and it was not transmitted on to the copies. So, he failed to make that comparison. These are only possibilities look at. therefore, as result, must deny the application of Crown to enter the document as full Exhibit. The law is clear that the affidavit is to be received as evidence unless the officer is challenged in that respect and it emerges that there was some deficiency in the preparation of the copy which would negate the evidence of its being true copy. The relevant evidence was as follows: So again, you've gone through in some detail as to exactly the steps you took, and take it there's no other steps that you took in relation to giving him or explaining those documents to him? don't understand what you mean by "other steps". Did you do anything else? As I've stated, prepared the documents. Some of them hand wrote, some of them typed, and then proceeded to go through them with Mr. Longley and provide him with copies of all the documents and explained them. He indicated to me that he understood what his readings were, that he basically when he had to come to Court and that. know you've repeated it but did you do anything else other than what you told the Judge? Not that recall specifically. So basically you would have just taken the time, as you've said you've done, got the documents in front of him, explained them to him, and then his mother came and he was released. Is that essentially it? prepared the documents, explained the documents, what they were, to Mr. Longley and provided Mr. Longley with copies of the documents. So take it when say that was essentially it, the answer is "Yes"? Pertaining to the documents, yes. Okay. There were no other steps that you took in relation to the documents? Other than preparing them and explaining them and serving Mr. Longley, I'd say no. Had counsel on cross-examination wished to raise the question of whether the original certificate of analyses had been compared to the copy thereof, he could quite easily have done so. The subsection in question, s. 258(7) says: 258(7) No certificate shall be received in evidence pursuant to paragraph 1(e), (f), (g), (h) or (i) unless the party intending to produce it has, before the trial, given to the other party reasonable notice of his intention and copy of the certificate. It appears that this rather innocuous subsection which requires that copy of the certificate be given to the "other party", normally the accused, has received much attention and in the course of that attention it has been judicially been amended to mean "true copy" which presumably, though not logically, means something more than "copy". It has also been allowed to grow to the point where the affidavit may be disregarded if the police officer does not provide supplemental evidence when challenged as to the manner in which he assured the accuracy of the copy. By the judgment in this case the trial judge hasfurther advanced the law to a point where even when notchallenged there is an obligation to provide supplementalevidence of comparison, etc. in order to buttress the evidenceof the affidavit. I hold this to be an error of law. Prosecutions of this type are not infrequent and when police officer completes the affidavit of service his memory is fresh. As time passes between that moment and the trial of the action it is reasonable to expect his specific recollection of one particular set of copies may dim and so the affidavit must be at least as reliable as his recollection of the events some weeks or months later. It would not be unreasonable to require that if thereis to be a challenge under this subsection of the affidavit orof the copy supplied, it should be based upon a discovereddifference as between the copy and the original. Otherwise the refusal to admit the certificate becomes merely the prize in procedural game which can only bring the justice system into disrepute. The object of this section is to assure that the accused knows the case he has to meet. Unless the copy which he receives is in some way different from the original, that object has been met. There is no reason to elevate the requirement beyond that level of importance. was asked notwithstanding the above finding of error of law to consider whether, in the circumstances the police officer was justified in stopping the respondent's vehicle. He had heard the noise of squealing tires and saw the vehicle shortly thereafter. It was late, Ogema is small, he apparently had reasons for the suspicion which brought about the stop. was asked to confirm the acquittal notwithstanding the existence of an error of law in respect of the certificate of analyses because the stop was not justified. The validity of the stop is one of fact and would not be prepared to rule on it. The appellant is entitled to anew trial.

The accused was acquitted on a charge of operating a motor vehicle while impaired by alcohol or drugs and while his blood alcohol level exceeded 80 milligrams of alcohol in 100 millilitres of blood when questions were raised as to the sufficiency of the evidence with respect to the copy of the certificate of analysis. HELD: 1)Section 258(7) has been judicially amended to mean 'true copy' which presumably, though not logically, means something more than 'copy'. It has grown to the point that an affidavit may be disregarded if the police do not provide supplemental evidence when challenged as to the manner in which they assured the accuracy of the copy. 2)The trial judge further advanced the law to a point where, even when not challenged, there is an obligation to provide supplemental evidence of comparison in order to buttress the evidence of the affidavit. This is an error of law. A challenge under s258(7) should be based upon a discovered difference as between the copy and the original. Otherwise the refusal to admit the certificate becomes merely a prize in a procedural game which can only bring the justice system into disrepute. 3)A new trial was ordered to determine whether the stop was justified.

4_1997canlii11319.txt

(orally) Dated: 19990331 Docket: 3108 THE COURT OF APPEAL FOR SASKATCHEWAN Coram: Tallis, Vancise Sherstobitoff JJ.A. GARY DOUGLAS SCHOENROTH and JACQUELINE DAWN RYBA COUNSEL: Mr. M. Phillips for the appellant for the appellant Ms. D. Ansell for the respondent for the respondent DISPOSITION: On Appeal From: D.I.V. No. 003512 of 1995, J.C. of Moose Jaw Appeal Heard: March 26, 1999 Appeal Decided: March 26, 1999 (orally) Written Reasons: March 31, 1999 Reasons By: The Honourable Mr. Justice Sherstobitoff In Concurrence: The Honourable Mr. Justice Tallis The Honourable Mr. Justice Vancise SHERSTOBITOFF J.A. [1] At the conclusion of the hearing of this appeal, the result of the appeal was announced from the bench with brief written reasons to follow. These are the reasons. [2] The appeal was from an order which varied a child maintenance order. The original order had been based on a written agreement between the parties entered into about a week before the Federal Child Support Guidelines, SOR/97-175, came into effect. The application to vary, made about year later, was based mainly on the coming into effect of the guidelines. [3] The judge hearing the application to vary was faced with conflicting affidavits. She thereupon decided not to allow evidence on all issues in dispute between the parties. She thought that evidence was required on only three issues which she proceeded to define. This decision gave rise to the first ground of appeal. The appellant argued that he was denied the right to lead evidence respecting matters relevant to the issues between the parties. In all of the circumstances of this case, we can not see that the appellant was deprived of the right to lead evidence on any relevant issue and we must accordingly find that the judge made no reversible error. However, we do not wish to be taken to approve of the procedure followed by the judge, and we reaffirm the principles stated in Zaba v. Bradley (1996), 1996 CanLII 4930 (SK CA), 137 Sask. R. 295 (Sask. C.A.). [4] Another ground of appeal was that the judge erred in finding that an order to vary would not be inequitable within the meaning of s. 17(6.2) of the Divorce Act, R.S.C. 1985, c. (2nd Supp.), (as am. by S.C. 1997, c. 1), by reason of the terms of the written agreement and resulting order, which, the appellant argued, contained special provisions to benefit the children. We can find no reversible error in the judge’s decision, explained in the reasons for judgment, to reject the appellant’s arguments respecting that issue. [5] Similarly, we can find no error in the judge’s decisions, supported by written reasons, that (a) the appellant did not have custody of or access to the children for enough time to bring him within s. 9 of the Guidelines; (b) the appellant’s income, for the purposes of the Guidelines, should include the bonuses he received from his employer in 1996 and 1997, and (c) Mr. Elliott did not have a business based in the home. [6] The last ground of appeal concerned the $230.00 per month the appellant was ordered to pay in respect of extraordinary expenses for extracurricular activities with the meaning of s. 7(1)(f) of the Guidelines. The judge seems to have proceeded on the assumption that the appellant objected to payment of these amounts only because the respondent never consulted him in respect of incurring the expenses. She erred in this respect. The appellant did say that he had no objection to the children participating in the activities which gave rise to the expenses. However, he also said that he believed such expenses were included in the monthly maintenance payments he agreed to in the written agreement and in the subsequent order based on the agreement. He never said in his evidence that he thought these expenses to be extraordinary so as to fall within the purview of s. 7(1)(f), if the application to vary was successful. Accordingly, the judge never addressed the question as to whether the expenses were extraordinary within the meaning of s. 7(1)(f), or whether, given the standard of living that these children were accustomed to, and given their parents’ income, they were ordinary expenses and thus included in the table amount fixed by s. 3(1)(a) of the Guidelines. [7] The expenses in question related to activities such as swimming, hockey, soccer, gymnastics, snowboarding and music. Absent any evidence to the contrary, it seems to us that the activities were ordinary activities and the expenses were of an ordinary rather than an extraordinary nature, given the income of these children’s parents. Accordingly, the judge erred in requiring the appellant to pay a portion of them under s. 7(1)(f) in addition to the table amount fixed under s. 3(1)(a). [8] That portion of the judgment relating to payments under s. 7(1)(f) of the Guidelines is set aside. In all other respects, the appeal is dismissed. Each party shall bear his and her own costs. DATED at the City of Regina, in the Province of Saskatchewan, this 31st day of March, A.D. 1999. SHERSTOBITOFF J.A. concur. TALLIS J.A. concur. VANCISE J.A.

An appeal from an order varying a child maintenance order which had been based on a written agreement between the parties entered into a week before the Federal Child Support Guidelines came into effect. The application to vary made about a year later was based mainly on the coming into effect of the guidelines. The decision to not to allow evidence on all issues because of conflicting affidavits gave rise to the first ground of appeal. The appellant also argued that the judge erred in finding that an order to vary would not be inequitable within the meaning of s.17(6.2) by reason of the terms of the written agreement and resulting order which contained special provisions to benefit the children. He also objected to the s.7(1)(f) order for $230 per month for extraordinary extracurricular expenses. HELD: The appeal was dismissed with the exception of the payments under s.7(1)(f) which were set aside. 1)The applicant was not denied the right to lead evidence on any relevant issue. Although the judge made no reversible error the procedure followed was not approved of. The principles stated in Zaba v. Bradley were reaffirmed. 2)No reversible error was found in the finding the appellant did not have custody of or access to the children for enough time to bring him within s.9; that the appellant's income for purposes of the Guidelines should include the bonuses received from his employer; and that he did not have a business based in his home. 3)The judge erred in not addressing the question as to whether the expenses were extraordinary within the meaning of s.7(1)(f). The activities were ordinary given the income of the parents and fell within the table amount fixed under s.3(1)(a). 4)Each party was to bear his/her own costs.

3_1999canlii12258.txt

Q.B. No. 2000 of A.D. 1981. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: BETWEEN: FOSSIL FUEL DEVELOPMENT LTD., PLAINTIFF PLAINTIFF and and TUDEX PETROLEUMS LTD., DEFENDANT DEFENDANT AND BETWEEN: TUDEX PETROLEUMS LTD., PLAINTIFF BY COUNTERCLAIM and and FOSSIL FUEL DEVELOPMENT LTD., and SYDNEY LOVELL, DEFENDANTS BY COUNTERCLAIM W. J. HERLE for the plaintiff, P.J. GALLET for the defendant, GEATROS, J. This action is brought by Fossil Fuel Development Ltd. "Fossil" against Tudex Petroleums Ltd. "Tudex" for breach of contract claiming damages. The following scenario is illustrative of my determination of the facts on the evidence. Sydney Lovell is the principal officer of Fossil. Indeed, it is his company. He incorporated it for the purpose of becoming involved with Tudex. Andrew Crooks, Lionel Conn and Bill Molle were at the material time the three principal officers of Tudex. heard evidence from Lovell, Crooks and Conn. Molle was not called. That he was not required to testify found not to be factor on my assessment of the events as they unfolded. Conn is the main force behind Tudex. He and his father are the main shareholders. Crooks, lawyer, was brought into Tudex by Conn. He is the counsel for Tudex. Molle was until June, 1982, the chief financial officer of Tudex. Lovell made known to Conn his interest in becoming involved with Tudex. It was time when Tudex needed investment money. Tudex came into being for the purpose of exploring properties for oil and gas. Funds would be needed for drilling operations. Investment capital was foremost in the minds of Crooks, Conn and Molle. Tudex was not concerned where the investment capital should come from. Lovell held out that he had contacts in eastern Canada. He had no experience in, or knowledge of, the oil and gas field. He had most recently been involved in the operation of restaurant. He had sold art. But Lovell had impressed Conn in particular, as salesman. So in April, 1981, Lovell's company was retained by Tudex to survey the market in eastern Canada. The relationship between the parties is fairly stated in memorandum, dated April 19, prepared by Molle for Crooks, to the effect that Fossil would be retained "... to conduct marketing study of the Montreal and eastern Canadian market places relative to the willingness of these market places to participate with Tudex in series of drilling programmes .. It was agreed that the fee for the aforementioned study would be $31,500 and that the fee would be payable in advance." Tudex says the study was to take three months. The position of Fossil is that the period was six months. Whatever may have been the time frame the marketing study did not continue beyond June 2. That was when the parties entered upon the arrangement or contract constituting the basis of this action. At all events, the consideration of $31,500 was paid. The new contract is reflected in the letter written by Conn for Tudex to Fossil for the attention of Lovell: This is to confirm our understanding that you will engage Mr. Syd Lovell as Fund Development Officer and in that capacity you will cause Mr. Lovell to devote the bulk of his time to drilling fund program for Tudex Petroleums Ltd. in accordance with the terms of that drilling program established by Tudex from time to time and in consideration thereof, it is agreed that Tudex will pay to Fossil Fuel Development Ltd. the sum of $75,000 in twelve equal and consecutive monthly instalments of $6,250 each, such instalment to be payable on the last day of each calender month commencing June 30, 1981. The allegation of Tudex, consistent with its pleading, is that it was induced to engage Lovell as "fund development officer", through the medium of Fossil, by Lovell representing to Tudex that investment capital in significant sums was readily available, and that Lovell had access to such sums. Mr. Herle contends, as Lovell testified, that Lovell's only obligation was to introduce potential investors to Tudex, and then it was to be left to Tudex, through one of its officers, to meet with those people and explain to them the advantages of investing. find Lovell was of that view. But not so Tudex Lovell's retainer was to actually acquire funds which would be used to finance Tudex. reject the contention that Tudex was induced to enter into the agreement of June 2. There was no misrepresentation. But at the same time find that when Conn wrote the letter that day it was intended by Tudex that Lovell was obligated under the agreement (following the market study) to bring in investment capital, and Lovell thought his part in the venture was confined to the area of introducing potential investors. There was a misunderstanding. It may be classified as mutual mistake. In the words of Cheshire Fifoot, 9th ed. (1976), page 225, "Each is mistaken as to the other's intention, though neither realizes that the respective promises have been misunderstood." Much time and space has been taken up by counsel in oral and written argument having to do with the parol evidence rule. Mr. Herle argues that Tudex is seeking to contradict or vary the terms of the contract outlined in the letter of June 2, 1981. That is not so. There is no ambiguity. Lovell was hired as fund development officer. The question is what was intended by that designation. In Staidman Steel Ltd. v. Commercial Home Builders Ltd. (1977), 1976 CanLII 826 (ON SC), 71 D.L.R. (3d) 17, Southey, J., at pages 21 and 22, referred to the following statement of Blackburn, J. in Smith v. Hughes, L.R. Q.B. at page 607: "If, whatever man's real intention may be, he so conducts himself that reasonable man would believe that he was assenting to the terms proposed by the other party, and that other party upon that belief enters into the contract with him, the man thus conducting himself would be equally bound as if he had intended to agree to the other party's terms." Here mutual mistake existed. Tudex thought Fossil, through Lovell, was to bring in investment capital and Lovell thought his obligation did not extend to that. The applicable principle, stated by Southey, J. in the Staidman Steel Ltd. case, at page 22, is that "... the Court must decide what reasonable third parties would infer to be the contract from the words and conduct of the parties who entered into it. It is only in case where the circumstances are so ambiguous that reasonable bystander could not infer common intention that the Court will hold that no contract was created." In this case, have little difficulty in concluding reasonable man would infer contract conditional upon Lovell acquiring investment capital for Tudex. Indeed, the designation "fund development officer" and the phrase "drilling fund program" is indicative of that. There was contract to that effect binding on Fossil. The market study program was terminated prematurely. The time had come for Lovell to deliver the funds needed by Tudex. Lovell had indicated that identifiable investors were in place. There was an instance, for example, of an imminent likely investment of $500,000. And that was when the market study was still in progress. The market study could accomplish much of what Lovell says he was to do as fund development officer. It is not reasonable that the market study would be terminated and Lovell hired at monthly retainer of $6,250 if his new duties were to be more or less the same. That is not mere speculation. find it to be an irresistible inference to be made on the evidence. In the words of Grange, J. in Brooklin Heiqhts Homes v. Major Holdings Development Ltd. (1978) 1977 CanLII 1831 (ON SC), 80 D.L.R. (3d) 563, at page 570: ".. ".. The undertaking was not ambiguous, (Tudex) was not mistaken as to its meaning, had reasonable expectation which is entitled to protection and in no way contributed to the mistake of (Lovell). Upon any objective test the plain meaning of (the letter of June 2, 1981), and the meaning taken from it by (Tudex) could reasonably be inferred." Now, by September Tudex rightly concluded that the kind of performance it was entitled to expect from Lovell was not forthcoming. Lovell was not delivering for the monthly stipend he was being paid. No investment capital whatever had been received. So Tudex sought new relationship with Lovell. To that end there was telephone conversation between Crooks and Lovell. There followed letter, dated September 18, 1981, from Crooks, for Tudex, to Fossil directed to Lovell; "This letter will confirm our telephone conversation with you of September 18, 1981, wherein we agreed to substantial change in Fossil Fuel's relationship with the Tudor Group." (Tudex is part of the Tudor Group). No longer was there to be monthly retainer. Compensation would be negotiated on "deal-by-deal basis". Lovell denies that he agreed to the termination of Fossil's arrangement with Tudex outlined in the letter of June 2, 1981. Assessing the evidence relating to Lovell's conduct after Crooks' letter of September 18, find that he realized his relationship with Tudex, in the terms of the letter of June 2, 1981, was at an end. It is unnecessary to outline that evidence because upon my stated view of the matter it is of no moment whether Lovell agreed or not. When there was a failure of performance by Fossil in an essential part of the contract Tudex was entitled to repudiate it. The letter of September 18 effectively did that. So the claim of Fossil that there has been breach by Tudex entitling it to damages must be denied. In its counterclaim Tudex seeks rescission, not only of the contract of June 2, 1981, but also of the agreement relating to the market study. The dismissal of Fossil's action effectively releases Tudex from any further obligation under the contract of June 2, 1981. The repudiation of the contract by Tudex is legitimized. So an order for rescission is not necessary. And Tudex, having accepted the performance by Fossil on the marketing study and paid the consideration therefor, there is no basis for rescission of the agreement pertaining thereto. Tudex further counterclaims for judgment for $56,500, and damages. Presumably, that sum reflects $31,500 paid for the market study and $6,250 for each of the months of June to September, 1981 (a total of $25,000) on the agreement of June 2, 1981. The claim for $31,500 is rejected on the same ground that rescission of the agreement relating to the market study is disallowed. The claim for the balance, $25,000, is not well founded. It is implicit in Crooks' letter of September 18 that Tudex would forgo any claim for payments made to Fossil to the time of termination. That is so because the payment of the retainer for the month of September was enclosed by Crooks with the letter. Similarly, case for an award of damages apart from the claim for $56,500 has not been made out. final matter. Fossil amended its statement of claim to provide for claim of damages relating to common shares of Tudex. The allegation is that contemporaneously with the contract of June 2, 1981, it was agreed Fossil would purchase the shares and payment for same deducted from the monthly instalments of $6,250 under the primary agreement. That agreement having failed, Fossil's claim as regards the shares falls with it. The main issue was whether Fossil's allegation of breach of contract is well founded. have determined that it is not. would dismiss Fossil's claim with costs. would also dismiss the counterclaim of Tudex but, in the circumstances, without costs. DATED at the City of Melville, in the Province of Saskatchewan, this 31st day of July,A.D. 1984.

The Plaintiff contracted to provide market survey to the Defendant. Before its completion, the contract was replaced by second contract for Fund Development Officer. Each party had a different understanding of the duties of the Fund Development Officer which misunderstanding the Judge classified as a mutual mistake. The failure of performance by plaintiff entitled defendant to repudiate the contract. Defendant's counterclaim for rescission of first agreement, and repayment of monies paid under second agreement, failed where it accepted plaintiff's performance and paid consideration therefore.

e_1984canlii199.txt

C.R. 151471 IN THE SUPREME COURT OF NOVA SCOTIA HER MAJESTY THE QUEEN vs. NATHAN PETER DYKSTRA SENTENCING DECISION HEARD: at Halifax, Nova Scotia, before the Honourable Mr. Justice Jamie W.S. Saunders on June 10, 1999 DECISION June 10, 1999 (Orally) COUNSEL: John Scott, Esq., for the Crown Deirdre Murphy for the Accused SAUNDERS, J.: (Orally) Mr. Nathan Peter Dykstra elected trial by judge alone on this charge of robbery. presided at your trial April 22 and 23, 1999. You took the stand in your own defence. was satisfied based upon all of the evidence presented as to your guilt on the charge on the Indictment and remanded you into custody pending your sentence this morning. For the reasons that recall describing in detail at the time of your conviction was not left with any reasonable doubt that you and the four other young men described by counsel left Trisha Fudge’s apartment intending to go in search of someone to rob and to steal what you could of value. was satisfied that you all waited together in the dark by wall of Eaton’s parkade at the Halifax Shopping Centre to see who might happen to pass by as mark. Upon seeing Mr. Daniels you chased after him and ran him down and proceeded to beat him with kicks and punches while stealing his belongings. Mr. Daniels tried to defend himself but he was no match against the five of you. Included among the items stolen from Mr. Daniels were his leather university jacket, his keys, his wallet containing money and various credit cards, gold bracelet, matching gold necklace with cross, ring bearing the Lebanese cedar and Longine watch. Mr. Daniels described the jewellery taken from him that night as having value of $7,000.00. Of those items the only things of value recovered and returned to him upon the evidence before me were his Visa card, his MSI card, and his university jacket. Mr. Daniels was badly beaten by you and the four others who joined you in that cowardly and senseless attack. When he made it home and aroused his sister, the sight of him and his injuries made her vomit or want to. They called the police and he was taken to hospital. Photos were taken two days after the robbery. Those photos were introduced in evidence and showed much of the physical damage Mr. Daniels suffered. His injuries included serious damage to his left eye and eye socket, severe abrasions when the skin on his face was scraped on the pavement during the course of the robbery, bruising to his ribs, shoulder blades and waist, an imprint on the right side of his skull said to have been made by the sole of shoe, serious discolouration behind his right ear when people tried to tug the leather jacket up over his head, and friction burns to his waist, said to have been caused when people tried to roll him over by yanking on his jeans. Fortunately for Mr. Daniels and fortunately for you, none of those injuries proved to be life-threatening, nor apparently left Mr. Daniels with any permanent or debilitating injury. As Mr. Scott has indicated, robbery is most serious offense. In Section 344 of the Criminal Code Parliament has decreed that anybody found guilty of robbery may be liable to imprisonment for life. Many of the principles of sentencing that have guided this Court over the years are now codified in Section 718 and following and have taken all of those into account in your case. Protection of the public is the primary objective. In crimes of violence, which this is, deterrence of both you and of people who may be so inclined are given the greatest emphasis in attaining that objective. have considered all of the cases Ms. Murphy included in her most helpful pre-hearing brief. For your benefit want to refer to extracts from three of those cases. am going to take them chronologically, the oldest being comments of Mr. Justice Jones writing for the Appeal Division (as it then was) in case called The Queen v. Tarbox. Among other things, when dealing with young woman with no previous record Justice Jones commented: “The primary consideration must be deterrence. This Court has repeatedly pointed out the serious nature of the offense of robbery.” The Court affirmed term of 30 months’ imprisonment in federal institution. Then want to refer to the decision of the Court of Appeal as it now is in the Emmerson case, decided in 1993. Justice Matthews observed: “This was crime of violence as such the overriding consideration must be deterrence both specific and in particular general.” And he quoted from previous comments of the then Chief Justice of Nova Scotia in case called The Queen v. Hingley where MacKeigan, C.J.N.S. said: “We must begin with the premise that robbery with violence requires strongly deterrent sentences of imprisonment.” And finally, Mr. Dykstra, would refer to the same decision cited by your counsel, it being the most recent judgment of the Court of Appeal in the case of The Queen v. Izzard, judgment handed down in January of this year and in particular two observations of now Chief Justice Glube. First where she remarked at p. 10: “I accept the principle that each case must be examined individually to arrive at the appropriate sentence. However, would find the circumstances here are not so exceptional and mitigating that the Court can ignore the benchmark of sentence of two but more often three years.” And finally, at the bottom of p. 11 of her judgment where she stated: “I would impose two year term with two years’ probation. leave the two years’ probation in place as the respondent, that being the accused, will benefit from the supervision in restructuring his future. Probation imposes level of control over Mr. Izzard for longer period than just two years’ incarceration would alone. This will equate closer to sentence of three years or more and will assist him in maintaining the goals he said he needs to stay out of trouble.” Now in deciding what is proper and fit sentence in your case have tried to apply the principles from those cases as well as counsels’ careful submissions this morning, the content of the presentence report to which will refer in moment, and those features of your case that can be considered aggravating and mitigating. am going to start with the factors consider to be the most aggravating. First, the randomness of the attack. You and these four other young men went out as group looking for mark. Mr. Daniels, your victim, happened to be in the wrong place at the wrong time. Second, consider an aggravating feature to be the frequency of such attacks and such robberies. Since your conviction by me in April recall three other newspaper accounts of similar crimes and amazingly one almost identical incident described in the paper at the very same location within week of my conviction of you. Third recall that you were the eldest among this group of five. You claimed the need for money quickly and by your own evidence you were willing to get it by unlawful means. One can reasonably infer from the evidence before me that it was on account of your suggestion and encouragement that this crime occurred. And fourth, the aggravating feature that want to emphasize is the sheer unfairness of it all. It used to be that fights were settled with fists between two people, one against the other and the altercation usually ended when one person gave up or other people intervened or the police arrived. That old equation seems to be skewed. Now too often the attacks involve others three, four, five or more people against one, and weapons or kicks to the head while the victim is down or hurt or outnumbered and no longer able to defend himself. And here the evidence proves at least one kick to Mr. Daniels’ head that left that imprint of the sole of the shoe on the right side of his skull, and knife held to his throat by one of your gang. While cannot say to what exact degree you were involved personally in administering these particular assaults upon Mr. Daniels, you were there robbing him with your friends. Those are features that find especially troubling in your case. And they are circumstances that this community through its courts seeks to denounce and deter. Let me now turn, Mr. Dykstra, to those features consider to be mitigating circumstances in your case. First agree with Ms. Murphy that there is no evidence before the Court of any careful planning in this crime. Secondly when look at the content of the presentence report it is generally positive notwithstanding the very poor upbringing you “enjoyed” in various homes in your youth. As Ms. Murphy pointed out, you were taken from your family home at age 11 and then shunted among series of foster or group homes or placed in situation with stepmother where you were abused by her. There was nnever any kind of adult authority or support or example and you fell in with bad crowd. take into account the fact that your Uncle Tom has been here throughout your trial and is here this morning for your sentence hearing and accept the representations made by your lawyer, Ms. Murphy as to the support and example he has provided and continues to provide to you. Despite all these negative features in your life you have managed to complete at least high school education and one year of university, all to your credit. take into account your relative youth at the time of this offense, the fact that you were 23 years of age at the time. also take into account that you have no previous record for robbery or crimes of violence. When look at the record passed to me this morning by Mr. Scott, the general themes appearing in all of these offenses, either as young offender or as an adult, are dishonesty, offenses of &E and theft which depict someone who at least at that stage of your life, was content to take things that didn’t belong to you, or reflect dishonesty on your part either to others or to the Court. When you get out of prison you will have to continuously demonstrate to other people that all of that is part of dark history of your youth and that you are quite different person upon your release. Your success in that respect will be entirely up to you. consider as other mitigating features the fact that you have considerable potential to rehabilitate yourself and there have been no other convictions in recent years. Ordinarily, Mr. Dykstra, person in your position would face imprisonment for more than two years and therefore probation added on would not be an option. Initially when reflected upon your case between April and today had in mind sentence of something close to two and half years with some credit for your time in remand pending your sentence. But that would have still left you with period of imprisonment of more than two years, thus depriving you, and depriving the community of the benefits that can be obtained from meaningful and properly supervised period of probation. I have come to the conclusion, Mr. Dykstra, that you are presently at a crossroads. You have some talent and some motivation to become reintegrated into society as a productive member of this community. I find that you will benefit from supervision following your release from prison which apparently has been so lacking to this point. In this way the interests of this community in the protection of its citizens from crimes such as these will be achieved. agree with the recommendations made by Mr. Scott on behalf of the Crown and Ms. Murphy on your behalf that fit and proper disposition in your case is sentence of two years in federal penitentiary to be followed by two years of probation. am going to specify some specific terms of your probation in just moment but the consequences attendant upon your failure to comply with those terms will undoubtedly be explained to you by your counsel and will in any event be stated on the copy of the probation order. Mr. Dykstra, the compulsory terms of your probation order will be as follows: (1) Under s. 732.1(2) of the Canadian Criminal Code to keep the peace and be of good behaviour; (2) To appear before me following your release from prison with your probation officer so that can hear from you and the officer how and what you have been doing. II would expect that appointment before me in this Court to be at about the mid-way point of your probationary term. The scheduling of the precise date for that attendance is to be arranged between the probation service and the coordinators in these Law Courts; (3) That you will notify the probation officer in advance of any change of name or address and promptly notify your probation officer of any change of employment or occupation. In addition to those mandatory terms, Mr. Dykstra, impose the following additional terms. Firstly you will be obliged to report upon your release to your probation officer at such times and places as she or he may direct. Secondly, you will remain within the jurisdiction of this Court unless written permission to go outside the jurisdiction of this Court is first obtained from this Court. Thirdly, you will abstain from owning, possessing or carrying weapon. Next, you will be obliged to perform 180 hours of community service during your probationary period, performing such tasks and assignments as may be directed by your probation officer. Finally, in terms of other reasonable conditions impose the following order which has two parts to it. You are obliged to use best efforts to: (1) either find and keep employment during the course of your two years on probation, or (2) enroll in and complete courses towards your education, upgrading and job training. As well, pursuant to s. 100 of the Criminal Code impose ban for 10 years prohibiting you from possessing any firearm, ammunition or explosive device. J. CASE NO. VOL. NO. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS COVER SHEET. Her Majesty the Queen vs Nathan Peter Dykstra Justice Jamie W.S. Saunders Halifax, N.S. CR. 151471 LIBRARY HEADING HEARD: June 10, 1999 DECISION: June 10, 1999 (Orally) SUBJECT: Sentencing. Robbery. Section 344 of the Criminal Code. Benefits of incarceration followed by probation. Prospects for rehabilitation. SUMMARY: Twenty-three year old male offender convicted of robbery. He and four other young males attacked and robbed university student of jewellery and other valuables worth more than $7,000. Despite poor upbringing, abuse at the hands of his stepmother and being shunted among many foster homes the offender had completed high school and one year of university. Favourable pre-sentence report showed good prospects for rehabilitation. Accepted joint recommendation for two years’ imprisonment followed by two years of probation with strict terms including 180 hours of community service.

The offender was convicted of robbery. He and four other young men attacked and violently robbed a university student of jewellery and other valuables worth more than $7,000. Despite poor upbringing, abuse at the hands of his stepmother, and being moved from many foster homes, the offender had completed high school and one year of university. There was a favourable pre-sentence report suggesting good prospects for rehabilitation, and a joint sentence recommendation for two years' imprisonment followed by two years probation with strict terms, including 180 hours of community service. Accepting the joint sentence recommendation, that the offender is at a crossroads, and has the talent and motivation to become reintegrated into society as a productive member of the community, and who will benefit from a shorter term of imprisonment than is usual for this type of offence, combined with post incarceration supervision.

1999canlii1730.txt

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2005 SKCA 120 Date: 20051014 Between: Docket: 1007 James Edward Little in his personal capacity and in his capacity as Executor of the estate of Mildred G. Little, deceased and Sandra Lee Nelson and Leslie Sharon Gallagher Respondents Coram: Sherstobitoff, Richards Smith JJ.A. Counsel: Lyle O. Phillips for the Appellant David R. Barth for the Respondents Appeal: From: 2004 SKQB 310 (CanLII) Heard: September 12, 2005 Disposition: Appeal Dismissed Written Reasons: October 14, 2005 By: The Honourable Mr. Justice Sherstobitoff In Concurrence: The Honourable Mr. Justice Richards The Honourable Madam Justice Smith SHERSTOBITOFF J.A. [1] On October 4, 1982, Mildred Little made will naming her only son, the appellant James Little, executor. She made few specific gifts and then left her home to her son, and divided the residue of her estate between her two daughters, the respondents Sandra Nelson and Leslie Gallagher. [2] In the 1990’s Ms. Little transferred title to the house to the names of herself and the appellant jointly. She also transferred some bank deposits of various kinds of total value of $57,056.36 into the joint names of herself and the appellant, and designated him the person to receive payments under Registered Retirement Income Fund owned by her of value of $29,508.55. The appellant gave no consideration for these transfers and the designation. He had no access to these assets during the life of Ms. Little. [3] When Ms. Little died on August 12, 1999, the appellant took the position that the bank deposits and the proceeds of the RRIF did not pass under the will but were given to him for the benefit of Ms. Little’s grandchildren, great-grandchildren and himself, and he in fact paid about $45,000 to the grandchildren and great-grandchildren, but nothing of those funds to his sisters, the residuary beneficiaries named in the will. The sisters brought action against the appellant claiming that the funds were a part of the residue of the estate and obtained a judgment to that effect as well a judgment against the appellant for the amounts they, as the residuary beneficiaries, should have received. This appeal is against that judgment. [4] The appellant, in his factum, raised these issues: Did the trial judge err in law in failing to consider the effect of section 75 of The Queen’s Bench Act, 1998, S.S. 1998, c. Q-1.01 upon the Respondents’ claim to the RIF? Did the trial judge err in mixed law and fact in finding that the joint bank and investment accounts were subject to resulting trust in favour of the residue of the estate? Did the trial judge erred in law in failing to consider the application and effect of section 57 of The Trustee Act, R.S.S. 1978, c. T-23, which gives courts discretion to relieve trustees of liability, in whole or in part, for technical breaches of trust where trustee acted honestly, reasonably, and where it is fair to excuse the breach? [5] preliminary issue is whether the appellant should be allowed to raise and argue issues one and three since they were not raised, argued, or dealt with in the court below. Cameron J.A. of this Court made an order allowing the appellant to amend his Notice of Appeal to include these grounds, but made the order without prejudice to the respondents’ ability to contend on the argument of the appeal that neither issue should be entertained because each gives rise to an entirely new argument on the appeal. The respondents did so contend. [6] As to the preliminary issue, there is general rule against raising an entirely new argument for the first time on appeal: Perka v. The Queen, 1984 CanLII 23 (SCC), [1984] S.C.R. 232, at p. 240 and Hawkeye Tanks Equipment Inc. v. Farr-Mor Fertilizer Services Ltd. et al. (2002), 2002 SKCA 44 (CanLII), 219 Sask. R. 148 (Sask. C.A.) at paras. [8] to [11], and the authorities cited therein. The rule, however, is not absolute. In this case, the respondents are not in any way prejudiced by consideration of the new issues since they do not involve the introduction of any new evidence, and they have had adequate time to prepare and present submissions respecting the new issues. The interests of justice are best served by allowing the issues to be raised. [7] The first issue raised in the appellant’s factum is that the trial judge erred in law in failing to consider s. 75 of The Queen’s Bench Act, 1998, S.S. 1998, c. Q-1.01, which provides as follows: 75(1) In this section: “carrier” means carrier as defined in section 146.3 of the Income Tax Act (Canada); («émetteur») “contract holder” means an individual who has entered into contract for retirement income fund with carrier; («titulaire») “retirement income fund” means an arrangement between carrier and contract holder that is defined to be retirement income fund by the Income Tax Act (Canada). («fonds de revenu de retraite») (2) Where, in accordance with the terms of contract for retirement income fund, contract holder designates person to receive payments under the retirement income fund in the event of the contract holder’s death: (a) the carrier is discharged on paying to the designated person the amount of the payments; and (b) on the death of the contract holder, the designated person may enforce payment of the amount payable, but the carrier is entitled to set up any defence that the carrier could have set up against the contract holder or the contract holder’s personal representatives. (3) contract holder may alter or revoke designation made under contract for retirement income fund in the manner set out in the contract for the retirement income fund. (4) This section does not apply to designation of beneficiary to which The Saskatchewan Insurance Act applies. [8] The appellant’s argument is misconceived. Section 75 does not apply to the case before us. It does not address the issue before the court below or this Court. The respondents have not, in the court below or in this Court, taken the position that the appellant is not the person entitled by law to receive the proceeds of the RRIF from the administrator of the fund and to give the administrator binding discharge. Accordingly, when the appellant received the money, the section was complied with and has no further application. The matter in issue both here and below is the capacity in which the appellant received the money. Did Ms. Little intend the appellant to receive it in his own capacity and for his own benefit? Or did she intend that he receive it as trustee upon an express trust to use it for the benefit of her grandchildren and great-grandchildren? Or did she intend that he receive it in his capacity as the executor named in her will to be distributed to the respondents in accordance with the terms of the will? Or since the designation was without consideration, was there resulting trust in favour of the estate? All of these possibilities were raised by the evidence, the judgment below and the arguments of the parties. These are the issues raised in the appellant’s factum as the second ground of appeal, and these are the issues considered and determined by the trial judge. Section 75 does not speak to them. [9] number of authorities were cited in relation to s. 75 and similar legislation: Baltzan Estate v. Royal Bank (1990), 1990 CanLII 7795 (SK QB), 82 Sask.R. 280 (Sask. Surr. Ct.); Clark Estate v. Clark, 1997 CanLII 22786 (MB CA), [1997] W.W.R. 62 (Man. C.A.); Fekete Estate v. Simon (2000), 32 E.T.R. (2d) 202 (Ont. C.J.); and, Amherst Crane Rentals Ltd. v. Perring (2004), 2004 CanLII 18104 (ON CA), 241 D.L.R. (4th) 176 (Ont. C.A.). These cases all dealt with the issue of whether creditors of the estate of deceased person had access to such funds when there was designated recipient. The answer seems to be no. But that was not the issue here. [10] The appellant, in his factum, stated the second ground of appeal to be that the trial judge erred in mixed law and fact in finding that the joint bank and investment accounts were subject to resulting trust in favour of the estate. [11] In this respect, the trial judge carefully reviewed the law respecting the presumption of advancement and the presumption of resulting trust. The appellant’s factum stated that he accepted the judge’s statement of law in its entirety. Accordingly it cannot be said that the judge erred in law. [12] The appellant further conceded in his factum that “none of the evidence supports the presumption of advancement”. Accordingly he conceded that none of the bank deposits and the RRIF were intended to be gifts to the appellant. He argued that the evidence indicated trust in favour of the grandchildren and great-grandchildren of the deceased rather than in favour of the estate. [13] The trial judge, in her reasons for decision, reviewed the evidence touching upon these matters in considerable detail. Her conclusions, which include the only findings of fact set out in her reasons, are as follows: [38] am satisfied that the presumption of advancement can apply to mothers and adult children, however the evidence is clear that Mildred did not intend to make gift of these funds to James. He acknowledges that clearly in his own evidence. [39] It is also clear from the evidence that Mildred retained beneficial ownership and control over the funds during her lifetime. She contributed all of the money required to acquire the funds and paid any tax owing on the interest generated by those funds. James had no access to any of these funds during Mildred's lifetime. [40] Accordingly, James holds these funds as trustee for Mildred's estate. There is conflicting evidence about whether or not Mildred wanted to have the grandchildren and great-grandchildren benefit. James and the two grandchildren who testified assert that Mildred wished to provide funds to the grandchildren and great-grandchildren. With the exception of some specific bequests, this was clearly not her intention at the time of the execution of her will. There was also evidence that Mildred expressed her intention to provide inter vivos gifts to the grandchildren and great-grandchildren, however she did not do so. [41] The plaintiffs, Leslie and Sandra assert that Mildred's intentions were to treat her three children equally. In addition, Sandra testified that Mildred specifically told her that she did not intend to leave anything to the grandchildren and great-grandchildren. [42] The best evidence of Mildred's intentions are those expressed in her will in which she leaves the residue of her estate equally to her daughters. [14] The reasons for decision show that the judge found, as matter of fact, that Ms. Little did not intend to make gift of the bank deposits and the proceeds of the RRIF to the appellant (para. [38]). This conclusion was supported by the evidence. As to the bank deposits the appellant’s evidence was as follows at pp. 112 and 115 of the transcript of evidence: see. What about her bank accounts? Those were hers. It was joint names just in case something happened to her, so that could get done what she wanted to do. And so what were your mother’s wishes in regard to the money in the bank? To be given to the grandchildren and the great-grandchildren. As to the RRIF, the appellant’s evidence was as follows, at pp. 125 and 126: Did your mother ever tell you that it was the entire RIF was going to be gift to you? Not gift to me, no. She wanted me to look after make sure the money was there to help out for the rest of the time, or whatever time, in their lifetime, the grandchildren, the great-grandchildren. [15] The reasons for decision also show that the judge found as fact that Ms. Little did not intend the funds in question to go to the appellant for the benefit of the grandchildren and great-grandchildren. Although the appellant, in argument, did not use the term express trust for the grandchildren and great-grandchildren, that was the arrangement made according to his evidence. Although the trial judge did not spell it out clearly in her reasons, she obviously rejected the part of the appellant’s evidence to the effect that Ms. Little intended the bank deposits and the proceeds of the RRIF to benefit the grandchildren and the great-grandchildren as well as himself. That the judge carefully considered the appellant’s evidence to that effect is clear from paras. [40], [41] and [42]. It is trite law that judge can accept part of the evidence of witness and reject another part. This is an issue of fact respecting the credibility of witness and this Court can interfere only in the presence of palpable and overriding error: H. L. v. Canada, (2005) 2005 SCC 25 (CanLII), 251 D.L.R. (4th) 604 (S.C.C.). The decision in this respect was open to the judge. [16] The judge did not, in her statement of the issues or in her analysis of the law, mention the possibility of an express trust in favour of the grandchildren and great-grandchildren. Nevertheless, she must have considered whether such an express trust existed because that was exactly what the appellant’s evidence suggested and exactly what the trial judge rejected in her findings of fact. [17] Since the funds in question were not given to the appellant as a gift, and were not given to him in trust for the grandchildren and great-grandchildren, they must, of necessity, revert to the estate of Ms. Little. [18] In the case of the bank deposits, the funds would revert to the estate on the basis of resulting trust. resulting trust arises when person voluntarily transfers or gifts property to another person. The law presumes that the transferor did not intend the transferee to have the benefit of the property and that the transferee is obligated to return the property to the transferor because the transferee gave no value for the property: Cooper v. Cooper Estate et al. (1999), 1999 CanLII 12613 (SK QB), 181 Sask.R. 63 (Q.B.); Dell'Aquila Estate v. Mellof (1996), 1996 CanLII 6755 (SK QB), 143 Sask.R. (Q.B.). The Supreme Court of Canada in Niles v. Lake, 1947 CanLII (SCC), [1947] S.C.R. 291, held that the presumption of resulting trust arises with respect to voluntary transfers and, more particularly, with the voluntary transfer of monies. The presumption of resulting trust is rebuttable by the transferee proving that the transferor intended the transfer as true gift: Cooper v. Cooper Estate. On the evidence, it was open to the trial judge to find resulting trust and that the appellant held the funds for the estate. [19] In the case of the RRIF, the funds would revert to the estate on somewhat different basis. Simple lack of consideration would not avoid the designation of beneficiary of the RRIF and, accordingly, the presumption of resulting trust would not apply. However, in this case, there is something more than the lack of consideration. There is the evidence of the beneficiary, the appellant, that the proceeds of the RRIF were not intended by Ms. Little to be gift to him, evidence which the judge accepted (para. [38]). As result, he is precluded from claiming the funds for himself. The judge also found as fact, as noted above, that the monies were not intended to benefit the grandchildren and great-grandchildren. Since there was no gift to the appellant, and no trust in favour of the grandchildren and great-grandchildren, the monies must, of necessity, revert to the estate. [20] These conclusions of the trial judge were reasonable ones. The evidence of the intentions of the deceased with respect to the funds in question was conflicting. Every single witness said something different with respect to the intention of Ms. Little. There was also evidence as to gifts inter vivos of money the deceased intended to make to the grandchildren and great- grandchildren but did not due to change of mind. It was the role of the trial judge to arrive at finding of fact as to the deceased’s intentions out of all the conflicting evidence. It was open to her to find, as she did, in all of the circumstances of this case, that the deceased, when she transferred the bank deposits into the joint names of herself and the appellant, and named the appellant to be the beneficiary of the RRIF, intended, in effect, only to facilitate the execution of the directions given in the will as to disposition of the funds: the funds were to be given to the respondents, the residuary beneficiaries named in the will. Since the appellant was named the executor of the will it was logical for the deceased to do what she did. Her reason for doing so came out of the mouth of the appellant: “It was joint names just in case something happened to her, so that could get done what she wanted to do.” [21] While the appellant characterized this issue as being one of mixed law and fact, it was essentially one of fact alone: the issue was what Ms. Little intended when she transferred the bank deposits and designated the payee of the RRIF. The standard of review in respect of such an issue, as noted previously, is palpable and overriding error. The judge made no such error. The appellant cannot succeed on this point. [22] Finally, the appellant asks, if he is unsuccessful on his first two points, that this Court grant him relief under s. 57 of The Trustee Act, R.S.S. 1978, c. T-23, in respect of the monies paid by him to the grandchildren and great-grandchildren, approximately $45,000.00. Section 57 is as follows: 57 If in any proceeding affecting trustees or trust property it appears to the court that trustee, whether appointed by the court or by an instrument in writing or otherwise, or that any person who in law may be held to be fiduciarily responsible as trustee, is or may be personally liable for breach of trust, but has acted honestly and reasonably and ought fairly to be excused for the breach and for omitting to obtain the directions of the court in the matter in which it was committed, the court may relieve the trustee either wholly or partly from personal liability. [23] The appellant says he paid the monies to the grandchildren and great-grandchildren in the honest belief that he was carrying out Ms. Little’s wishes. He gained no personal benefit from doing so, and did not act dishonestly. He also points out that the bulk of the funds went to children or grandchildren of the respondents, his sisters. The other side of the coin is that the trial judge did not accept his evidence that Ms. Little intended that the funds in question benefit the grandchildren and great-grandchildren. Furthermore, the appellant knew from the outset that the respondents disagreed with the position taken by him and intended to take proceedings against him. The disagreements were such that they could not even agree upon the funeral of Ms. Little. In the circumstances, the appellant’s actions in distributing the funds without at least getting directions from the court were imprudent for a trustee, notwithstanding that he made the distribution upon legal advice that he was entitled to do so. The circumstances simply do not justify, on any equitable basis, compelling the innocent respondents to bear the loss to them occasioned by the trustee’s imprudence. [24] The appeal is dismissed with costs under Double Column V in the usual way. DATED at the City of Regina, in the Province of Saskatchewan, this 14th day of October, A.D. 2005. SHERSTOBITOFF J.A. RICHARDS J.A.

The deceased made a Will appointing her only son, the appellant, as executor. In her Will, she left her home to her son, and divided the rest and residue between her two daughters, the respondents. The deceased transferred title to her house to the names of herself and the appellant jointly. She also transferred some bank deposits totalling approximately $57,000 into the joint names of herself and the appellant and designated him as the person entitled to receive payments under a RRIF totalling approximately $29,000. After her death, the appellant took the position that the bank deposits and the proceeds of the RRIF did not pass under the Will but were given to him for the benefit of the deceased's grandchildren and himself. He paid out about $45,000 to the grandchildren and himself, but nothing to his sisters, the residuary beneficiaries under the Will. The sisters brought action against him, claiming the funds were part of the residue of the estate and obtained a judgment to that effect against him. He appeals against that judgment. HELD: Appeal dismissed with costs. 1) Section 75 of The Queen's Bench Act does not apply to this case. 2) The trial judge carefully reviewed the evidence and the law respecting the presumption of advancement and the presumption of resulting trust. The judge did not mention the possibility of and express trust in favour of the grandchildren. She must have considered whether an express trust existed because that was exactly what the appellant's evidence suggested and exactly what the trial judge rejected in her findings of fact. Since the funds in question were not given to the appellant as a gift, and were not given to him in trust for the grandchildren, they must of necessity revert to the estate. In the case of the bank deposits, the funds would revert to the estate on the basis of a resulting trust. In the case of the RRIF, the funds would revert to the estate on a different basis. Since there was no gift to the appellant, and no trust in favour of the grandchildren, the monies must revert to the estate. 3) While the appellant characterized this issue as being one of mixed law and fact, it was essentially one of fact alone, the issue was what the deceased intended when she transferred the bank deposits and designated the payee of the RRIF. The standard of review in respect of such an issue is palpable and overriding error. The judge made no such error. 4) The appellant asked for relief pursuant to s. 57 of The Trustee Act in respect of the money paid by him to the grandchildren. The appellant says he paid the monies to the grandchildren in the honest belief that he was carrying out the wishes of the deceased. The appellant knew from the outset that his sisters disagreed with his position and intended to take proceedings against him. The appellant's actions in distributing the funds without at least getting directions from the Court were imprudent for a trustee. The circumstances do not justify, on any equitable basis, compelling the innocent respondents to bear the loss to them occasioned by the trustee's imprudence

8_2005skca120.txt

Date: 2002/01/09 Docket: Cr.No. 145665 CANADA Cr. No. 145665 PROVINCE OF NOVA SCOTIA IN THE SUPREME COURT OF NOVA SCOTIA [Cite as R. v. Black, 2002, NSSC No. 026 HER MAJESTY THE QUEEN against FREDERICK WILLIAM LOGAN BLACK HEARD: Before the Honourable Justice John D. Murphy, Supreme Court of Nova Scotia, at Halifax, Nova Scotia, on December 17, 2001. DECISION: December 17, 2001, Orally. RELEASE OF ORAL: January 29, 2002 COUNSEL: Gary Holt, Q.C., for the Crown Frederick Black, personally, Defence D. Bruce Clarke, for George Redling MURPHY, J. [1] Frederick Black has been charged with three counts of fraud, contrary to s. 380(1)(a) of the Criminal Code, relating to his activities as president and principal shareholder of NsC Diesel Power Inc. (“NsC”), a bankrupt corporation. Mr Black has brought motions (the “Charter Motions”) seeking a stay of those charges on the basis that his rights under the Canadian Charter of Rights and Freedoms were violated by the Office of the Superintendent of Bankruptcy (“OSB”) and by the R.C.M.P. during investigations of his activities and of the administration of the NsC bankruptcy. The present Application is made by Mr. Black seeking an Order compelling George Redling, who was Superintendent of Bankruptcy while those investigations were being conducted, to testify at the hearing of the Charter Motions. [2] This Court has already considered whether Mr. Redling should testify, and on December 4, 2001 quashed subpoena (the “Subpoena”) which Mr. Black had served directing his attendance to give evidence at the Charter Motions hearing. The reasons which provided when giving that decision canvassed the involvement of Mr. Redling and other persons in the OSB in relation to Mr. Black’s affairs, and explained the basis upon which determined that Mr Redling was unlikely to be able to provide relevant or material evidence concerning issues raised by the Charter Motions. [3] After the Subpoena was quashed, Mr Black presented additional testimony from RCMP officers and evidence from Charles Walker, who was senior official in the Halifax Office of the OSB during Mr. Redling’s tenure. Mr. Black now suggests that the evidence which those witnesses gave and the documents to which they referred raise issues which warrant compelling Mr. Redling’s attendance. The present application could be characterized as a request for re-consideration of the decision to quash the Subpoena, in light of additional information which Mr Black says has become available during subsequent testimony and from the documents which have now been provided. [4] After reviewing the Notice of Motion and Mr. Black’s affidavit, and hearing representations from Mr. Black, from Mr. Clarke on behalf of Mr. Redling, and from Mr. Holt, I have decided to dismiss the Application to require Mr. Redling’s attendance, and no subpoena will be issued to him. [5] Mr Black has not met the onus which rests upon him to satisfy the Court on the balance of probabilities that Mr. Redling has relevant or material evidence to give concerning the issues raised by the Charter Motions. The testimony and documentation presented since the Subpoena was quashed do not provide any basis to compel his attendance. [6] Mr. Black referred particularly to the last two pages of Exhibit 156, handwritten notes which have been attributed to Mr. Redling. One page is dated “September 30th” and it has been assumed the reference is to that date in 1993, during the period when Charles Piper was investigating the administration of the bankruptcy of NsC for the OSB. In Paragraph 11 of his affidavit in support of the application, and also during argument, Mr. Black suggested that those notes indicate an attempt by Mr. Redling to influence the form and content of the report provided by Mr. Piper, which led to the R.C.M.P. investigation into Mr. Black’s conduct. Several witnesses have given very detailed evidence concerning the activities of the OSB and the R.C.M.P., and there is neither testimony nor anything apparent in the notes to support Mr. Black’s interpretation. Mr. Black has also scheduled Mr. Piper to testify during the Charter Motions hearings, and will have an opportunity to explore any factors which influenced that report directly with Mr. Piper. [7] In his supporting affidavit Mr Black also expressed beliefs that Mr. Redling’s motives and conduct were improper, particularly in covering up alleged wrongdoings by Ernst and Young and encouraging overzealous investigating of his conduct. Mr. Black suggests that the OSB, under Mr Redling as Superintendent, did not pursue investigations into other parties with sufficient vigor, and that Mr. Redling somehow dissuaded the RCMP from investigating other parties’ conduct and deflected suspicion of wrongdoing to him. [8] Nothing which has come before the Court since the Subpoena was quashed (or at any time) supports those beliefs expressed by Mr. Black. No likelihood has been established that Mr. Redling will provide any evidence concerning the investigation into the conduct of any other party which would be relevant or material to the issues raised by to the Charter Motions. The Court’s concern is about the investigation into the conduct of Mr. Black, and it has not been established that any lack of vigorous investigation into activities of other persons involved in the NsC bankruptcy is likely to have affected Mr. Black’s rights with respect to the charges against him. [9] Mr. Black also raises the issue of possible OSB funding of the investigation and/or prosecution of charges against him; however, there is no basis to find that Mr. Redling is likely to provide any additional insight into that issue. [10] The RCMP officers involved have testified that they were not influenced by Mr. Redling or by anyone else in the OSB in the course of their investigation into the activities of Mr. Black. Mr. Mayrand and Mr. Walker from the OSB have also given evidence that they did not influence the R.C.M.P., and am not satisfied on the balance of probabilities that Mr. Redling is likely to have any additional information concerning that issue. [11] am not convinced that Mr. Redling is likely to have any relevant or material evidence to provide with respect to the Charter Motions; have reached that conclusion based on the information and submissions concerning his involvement in the investigations which have been provided during this application, and also based on all the evidence given during the Charter Motions’ hearings. [12] The Application is accordingly dismissed.

The accused, charged with fraud, brought a motion to stay the proceedings on the basis that his Charter rights had been violated by the RCMP and the Office of the Superintendent of Bankruptcy. The accused asked the court to reconsider its decision to quash a subpoena issued to the former Superintendent of Bankruptcy on the basis of testimony presented from other witnesses after the subpoena was quashed. Application dismissed; the accused had not met the onus on the balance of probabilities of establishing that the former Superintendent had relevant or material evidence to offer concerning the issues raised by the Charter motions. The subsequent testimony and documentation did not support the accused's allegations concerning the former Superintendent's motives or conduct.

2_2002nssc26.txt

SUPREME COURT OF NOVA SCOTIA Citation: Northern Pulp Nova Scotia Corporation v. D.R. Brenton Ltd., 46 Date: (20120126) Docket: Pic No. 340973 Registry: Pictou Between: Northern Pulp Nova Scotia Corporation v. D.R. Brenton Limited, carrying on business as Don Breton’s Fire and Safety Equipment and Don Brenton’s Fire Protection Equipment Defendant LIBRARY HEADING Judge: The Honourable Justice Patrick J. Murray Heard: September 22, 2011, in Pictou, Nova Scotia Written Decision: January 26, 2012 Subject: Costs. Party/party and solicitor client. Rule 77 and rule 18.16 considered Summary: The Defendant filed a motion to dismiss discovery subpoenas issued to the Defendant’s witnesses. The motion was allowed and the Order granted included a direction as to the manner of discovery. Issue: What costs should be awarded to the Defendant? Result: The circumstances and factual findings justified an increase in the tariff, for party/party costs. Further the circumstances warranted an award of Solicitor/client costs in limited amount. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF NOVA SCOTIA Citation: Northern Pulp Nova Scotia Corporation v. D.R. Brenton Ltd., 2012 NSSC 46 Date: 20120126 Docket: Pic No. 340973 Registry: Pictou Between: Northern Pulp Nova Scotia Corporation v. D.R. Brenton Limited, carrying on business as Don Breton’s Fire and Safety Equipment and Don Brenton’s Fire Protection Equipment Defendant DECISION ON COSTS Judge: The Honourable Justice Patrick J. Murray Heard: September 22, 2011, in Pictou, Nova Scotia Written Decision: January 26, 2012 Counsel: Donn Fraser, for the Plaintiff Michael E. Dunphy, Q.C. for the Defendant By the Court: [1] These are reasons for decision in fixing an award of costs to the Defendant, D.R. Breton Limited upon is successful motion to strike out discovery subpoenas issued by the Plaintiff, Northern Pulp Nova Scotia Corporation. [2] My decision, as well, decided the order in which the witnesses at discovery would be examined. determined that the Plaintiff witnesses (as parties) would be discovered first (on September 27th, 28th) and the Defendant witnesses would be discovered (on September 29th, 30th) after discovery of the Plaintiffs. [3] The Defendant has in their submission on costs stated that the actions of the Plaintiff constituted an improper use of discovery subpoenas. Instead, says the Defendant, the Plaintiff should have made motion to determine the order of discovery, without excluding the Defendant’s representative, as was suggested by the Plaintiff during negotiations to reach an agreement on Discovery. [4] The Defendant submits also that Plaintiff’s counsel has made unwarranted attacks against Defendant’s counsel. As result, the Defendant argues that the Court must show it’s dissatisfaction with this approach by Plaintiff’s counsel, in strong terms. Consequently the Defendant seeks an award of costs on a solicitor/client basis against the Plaintiff. [5] The starting point, is that the Defendant was successful on the motion. Normally the successful party is entitled to costs. This aspect is not in dispute. What is disputed by the Plaintiff is the amount and also what factors the Court should consider in weighing whether special circumstances exist, that would justify an award, on solicitor/client basis. [6] The Plaintiff submits that the motion was straight forward, and argued in the same manner. It argues further that the motion was uncomplicated, and that the motion was not about the exclusion or the attempt to exclude the Defendant’s representatives during discovery. Instead the Plaintiff states, the rule in question (Rule 18.16) is uncertain in respect to the order in which the parties are to be discovered. It states therefore that the use of the discovery subpoenas in this instance was permissible or at least arguably so, before the motion was made. [7] Without detailing all of the facts and without repeating all reasons for my oral decision on the motion, pause here to add additional facts and circumstances to provide context for my earlier decision and as well, this decision on costs. [8] In May of 2011 the Defendant solicitor, Mr. Dunphy, contacted the Plaintiff solicitor, Mr. Fraser, to arrange for discovery dates for the parties to the litigation. tentative date was reached for July, 2011 with the Defendant asking the Plaintiff to confirm his client’s availability. Here an honest and innocent mistake occurred. The Defendant’s solicitor, was on vacation at that time and failed to hold or “pencil in” the tentative scheduled dates. He states he did not receive confirmation of the dates from the Plaintiff’s solicitor as requested. Although Mr. Fraser believes he replied, he does not dispute Defendant’s counsel position on this. Mr. Dunphy subsequently scheduled other matters on the dates which had been initially discussed, and reserved by the Plaintiff. The Plaintiff for its part thought the dates had already been agreed upon. [9] Subsequently the tentative discovery dates in July had to be cancelled. At that point the discussions, emails, and exchanges took on much different tone, in particular from Plaintiff’s counsel, as he felt that the Defendant was reneging on the agreed upon discovery dates in July, 2011. [10] In the affidavit of Mr. Guy Harfouche, filed on behalf of the Plaintiff, he states: “32. Only on July 5, 2011, in response to the above noted July 4, 2011 letter and after requests over period of almost months, did Mr. Dunphy cooperate in providing the name of the Defendant's designated manager, being Mike Deglano. This July 5, 2011 letter from Mr. Dunphy was not disclosed by the MacGregor Affidavit but true copy is attached hereto as Exhibit "E". 36. Later still on July 5, 2011 Mr. Dunphy emailed Mr. Fraser (as reproduced in Exhibit "L" to the MacGregor Affidavit) advising that that (sic) the dates he proposed in May 2011 for discovery in this proceeding "have been filled in" and that they could look at other dates. This July 5, 2011 email failed to provide any explanation for the lack of any follow‑up from the Defendant's counsel for the period following the May 6, 2011 email. 39. Mr. Fraser advised, and do verily believe, that out of concern regarding delay in these proceedings and without yet having fully assessed any issue of tainting or tailoring of evidence with the Defendant witnesses (those witnesses just having been identified on July 5, 2011), he emailed Mr. Dunphy on July 6, 2011(as reproduced at Exhibit "O" to the MacGregor Affidavit) stating, among other things: "Given the delays you have caused in scheduling, we will not permit discovery of the Plaintiff's witnesses before discovery of the Defendant's witnesses have been concluded. We have legitimate concern at this stage that if we proceed without first completing discovery of the Defendant witnesses there will simply be further unreasonable delays." [11] On the other hand the affidavit of Amy MacGregor filed in support of the motion on behalf of Defendant states: “14. On May 6, 2011, Mr. Dunphy wrote to Mr. Fraser proposing discovery examinations take place from July 19 22, 2011. Attached as Exhibit "I" is true copy of that correspondence. 17. On July 5, 2011, Mr. Dunphy wrote to Mr. Fraser advising that he did not receive confirmation from Mr. Fraser regarding the proposed July 19 22, 2011 discovery dates and was no longer available on those dates. Attached as Exhibit "L" is true copy of that correspondence. 19. On July 6, 2011, Mr. Dunphy wrote to Mr. Fraser proposing discovery examination dates of September 27‑30, 2011. Attached as Exhibit "N" is true copy of that correspondence. 20. On July 6, 2011, Mr. Fraser wrote to Mr. Dunphy confirming the September discovery examination dates and advising that he would not permit discovery of the Plaintiff's witnesses before discovery of the Defendants' witnesses had been concluded. Attached as Exhibit "O" is true copy of that correspondence.” [12] In Exhibit “I”, Mr. Dunphy’s email to Mr. Fraser includes the following statements regarding the proposed July 19th 22nd discovery dates: “If these dates are acceptable, will have to check with my anticipated witnesses. look forward to hearing from you.” [13] In Exhibit “L”, Mr. Dunphy’s email indicates the following statements: do not have the discovery dates set. emailed you on May the 6th while was on holidays proposing discovery dates and asked you to get back to me if acceptable so would check with witnesses. never did hear from you and the dates have been filled in. We can look at other dates.” [14] It was then that Mr. Fraser emailed Mr. Dunphy stating what is contained in Exhibit “O” voicing concern for past and future delays, as mentioned in paragraph 10 (sub para 39) herein. [15] Having given my decision on the motion, it is not my intention to repeat all of the relevant evidence, as this is decision on costs only. have provided the above in an effort to illustrate the attempts by counsel to arrange for discovery, their further attempts to resolve the subsequent dispute, and the circumstances that gave rise to the issuance (on two occasions) of discovery subpoenas by the Plaintiff and served on the Defendant’s representatives Mr. Murphy and Mr. Degiano. [16] In its brief, the Plaintiff states it held “legitimate concerns with tainting and tailoring of the evidence of Mr. Degiano and Mr. Murphy, if those individuals are privy to the Plaintiff’s witnesses in advance of providing their own evidence under oath.” [17] The Defendant in its brief took the position that: 1. The Court should encourage counsel to be reasonable and cooperative in scheduling discovery examination by consent, so as to comply with the objective of the rules. 2. That the Defendant not the Plaintiff first requested discovery examinations (on January 23, 2011). 3. That there had been tentative agreement to the Plaintiff’s witnesses being discovered first (in July) before those dates fell through. 4. The issuing of the discovery subpoenas (party) by the Plaintiff was an abuse of process. [18] What is clear is that what started as misunderstanding, quickly escalated into something more. Between July and September of 2011, the parties positions on discovery, when they would be held, and in particular the order in which the parties would be discovered, became entrenched. Beyond the discovery issue, conduct also became an issue, as between counsel. [19] turn now to consider what costs should be awarded in respect of this motion. [20] On August 2, 2011, the Plaintiff issued discovery subpoenas (party) on the Defendant’s representatives Michael Degiano and Peter Murphy. These were in respect of the new dates agreed upon in September. It was brought to the attention of the Plaintiff’s solicitor by the Defendant’s solicitor that these subpoenas did not contain all of the representations and undertakings required by Rule 18.04. Mr. Dunphy wrote to Mr. Fraser by letter dated September 7, 2011: “I am surprised to see that you have taken the unilateral action that you have in issuing the discovery subpoenas. With respect, believe the issuance is inappropriate and in non compliance with the Civil Procedure Rules. have agreed to discovery dates and the witnesses to be examined. have also agreed to the sequence of the witnesses as originally agreed for the July discoveries. What have not agreed to is to have my designated manager for discovery excluded from the examination of your witnesses and not communicate with them regarding the evidence provided by your witnesses.” “It seems to me that we are set to go for the discovery examinations later this month. The only question is whether my client’s designated manager for discovery should be excluded from the discovery examination of your witnesses. If you wish to seek an Order to that effect it is open to you to make motion to do so. We see no basis whatsoever for the exclusion of witnesses in this case. look forward to hearing from you regarding the foregoing. (Exhibit of Amy MacGregor’s Affidavit) [emphasis added]. [21] In response, the Plaintiff issued new discovery subpoenas containing the following additional clauses respectively: Re: Mr. Degiano: Clause discovery subpoena is necessary because discovery by agreement has not been possible through Counsel for the defendant, with apparent irreconcilable difficulties existing in terms of scheduling and ordering of witnesses. Clause 4: The witness to whom this subpoena is addressed is the designated manager for the defendant and has not yet been discovered in this proceeding. Re: Mr. Murphy: Clause discovery subpoena is necessary because discovery by agreement has not been possible through Counsel for the defendant, with apparent irreconcilable difficulties existing in terms of scheduling and ordering of witnesses. Clause The witness to whom this subpoena is addressed is an individual party. [22] These new discovery subpoenas were issued on September 7, 2011, with Mr. Degiano being required to attend discovery on Tuesday, September 27, 2011, at 9:30 a.m. and Mr. Murphy being required to attend at discovery on Wednesday, September 28, 2011, at 9:30 a.m. [23] In the present case, the Defendant is seeking costs in the amount of $3,500.00 on its successful motion. The Defendant states that the steps taken by the Plaintiff were improper and mistaken. Its position and strategy led to an unnecessary motion. Further it argues that Plaintiff’s counsel’s conduct in attacking defence counsel was improper and that the Court must show its displeasure for such actions. The Defendant states further that the Plaintiff was given an opportunity to withdraw the motion and is entitled to its reasonable and necessary costs, including travel and disbursements. Also the Defendant says the Plaintiff chose not to withdraw the motion despite having been given an opportunity to do so. [24] The legal principles governing the awarding of costs are dealt with by Civil Procedure Rule 77. Under that rule, the Court has general discretion in the awarding of costs and can consider certain factors which may increase or decrease the award of costs by the Court. It also provides guidance to judge and allows the Court to determine expenses caused by improper or negligent conduct of counsel. (Rule 77.12) [25] There is “tariff” which provides that guidance. Tariff is the standard one for chambers. The standard tariff states as follows: Length of Hearing of Application Range of Costs Less than hour $250 $500 More than hour but less than day $750 $1,000 More than day but less than day $1,000 $2,000 day or more $2,000 per full day [26] The Court has the discretion to increase the tariff depending upon the circumstances of the case. In this case, the Defendant submits that the Tariff costs should be increased as result of two factors (a) the Plaintiff’s unreasonable and legally unsupportable position which caused the motion, and (b) the inappropriate and offensive comments made by the Plaintiff’s counsel in its pre-motion brief. [27] It is important to note that Court may grant any order in respect of costs that will “do justice between the parties”. (Rule 77.02). In addition, there is nothing in the Rules to limit the discretion of judge to make any order. The Court may subtract from or add to the tariff mentioned above. [28] It should be noted as well that the awarding of solicitor/client costs is reserved for what the Rule refers to as “exceptional circumstances”. Specifically, Rule 77.01(b) states that solicitor/client costs: ... may be awarded in exceptional circumstances to compensate party fully for the expenses of litigation; [29] Under the same rule, party/party costs would compensate party for part of the compensated party’s expenses of litigation. Solicitor client costs are fees and disbursements which counsel charged to client for representing the client in proceeding. [30] The starting point in Tariff is governed by the length of the hearing. In the present case, the hearing began at approximately 11 a.m. on September 22, 2011 and was completed at 12:50 p.m. It was reconvened at 1:50 p.m. for my decision and completed at 2:20 p.m. In total it lasted approximately hours and 20 minutes hearing time. The total duration of the hearing (allowing an hour for my deliberation) was hours and 20 minutes. It was longer still if one includes waiting time from 9:30 to 11 a.m. in chambers while other matters were being dealt with. The hour for deliberation coincided, approximately with the normal lunch break. [31] Counsel for the Plaintiff argues in its brief that costs should simply be party/party costs alone in the amount of $750.00 and that this hearing should fall in the“more than one hour but less than day” range, which would be $750.00 to $1,000.00. The Plaintiff states the sum of $750.00 is in keeping with the length of the hearing. The Plaintiff also argues that while the Defendant was successful on the motion, the motion was routine interlocutory procedural matter and not complex issue. It therefore states $750.00 is the appropriate amount for the Court to award in respect of party/party costs. [32] There are two points which the Plaintiff raised and in fairness must be considered by the court. These are (1) that the motion was not about exclusion of the Defendant’s witnesses; and (2) there is lack of certainty regarding the application of Rule 18.16 in terms of the order in which witnesses will be examined. [33] Expanding on these issues, cite the following from the Plaintiff’s brief on costs: “The Plaintiff’s position was not contrary to the Trans Canada case, as suggested by the Defendant. We did not understand the Court to find as much. The Plaintiff took no position on exclusion of witnesses, as that was not what it was seeking. The Plaintiff was certainly not attempting to deprive the Defendant from having representative present through the discoveries. Your Lordship raised the issue of the distinction between designated manager and an instructing witness. However, in this case, what the Plaintiff sought allowed even the designated manager of the Defendant to be present for all discoveries. The Defendant was simply insistent on getting to ask discovery questions first and, in our respectful view, has mischaracterized the issue by claiming it was about exclusion of witnesses. (Page 7) Further, while ultimately disagreeing that the subpoenas should be allowed, Your Lordship expressly acknowledged the Plaintiff’s frustration that it felt it was getting nowhere with discovery arrangements and that the Plaintiff legitimately felt it was entitled to resort to the discovery subpoenas. There were also clearly arguable issues on this point, given the lack of certainty regarding the application of rule 18.16. This is demonstrated by the Defendant initially taking the position that the Rule applied, then reassessing this analysis to submit that it did not, with Your Lordship ultimately concluding that the Rule in fact applied. [34] Dealing first with the exclusion, the Plaintiff had earlier proposed to the Defendant that the Defendant proceed first to discover the Plaintiff’s witnesses, on certain conditions. These included the Defendant’s representative being excluded from the discovery hearing and also that there would be no communication between the Defendant and their solicitor. (Paragraph 23 of Amy MacGregor’s affidavit of September 12th and paragraph 32 of the Defendant’s brief of September 13, 2011.) [35] In my respectful view, if exclusion was not the main issue on the motion, it was the underlying issue. In terms of negotiations leading up to the issuing of the subpoenas by the Plaintiff, the matter was not about exclusion only if the Defendant’s witnesses were discovered first by the Plaintiff. Otherwise, the Plaintiff proposed, sought in fact that the Defendant’s representative be excluded form the discovery. [36] Secondly, although Rule 18.16 does not deal specifically with the order in which witnesses will be called, it does deal with the conduct of the discovery in general. ruled therefore, it was applicable to these circumstances. [37] will allow and acknowledge that the application of Rule 18.16 is subject to interpretation. interpreted the Rule as being applicable. In so doing, made the following findings in my oral decision. (I) Brenton would have the right to examine the Plaintiff's witnesses first, both as result of the legal concept that the Defendant has the right to know the case against them and that the Defendant first gave notice pursuant to Civil Procedure Rule 18.16. (ii) The Plaintiff did not have any authority for the proposition to exclude the Defendant's representative from the discovery of the Plaintiff's witnesses. The case law is applicable in that corporate defendant has right to be represented at discovery. (Trans Canada) (iii) There was no material delay by the Defendant or Defendant's counsel in moving to discovery examinations. (iv) The use of the discovery subpoena for this purpose is something to be frowned upon. (v) The appropriate practice would be to make motion to have the order of witnesses determined or the exclusion of witnesses determined. [38] It should also be noted that in my decision, made the following additional observations (1) The issuing of the discovery subpoenas (which in effect dictated the order of witnesses) made exclusion a mute issue. (2) That the issuance of the discovery subpoenas occurred in the midst of the parties attempting to make arrangements for discovery in good faith. (3) Both parties agreed initially that Rule 18.16 was applicable. ruled that if 18.16 was not applicable, that had discretion pursuant to Rule 94 and Rule to grant the order to strike the discovery subpoenas and to direct that the Plaintiff’s witnesses be discovered first by the Defendant. [39] In terms of costs, am of the view that any decision make should be tempered by the following factors: (1) there was an implicit agreement regarding the discovery in July including the order of witnesses; (2) that when this agreement fell through, the Plaintiff became “frustrated” and became concerned about further delay resulting; (3) the Plaintiff believed it had legitimate position in issuing the discovery subpoenas or the parties had differing interpretations of Rule 18.16. In rendering my decision, must also consider Rule 77.07 which states that court may consider the following factors in increasing costs: (f) step in the proceeding that is taken improperly, abusively, through excessive caution, by neglect or mistake, or unnecessarily; (g) step in the proceeding party was required to take because the other party unreasonably withheld consent; [40] agree with the Plaintiff that both these factors apply to this case. further agree that the Defendant’s pre-motion brief is relevant in respect to the determination of costs. However, with respect to the latter, believe it is most relevant, in regard to the Defendant’s request for solicitor/client costs as opposed to party/party costs. intend therefore to deal with it on that basis. DECISION [41] It is my determination that the Tariff C costs should be increased. In awarding increased costs to the Defendant, there are several reasons for doing so. While falling short in my decision of finding that the issuing of the discovery subpoenas was an abuse of process, I did find that their issuance was an improper step in these circumstances. In addition, this required the Defendant to take a step in the proceeding it would not otherwise have had to take, the Motion to Strike. Further the Plaintiff was given the opportunity, as suggested by the Defendant to withdraw the subpoenas. It did not, and instead proceeded ahead. [42] In my decision found that it would have been proper for the Plaintiff to make motion to address its concern as to the order of witnesses. note in the evidence (Exhibit O, Amy MacGregor) that the Plaintiff contemplated such motion (on July 28th or August 11th). am mindful also that as part of the Defendant’s motion granted an order determining the order in which the parties would be discovered. The Plaintiff’s insistence on first discovering the Defendant’s witnesses was initially based on its concern for further delays by the Defendant (also expressed as the unreasonable and uncooperative approach) and as well concern for “tainting and tailoring”, in other words to protect credibility. [43] In my decision found that the delay between July and September for discovery dates was not unreasonable. found also that there was not evidence presented which warranted special consideration as to credibility issues, as compared to other cases or situations. [44] In my decision stated that the use of subpoenas in this matter should be frowned upon. In fixing the amount, the Court’s dissatisfaction should be expressed. Consequently am fixing party/party costs within the range for hearing based half day in length at range. For that time the range would be at approximately $1,000 and my decision is to increase that (by $500) to $1,500 in total for party/party costs. [45] turn now to consider whether further costs should be awarded having regard to the Plaintiff’s Pre-Motion brief. While such alleged conduct may indeed be relevant in an award of party/party costs as part of my general discretion, it is more appropriate in my view to consider this issue under the heading of solicitor/client costs (Rule 77.03(2) and Rule 77.12(1)). SOLICITOR/CLIENT COSTS [46] The Defendant seeks an Order for payment of costs on solicitor/client basis, pointing out that it advised the Plaintiff it would seeking same on the motion to set aside the subpoenas. [47] note from the evidence that the Defendant’s counsel in July (Exhibit on July 8, 2011) raised with the Plaintiff that “civility issues” had crept into the case and expressed the hope that the strong language, and assertion of blame could be eliminated. The Defendant in it’s submissions points out, correctly, that counsel have duty not to try each other. [48] have considered and weighed the Plaintiff’s position on this as well. The Plaintiff states that its characterization was fair, given the unresponsiveness of counsel and that the jurisprudence and practice is not uniform (on the point of which party proceeds first to discovery examinations). It states further that the prevailing practice is different (in the view of the Plaintiff’s counsel) than what was suggested by Defendant’s counsel. It states also, correctly, that counsel giving evidence ought to be avoided and the same improper treatment complained of by Defendant’s counsel is contained in their cost submissions. The Plaintiff states further that the particular characterizations, were made honestly and in good faith. In the end the Plaintiff leaves it to the Court’s judgment whether to comment further on the specifics of these allegations. [49] The Court has inherent jurisdiction over counsel, as its officers. Any award made on costs must be fair and reasonable overall. Under rule 77.12 conduct of counsel is factor more so than the conduct of party, the latter being contained in Rule 77.07. [50] In exercising the inherent jurisdiction of the Court do not intend to detail further the “back and forth” allegations. find, as am sure both counsel here would agree, that normal practice would dictate that discovery by consent should be encouraged. [51] Further detailing of the allegations serves only to perpetuate the unfortunate dealings as between counsel here. Suffice it to say have thoroughly considered the positions and submissions of both sides. [52] The particular concern of Defendant’s counsel is in respect to use of language such as “without prudence or courtesy”, “refusal to honour dates”, “reneged”, “misrepresents”, and “repeatedly misrepresents”. On the whole I am of the view that the comments in the Defendants pre-trial motion were unduly harsh and unnecessarily strong. [53] On the merits of the case, whether there was implicit agreement or otherwise, these allegations added a layer of complexity and seriousness to the case, which undoubtedly caused the Defendant’s counsel to expend additional time preparing a response. In this way these are special circumstances which warrant, in my view, an award of costs on solicitor/client basis. The Court must discourage such submissions and encourage spirit and level of cooperation among counsel which requires, courtesy, respect and professionalism. I therefore award solicitor/client costs to the Defendant payable by the Plaintiff in the amount of $1,050. [54] am aware that the amount claimed by the Defendant’s solicitor is more than this and that the time expended was more than what was sought. have been given minimal information and an estimate of fees only. In reaching my decision, am exercising my discretion with respect to costs generally. My award is intended to compensate the Defendant (in part only), taking into account the seniority of counsel for the moving Defendant. (Sheng Ontario, 1997, 72 ACWS (3rd) 912 (Ont. SCJ.)). [55] In terms of the disbursements, it is normal to allow reasonable and necessary disbursements and this is the requirement of Rule 77.10(2). have reviewed the case law submitted in respect to the disbursements by the Plaintiff. see nothing unnecessary or unreasonable about the Defendant’s disbursements in the amount of $332.21. In my view the retention of local counsel to respond to the issues in this matter would not have been appropriate. Although the claim for photocopying has not been proven as such, consider it to be legitimate, considering the substantial amount of documentation provided. [56] Prior to concluding, will comment briefly on the case of Gouin Gouin 2005 Carswell Alta 1960, submitted by the Plaintiff. In Gouin, like here, there was no Rule establishing the order for examination for discovery. Here however, there is rule establishing who has conduct of the discovery itself. Also, in Gouin the Court considered relevant, the practice in its jurisdiction, which may or may not vary from other jurisdictions. Lastly the Court in Gouin appeared ready to deviate from the “usual order”, but concluded that no good reason was shown to do so. In the present case, the Court considered counsels’ positions offered on the practice in Nova Scotia (including under the 1972 Rules) and exercised its discretion, in rendering its decision on the motion. The Defendant first knowing the case it has to meet formed the basis of that decision. [57] In conclusion the total costs payable by the Plaintiff to the Defendant on the motion shall be $2,550 plus disbursements of $332.21, for a total of $2,882.21 payable within 20 days.

The parties agreed on discovery dates and the order in which witnesses would be discovered. As a result of an honest error, the defendant wasn't able to attend the original dates. The plaintiff became frustrated and concerned about further delays. While the defendant was making good faith efforts to resolve the discovery issues (including whether its witnesses should be excluded from attending discovery of the plaintiff's witnesses), the plaintiff's lawyer issued discovery subpoenas to compel the defendant's witnesses to appear, making the exclusion issue moot. The defendant moved to have the subpoenas dismissed, and sought solicitor and client costs on the motion. The defendant argued the subpoenas were improper and an abuse of process, and accused the plaintiff's lawyer of making unwarranted attacks against the defendant's lawyer in his pre-hearing brief. The motion was heard over approximately one-half day. Motion granted. The plaintiff will pay total costs of $2,550 (plus disbursements) to the defendant, consisting of $1,500 in party and party costs under Tariff C and $1,050 in solicitor and client costs. The tariff amount of $1,000 is increased by $500 to reflect the fact the issuance of the subpoenas was an improper step, albeit one falling short of an abuse of process. It required the defendant to bring this motion to strike. The plaintiff was given a chance to withdraw the subpoenas and chose not to. Solicitor and client costs were warranted especially in light of the defendant's lawyer's language, which was unduly harsh and unnecessarily strong. His allegations added a layer of complexity and seriousness to the case, which caused the defendant to spend extra time preparing a response. Lawyers are officers of the court and the court must encourage them to use courtesy, respect and professionalism.

c_2012nssc46.txt

nan 2002 SKPC 80 IN THE PROVINCIAL COURT OF SASKATCHEWAN NIPAWIN, SASKATCHEWAN BETWEEN: HER MAJESTY THE QUEEN and SHELDON FEDERUIK G. Parker, Esq. ................................................................................................ Crown Prosecutor R. Saretzky, Esq...................................................................................... Counsel for the Accused (J. Wang, Articling Student) May 8, 2002 DECISION AND May 22, 2002 SENTENCING (ORAL) HALDERMAN, PCJ R. Federuik Decision and Sentence Urban Municipalities Act, s. 135.3(3) [FROM THE TRANSCRIPT, EDITED] MAY 8, 2002: [1] Sheldon Federuik is charged that between the 9th of September and the 25th of September, 2001, at Nipawin, Saskatchewan, he did own a dog, to wit, that without provocation attacks a person, contrary to s. 135.3(3) of The Urban Municipalities Act. With respect to this alleged offence, the Crown must prove beyond reasonable doubt that the offence has been committed, and if the Crown proves on that basis that the offence has been committed, then it’s open to the accused, and necessary for the accused, to establish on balance of probabilities that he took such reasonable steps as were necessary to prevent the offence from occurring. [2] The evidence this afternoon indicated and established that there were four separate incidents in September of 2001 involving Mr. Federuik’s dog. Firstly, on the 9th of September when Mrs. Barks came up the alley towards her house and was frightened by the dog. Secondly, on the 19th of September on the front steps of Mrs. Barks’ house. Thirdly, on the 15th of September (reversing the chronological order) when garage sale was being held at the Barks and Zawislak residence in proximity to Mr. Federuik’s residence. And, fourthly, on the 25th of September when Mr. Federuik’s dog ran through Mrs. Barks’ yard and then was reported to have upset Mr. Zawislak’s daughter. And the issue, as I’ve indicated, is: Has the Crown proven an attack on any of those four occasions? understood Mr. Saretzky to be agreeing that the presumption of non-provocation that’s set out in s. 135.2(1) of The Urban Municipalities Act applies, and that that presumption has not been displaced. [3] Mr. Saretzky provided dictionary definition with respect to the word “attack,” and that definition, as noted it, was, “To set upon violently, to begin battle.” In my view, that definition is not appropriate nor accurate in the context of an attack by an animal. Dogs do not go into battle, not in the ordinary sense of that word, and consider the ordinary sense of that word to be voluntary intention to be involved in some physically violent act. [4] Rather, in the context of The Urban Municipalities Act, the section under which Mr. Federuik is charged, it is my opinion that an attack is an unrequested confrontation of human by dog made in circumstances where the dog exhibits loud and angry-sounding barks, snarls, or growls, and made within close range of the human. If the circumstances disclose that the dog runs toward or up to the human, that makes clearer that the dog’s action is an attack. In the Court’s opinion, common sense and don’t have any law provided to me to the contrary of what consider to be common sense bite is not necessary for there to be an attack, and in that sense the definition of battle again, think, is not apt in that in battle you intend to come into physical not only proximity, but to engage in aggressive and physical contact with the opposing party. [5] If a dog is territorial or protective, and the facts show that the human has, by intruding, been in law provocative, the offence may not be proven beyond a reasonable doubt, but on the evidence in this case I find that on all four dates there was no intrusion which was sufficient to justify an attack or which could be considered as provocation, even if Mr. Saretzky had not conceded the point. [6] Dealing then with the four incidents, the first on September the 9th. The evidence of Mrs. Barks was that she was walking down her alley and toward her house, and that the accused’s dog ran up to her from behind, and then in front of her such that, as find, she had to stop. find that the dog snarled, exhibited distinct signs of vicious, angry behaviour such that she legitimately believed that she might be bitten. Mr. Federuik was the only other witness with respect to this incident. He agreed, as understood his evidence, that the dog, in fact, got out through garbage can enclosure in the fence, but says that the dog didn’t get closer to Mrs. Barks than three feet, and that it went back when he called it. [7] accept the evidence of Mrs. Barks, and disbelieve the evidence of Mr. Federuik. In the Court’s opinion, Mrs. Barks was not discredited on cross-examination as to what she observed or what she felt, and taking the evidence of Mr. Federuik as whole and I’ll refer in few moments to some other of his evidence which causes me to form my conclusion disbelieve his evidence as to what the dog did on that occasion. accordingly find that on the definition of attack, as understand it, that the Crown has established beyond reasonable doubt that there was an attack on Mrs. Barks on September the 9th. [8] Dealing next then and again slightly out of chronological order, just because that’s the way went through this. Dealing with the September 19th incident, which was the dog on the doorstep incident, the only direct evidence was that of Mrs. Barks as to what was observed. The evidence of Mrs. Barks was that the dog was in close proximity, and was snarling and barking, but in that case she was inside of her residence. In the Court’s opinion, the dog’s actions might have justified requiring hearing under the other section of The Urban Munipalities Act, which provides for determination as to whether dog is dangerous or not, but in this case there was not, in the Court’s opinion, any attack on her on that date. do accept her evidence as to what occurred on that occasion, and that evidence, in the Court’s opinion, goes to whether Mr. Federuik took reasonable steps to control his dog, and I’ll deal with that matter at the conclusion of my dealing with each of the incidents. [9] Dealing thirdly, then, with the September 15th incident, the garage sale, the evidence of Ms. Cherepuschak and Mr. Zawislak was that the accused’s dog ran at lady who was leaving the garage sale. Ms. Cherepuschak said in her evidence that the dog came within two feet of the lady, and believe Mr. Zawislak said three feet, and that in their opinion the only reason the dog didn’t get closer was that the lady got into her vehicle and drove away before the dog got any closer. Again, in my opinion, this evidence was not discredited or effectively discounted in cross-examination. contrast that with Mr. Federuik’s evidence that the dog only took few steps towards the lady before he called it back, and Ms. Person’s evidence that she saw nothing untoward happening at all. [10] also take into account, in weighing the evidence and determining the credibility of the various witnesses, Mr. Federuik’s response to the prosecutor regarding the photo of Mr. Federuik’s house window. found him to be less than forthright in his response that he liked the window, and that was the reason that he’d brought copy of the photo along to court with him today. accept, in this case, the Crown’s evidence with respect to the proximity of the animal and the actions of the animal to the lady leaving the garage sale. find that the dog ran at the lady in menacing fashion, did get within three feet of her before she drove away. Mr. Federuik’s evidence, I’m not sure it was heard by others, but understood his evidence in that regard to be that she “burned” away, as recall what he said. On all of the evidence, have no doubt that the Crown has established an attack beyond reasonable doubt. [11] With respect to the fourth incident, that was on the 25th of September, the evidence was that the dog ran through Mrs. Barks’ yard and then ran elsewhere, to the extent that Mr. Zawislak had understood that that was what had caused his daughter’s upset. There’s not any evidence before the Court with respect to an attack on any human. The evidence again goes, in the Court’s opinion, to whether Mr. Federuik took reasonable steps to avoid the offence occurring. [12] And dealing then with that latter matter, whether Mr. Federuik had taken reasonable steps on any of these occasions to ensure that his dog did not attack someone in the fashion prohibited by s. 135.3(3) of The Urban Municipality Act, in my opinion it’s irrelevant at law that after a dog attacks it responds to its owner’s commands. That’s after the fact. But that doesn’t deal with whether an attack, in fact, occurred or whether the dog then does respond if the owner commands it to. Nor in my opinion is it relevant in law that the dog is docile with family members or even with, in this case, Mr. Derbowka. The issue is: Should the owner know that there’s possibility that the animal may attack human, and what does the owner do having such knowledge of that? And in that latter regard, there are seven specific pieces of evidence that I want to point to as backing up my conclusion that Mr. Federuik did not take reasonable steps. [13] There is clear evidence that on the occasion when Mrs. Barks was in her back alley, the dog escaped through the garbage can enclosure. There is similarly evidence that he went through Mrs. Barks’ -- sorry, that there was a second occasion when, on Mr. Federuik’s admission, he came into the back yard and his daughter had either gotten the dog off its logging chain leash, which would indicate that there weren’t reasonable steps taken to prevent a small person, a small child, or the dog from getting free itself. Somehow, inexplicably, the dog got off its leash. Again, both of those either of those possibilities indicate to the Court, without some explanation, that there weren’t reasonable steps being taken, particularly if small child could remove the leash. [14] Thirdly, that there’s clear evidence that the dog was not sufficiently restrained or enclosed, that it ran from its yard and attacked the lady that was attending the garage sale. The evidence was that the dog was at or near Mr. Federuik’s feet, but nevertheless there wasn’t sufficient scheme in place, if could put it that way, by Mr. Federuik to make sure that if the dog decided to get up and leave he wasn’t able to stop it immediately. [15] Fourthly, there’s clear evidence that the dog, in some fashion, was free to run on to Mrs. Barks’ step, and the basis on which the dog was free to do that was not adequately explained, nor was there any suggestion that Mr. Federuik had taken immediate steps just before that to make sure the dog wasn’t on the loose. On the 25th of September incident, the dog was free to run through Mrs. Barks’ back yard and then into the alleyway where it upset Mr. Zawislak’s daughter. [16] Sixthly, that Mr. Federuik considered it necessary in September of 2001 to attempt to keep the dog chained by logging chain affixed to post. This, in the Court’s opinion, doesn’t suggest that he thought he had an animal that should be of no concern to others. logging chain is pretty substantial way of tethering dog, and if person had no concerns at all in that regard, one would not expect dog to be attached to logging chain. [17] And finally, with respect to the matter of the leashing of the dog and the logging chain, Mr. Federuik’s evidence now is that since he’s moved, he continues to keep the dog on logging chain and affixed to four-inch pole inside completely enclosed high fence. All of these, and particularly the fact that he thought it was necessary to chain the dog in September, and he continues to think it’s necessary to chain it and now enclose it, indicates, in the Court’s opinion, the concern that this animal might well cause injury, or at the very least fright to any passerby or person that the dog came into contact with. [18] In light of all of that, conclude that Mr. Federuik has not established that he took reasonable steps such as would exempt him from conviction under this section of The Urban Municipalities Act, and accordingly find him guilty of the incidents alleged on the 9th of September with Mrs. Barks in her yard, and with respect to the lady leaving the garage sale on September the 15th. MAY 22, 2002: Thank you. Well, in passing the sentence that do, Mr. Federuik, take account, obviously, of the evidence that heard at the trial. also take into account the fact that the Province has provided this legislation under which you have been charged, and that both looking at the section you’ve been charged under, and more generally under the entire section dealing with dogs kept by owners, that the purpose of the legislation was to give people in the community who don’t have dogs, or who are neighbours, or who are simply walking down street in an urban community, peace of mind that they’re not going to be run at, let alone bit or badly injured by dog, and the legislation reflects that purpose. And it seems to the Court that it’s appropriate to craft sentence which reflects that general purpose, taking into account, in your case, as Mr. Saretzky says, what you have done yourself to deal with the problem. You do have an animal, which certainly appeared to the people that it ran at and the other people who gave evidence, to have the potential to inflict serious injury. And the fact that it didn’t is fortunate, but it certainly caused those people at whom the dog ran to fear for their personal safety, and think when you have an animal of this size that snarls or barks in vicious-sounding fashion that it’s quite reasonable and objectively reasonable for people on the street and neighbours to be concerned about their safety. [20] Accordingly, with respect to the sentence in this case, I’m of the view, in light of what you’ve done since, that the important consideration is to make sure that this dog does not present a risk to anyone on or off your premises, and my view is that the appropriate fine in the circumstances is $200, and that’s the fine that I impose. [21] In addition, am of the view that: (a) The dog must be kept within an enclosed fence and the fence must be continuous, surrounding the perimeter of your property and include a gate or gates which prevent the dog from exiting the property except when on a leash. (b) That the dog must be kept within the enclosed fence, and unless on a leash shall be chained to a four-by-four post embedded in the ground to a depth of three feet. The chain shall be attached to the post by means of three-quarter-inch diameter eye-bolt or similar attachment, which eye-bolt shall run through the post at height not more than four inches above the ground, and the eye-bolt or similar attachment shall be secured by flat washers on either side of the eye-bolt at the point where the eye-bolt meets the four-by-four. (c) If you remove the dog, and this is in accordance with 5(b) of s. 135.2, if you remove the dog from the enclosed fence, you shall muzzle and leash it in accordance with prescribed criteria (and those criteria are set out in the Regulations), and keep the dog under your direct control and supervision. (d) You shall obtain and keep in effect liability insurance in an amount not less than $300,000 to cover damage or injury caused by the dog. MR. PARKER: wonder if you might set deadline for that? THE COURT: Yes, I’m going to. And you shall within two weeks of today’s date, provide proof of such liability insurance to the Nipawin Detachment of the RCMP. (e) You shall display sign is the sign presently in the front of the property? MR. FEDERUIK: It’s right on the front, right by his dog house. THE COURT: So you shall display a sign on the fence enclosing the dog, warning of the presence of the dog with the following wording, “Guard Dog on Duty, Beware of Dog,” and you shall continue to display the sign in good condition as long as the dog is present on the property. (f) Sub-section (e) of s. 135.2 is simply requirement that you comply with the Regulations and The Animal Disease and Protection Act with respect to detection and control of rabies, but I’m going to include that. (g) I’m going to include clause (g) of 135.2(5) and require that where the dog is moved to different municipality you shall notify the Clerk of that municipality. (h) Where the dog is to be sold or given away, you shall notify any prospective owner of this Court Order before it is sold or given away, and you shall notify the Clerk of the municipality of the name, address and telephone number of any new owner of the dog. And believe that covers all of the conditions that the Court considers are necessary. [22] good number of those Mr. Federuik has already complied with, and unless you have any other conditions or any submissions with respect to those, Mr. Saretzky, those will be the conditions. MR. SARETZKY: think those are satisfactory, Your Honour. nan END OF PROCEEDING ON TAPE RECORDING

The accused was charged with owning a dog that without provocation attacked a person contrary to the Urban Municipality Act s.135.3(3). There were four separate incidents involving the dog in September 2001. At issue was whether the Crown had proven an attack on any of the four occasions. The accused agreed that the presumption of non-provocation set out in s.135.2(1) of the UMA applied and that presumption had not been displaced. HELD: 1)A $200 fine was imposed along with conditions. The dog must be kept within an enclosed continuous fence and chained to a post. There must be a gate preventing exiting except while on a leash and muzzled. The owner must display a sign stating Guard Dog on Duty. 2)If dog is territorial or protective, and the facts show the human has, by intruding, been in law provocative, the offence may not be proven beyond reasonable doubt. On the evidence there was no intrusion sufficient to justify an attack or which could be considered provocation. 3)There were seven specific pieces of evidence which supported the conclusion that the owner did not take reasonable steps to ensure his dog did not attack someone in the fashion prohibited by s.135.3(3). It is irrelevant at law that after dog attacks it responds to its owner's commands. The dog escaped the yard, was off leash and was not sufficiently restrained or enclosed. logging chain affixed to post is substantial way of tethering dog. One would not expect dog to be attached to logging chain if there were no concerns.

e_2002skpc80.txt

S.C.C. No. 02316 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION Macdonald, Hallett and Chipman, JJ.A. and HER MAJESTY THE QUEEN Respondent Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on December 15, 2007. G. F. Philip Romney for the Appellant Kenneth W. F. Fiske for the Respondent Appeal Heard: December 7, 1990 Judgment Delivered: December 7, 1990 THE COURT: Appeal dismissed per oral reasons for judgment of Macdonald, J.A.; Hallett and Chipman, JJ.A. concurring. Publishers of this case please take note that s. 59 (2) of the Children's Services Act applies and may require editing of this judgment or its heading before publication. Section 59 (2) provides: "59 (2) No report of hearing or proceeding under this Act in which the name of the child or his parent or guardian or in which the identity of the child is otherwise indicated shall be published, broadcast or otherwise made public by any person without the special leave of the judge. 1976, c. 8, s. 59." The reasons for judgment of the Court were delivered orally by: MACDONALD, J.A.: The appellant was convicted after trial in the County Court Judge's Criminal Court for District Number Two on bill of indictment alleging that he sexually assaulted his stepdaughter between July 1, 1987 and August 31, 1989. The girl was 11 years old when the alleged assaults began. The child's testimony was that the sexual acts took place primarily at her home, usually on Friday nights when her mother was working and her sister had gone to visit her brother and his girlfriend. The complainant said that the sexual activities started out as fondling and eventually to full sexual intercourse. She also testified that the appellant attempted anal intercourse with her but she said she thought that he was unsuccessful. The complainant also testified that the appellant had intercourse with her at cottage. The complainant's mother, sister, brother and the latter's girlfriend flatly contradicted the complainant as to the time she says the acts took place. Her sister testified that except for two Fridays during the time in question she was home every Friday night with the complainant and nothing untoward occurred. There was no contradiction of the complainant's testimony of the sexual assault at the cottage. The appellant's defence was complete denial of the allegations. Two medical doctors gave evidence from which the reasonable and rational conclusion could be drawn that the complainant had had sexual intercourse, both vaginal and anal, on numerous occasions. The Crown also called social worker trained in counselling families and children. She was qualified by the court to give opinion evidence with respect to recognizing, accepting and counselling with respect to symptoms of child sexual abuse. She testified that she interviewed the complainant and others involved in the case and concluded that the child exhibited many of the symptoms often found in children who have been sexually abused, such as depression, attempts to block out recollection of events, low self‑esteem, lack of trust in others and an inability to be specific as to details. In R. v. G.B. et al (1988), 1988 CanLII 208 (SK CA), 65 Sask.R. 134 at 149, Wakeling, J.A., said: think it can now be taken that evidence of an expert, in the nature of that given by Dr. Wollert as to the psychological and physical conditions which frequently arise as result of sexual abuse of child, is admissible. It provides assistance to the trial judge in concluding whether an assault has occurred." On appeal to the Supreme Court of Canada, R. v. B.(G.), 1990 CanLII 115 (SCC), [1990] S.C.R. 57, 56 C.C.C. (3d) 161, Madame Justice Wilson, speaking for the court said (p. 220): "... agree with Wakeling J.A.'s conclusion that the expert evidence in this case was well within the bounds of acceptable and admissible testimony and that in cases of sexual assault against children the opinon of an expert often proves invaluable." On this point, see also R. v. Lavallee, 1990 CanLII 95 (SCC), [1990] S.C.R. 852, C.R. (3d) 329 at 357. In our opinion, the evidence of the social worker in this case was admissible. It provided assistance to the trial judge in concluding whether an assault had occurred. The trial judge reviewed the evidence in detail and referred specifically to the testimony of the other members of the complainant's family that contradicted her evidence that the sexual assaults occurred on Friday night at her home. In R. v. B.(G.), supra, Madame Justice Wilson said (pp. 219‑220): "...While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years we have adopted a much more benign attitude to children\'s evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the \'reasonable adult\' is not necessarily appropriate is assessing the credibility of young children." It is probable that the complainant was not sexually molested every Friday night by the appellant. The last referred to comments of Wilson, J., are relevant to the present case. It follows, in our view, that even though the complainant must have been mistaken as to the number of Friday nights she was sexually molested, such misconception on her part, under all the circumstances of this case, does not destroy her credibility. The trial judge noted that the evidence of the complainant had been consistent and given in reasonable manner. He said that if the evidence was only that of the appellant and the complainant "it would be something of standoff". He went on, however, to refer to the evidence of the social worker and of the two medical doctors. He then found that the complainant had given her evidence in creditable manner and one worthy of belief and proceeded to convict the appellant. The one rather disturbing feature of this case is that the Crown called as witness Miss. V. who was counsellor at the junior high school attended by the complainant. Miss. V. testified that on September 8, 1989, the complainant came to her office in rather distraught condition. After being questioned by Miss. V., the complainant said she was having difficulty with her stepfather. In response to direct questions put to her by Miss. V., the child said that her stepfather had touched her breasts and inside her pants. She said that that had been going on for several years. Those were the only details of sexual assault that she gave to Miss. V.. Defence counsel objected to the evidence of Miss. V. on the ground, as understand the record, that it related to period of time outside the time frame of the information. The learned trial judge, however, ruled that the evidence of Miss. V. was admissible, not to prove the commission of the offence, but as going to the credibility of the complainant. Miss. V. was competent to testify regarding the complainant's emotional state. Her evidence, however, of what the latter told her was hearsay and inadmissible. The trial judge therefore, in our opinion, erred in law in allowing such evidence and as treating it as relevant to the complainant\'s credibility if, in fact, that is what he actually did. Other passages contained in the record and in the decision clearly indicate to us that the trial judge was aware that any evidence that could be categorized as "oath helping" was not to be considered. The question then is whether the admission of the hearsay evidence of Miss. V. was an error so grave as to call for a quashing of the conviction. After consideration of the entire record, we have concluded that it does not. We have reached this conclusion for the following reasons. The medical evidence establishes beyond doubt that the complainant had been the victim of repeated acts of both vaginal and anal intercourse. These were sexual assaults. The only issue, therefore, was the identity of the person who had committed such sexual assaults. The trial judge found that the complainant's evidence had been consistent throughout and had been given in reasonable manner "worthy of belief". It is to be noted that the sexual assaults with which we are here concerned are really the acts of intercourse, yet all the complainant told Miss. V. was that her stepfather had touched her breasts and inside her pants. Finally, the learned trial judge found that over the time frame covered by the information he was left "in little doubt that opportunities could and did present themselves for E.L.H. to have had relationship with [the complainant]." Although such opportunity may not have been exclusive, it appears that it was close to being so. The trial judge went on to say that "the evidence is that she (the complainant) was kept close to home ... and apparently it was very strict home. The mother did not allow [either the complainant or her sister] to be absent from home, did not allow them normal social interchange with other young people ...". The trial judge then went on to say that he believed the evidence of the complainant as to the fact that there were times when she was alone with her stepfather. Under the circumstances, we would therefore invoke the curative provisions of s. 686(1)(a)(iii) of the Code and hold that the error of the trial judge in admitting in evidence what the complainant told Miss. V. did not result in any substantial wrong or miscarriage of justice. In Yebes v. The Queen, 1987 CanLII 17 (SCC), [1987] S.C.R. 168, 36 C.C.C. (3d) 417, the Supreme Court of Canada said that the function of the Court of Appeal was to determine on the whole of the evidence whether the verdict is one that properly instructed jury, acting judicially, could reasonably have rendered. The court went on to say that while the Court of Appeal must not merely substitute its view for that of the jury, in order to apply the test the court must re‑examine and, to some extent, reweigh and consider the effect of the evidence. This we have done and have concluded that the verdict of the trial judge was one that he could reasonably have reached on the evidence before him. In result, the appeal against conviction is dismissed. J.A. Concurred in: Hallett, J.A. Chipman, J.A. CANADA PROVINCE OF NOVA SCOTIA 1990 S.C.C. No. 02316 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION on appeal from the COUNTY COURT, JUDGE'S CRIMINAL COURT FOR DISTRICT NUMBER TWO BETWEEN: HER MAJESTY THE QUEEN E.L.H. HEARD BEFORE: The Honourable Judge Gerald B. Freeman PLACE HEARD: Bridgewater, Nova Scotia DATES HEARD: April 26, 1990 and June 11, 1990 COUNSEL: Lloyd Tancock, Esq. for the Prosecution G. F. Philip Romney, Esq. for the Defence CASE ON APPEAL S.C.C. No. 02316 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT BY: MACDONALD, J.A. (orally)

Where a child's testimony as to repeated acts of sexual assault was not accurate as to precise details of the time and place of the events, but was otherwise reasonable and consistent, the inexactitude did not destroy the child's credibility. Evidence of an expert specializing in recognizing symptoms of child sexual abuse was admissible evidence to assist the trial judge in assessing whether an assault took place. However, evidence of the complainant's school counsellor was inadmissible as hearsay, but notwithstanding, its admission was not so grave an error as to call for a quashing of the conviction. The conviction was determined to have been a verdict which a jury acting judicially could reasonably have rendered.

8_1990canlii4256.txt

SCHERMAN QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2018 SKQB 197 Date: 2018 07 10 Docket: CRM 135 of 2016 Judicial Centre: Battleford BETWEEN: HER MAJESTY THE QUEEN and GORDON JOSEPH FIDDLER Counsel: Suzanne M. Reid for the Crown Greg A. Chovin for the accused SENTENCING DECISION DOVELL J. July 10, 2018 [1] Although Gordon Joseph Fiddler was originally charged with second degree murder with regard to the death of his cousin Tommy Fiddler, on November 3, 2017, the Court found him not guilty of second degree murder but guilty of manslaughter. written decision of November 3, 2017, outlines the Court’s reasons for the verdict of guilty of manslaughter and it is not the intention of the Court to repeat once again all of the reasons for that verdict but only the relevant facts to this sentencing decision. [2] Earlier at the commencement of the trial on July 13, 2017, Gordon Joseph Fiddler pled guilty to possession of firearm while prohibited from doing so. That firearm was the weapon used by Gordon when he fatally shot Tommy once in the head on February 25, 2016, at the Waterhen Lake First Nation. [3] This sentencing decision is with regard to both the manslaughter conviction pursuant to s. 236(a) of the Criminal Code, RSC 1985, C-46, and his guilty plea to possession of firearm while prohibited from doing so contrary to s. 117.01(1) of the Criminal Code. [4] Since the Court’s November 3, 2017, decision both Crown and defence counsel have changed. The new defence counsel on January 10, 2018, requested stand-alone dedicated Gladue Report (R Gladue, 1999 CanLII 679 (SCC), [1999] SCR 688) be prepared by Christine Goodwin which the Court ordered as it was obvious to the Court from the evidence heard during the pre-trial applications and the trial proper that there were numerous Gladue factors that the Court should have further information about during the sentencing stage of this matter. The Court received the very thorough Gladue Report completed by Christine Goodwin on June 1, 2018, and counsel provided the Court with their sentencing submissions on June 8, 2018 referring to multiple, meaningful case law for the consideration of the Court. During the sentencing submissions the Crown presented six victim impact statements of the siblings of the victim Tommy Fiddler; two of his sisters and four of his brothers; collectively marked as Exhibit P12. This matter was adjourned until today’s date for formal sentencing. 2. Sentencing positions of the Crown and defence [5] It is the position of the Crown that global sentence of 15 years is appropriate in this case considering the multiple aggravating factors present including the use of firearm in the death of Tommy Fiddler; Gordon’s serious criminal record including 55 previous convictions 17 of which are for violent offences; Gordon being subject to firearms prohibition at the time of the offence; Gordon rewarding Tommy’s act of kindness in giving Gordon place to live with an act of violence and Gordon’s total lack of remorse. The Crown suggested that in the specific circumstances of this case one year concurrent sentence should be imposed for the possession of firearm while prohibited from doing so. While such charge can be considered by the Court in some cases as “separate and distinct” offence, in the circumstances of this case the Crown’s position was that it was appropriate to sentence Gordon to concurrent sentence to that of manslaughter. The Crown proposed that Gordon be given credit for the remand time he has spent since being arrested on February 25, 2016 at 1.5 to resulting in remand credit of years months as of today’s date. That would result in net global sentence of 11 years and months. [6] The Crown, however, is asking that the Court make an order pursuant to s. 743.6(1) of the Criminal Code which would require Gordon serve one half of his sentence before being eligible for parole or in this case further years 11 months before being eligible for parole if the Court imposed 15 year global sentence. [7] The Crown is also asking that the Court impose DNA order as manslaughter is primary designated offence, lifetime mandatory firearm prohibition pursuant to s. 109 of the Criminal Code order and mandatory weapons forfeiture pursuant to s. 491(1)(a) of the Criminal Code with regard to the weapon used in the offence being Cooey, Model 39, single-shot bolt-action rifle, bearing Serial No. CTO18886. The Crown took no position with regard to the mandatory victim surcharge pursuant to s. 737 of the Criminal Code which would be $400.00 in this case and in default four days to be served. [8] It is the position of the defence that global sentence of eight years is appropriate in this case; the possession of firearm while prohibited from doing so conviction being one year concurrent sentence to an eight year sentence for manslaughter. The defence argued that an eight year sentence is in the mid-range of sentences imposed for manslaughter within the guidelines as provided within Hathway, 2008 SKQB 480 (CanLII), 327 Sask 129 [Hathway], and that this case is not an “exceptional” or “most unusual” offence which called for harsher sentence than was an acceptable sentence for manslaughter in this province. The defence argued that while serious offence, the circumstances of this case did not warrant the 15 year sentence being requested by the Crown. [9] Although Gordon personally wanted enhanced credit for the time he has spent on remand at rate greater than 1.5 to 1, defence counsel agreed that the remand credit being proposed by the Crown at rate of 1.5 to was reasonable. [10] The defence’s position is that it is not necessary or appropriate to impose s. 743.6(1) order in this case. The defence’s position is that the Court should not impose an order pursuant to s. 743.6(1) of the Criminal Code primarily as result of the Court having to recognize the multiple Gladue factors in this case that have to be addressed. To tie the hands of the Correctional Service Canada [CSC] in the handling of Gordon’s programming while in penitentiary addressing his multiple complex needs, the vast majority of which were Gladue related, would be counter-productive and not in anyone’s best interest. The defence suggests to let the CSC do their work without being impeded by the Court’s arbitrary imposition of such an order that would result in Gordon not being eligible for parole until he had served half of his sentence. It is suggested by the defence there may very well be restorative programs available that Gordon would be suitable for that could not be accessed if the Court made such an order. With regard to the ancillary orders being requested the defence did not take position. 3. Criminal Code Provisions [11] consider the following sections of the Criminal Code to be relevant and have taken them into consideration. Manslaughter 236 Every person who commits manslaughter is guilty of an indictable offence and liable (a) where firearm is used in the commission of the offence, to imprisonment for life and to minimum punishment of imprisonment for term of four years; and (b) in any other case, to imprisonment for life. Purpose and Principles of Sentencing Purpose 718 The fundamental purpose of sentencing is to protect society and 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 and the harm done to victims or to the community that is caused by 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 or to the community. Fundamental principle 718.1 sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Other sentencing principles 718.2 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, (b) sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. Power of court to delay parole 743.6 (1) Notwithstanding subsection 120(1) of the Corrections and Conditional Release Act, where an offender receives, on or after November 1, 1992, sentence of imprisonment of two years or more, including sentence of imprisonment for life imposed otherwise than as minimum punishment, on conviction for an offence set out in Schedule or II to that Act that was prosecuted by way of indictment, the court may, if satisfied, having regard to the circumstances of the commission of the offence and the character and circumstances of the offender, that the expression of society’s denunciation of the offence or the objective of specific or general deterrence so requires, order that the portion of the sentence that must be served before the offender may be released on full parole is one half of the sentence or ten years, whichever is less. 4. The Gladue Report [12] The lengthy Gladue Report as prepared by Christine Goodwin was very helpful to the Court as it focused on Gordon as opposed to general aboriginal background information. In preparing the report Ms. Goodwin contacted eight members of Gordon’s family, Gordon himself and the A/Regional ATIP Liaison of CSC. She reviewed 19 documents and attached appendices to her report. Although it appears she did not have Gordon’s up‑to‑date criminal record she made reference to the information she had about his past criminal record. She identified on the final page of the report proper the following specific background factors to restorative justice considerations in Gordon’s case: Poverty Unstable home/housing Residential school Loss of culture and language Physical abuse Sexual abuse Alcohol and drug abuse Abuser Several children broken family life Criminal record. [13] As previously indicated, it was apparent to the Court during voir dire held with regard to the admissibility of recorded utterances Gordon made while in the police vehicle as he was being transported from Waterhen to the Meadow Lake RCMP detachment there were multiple Gladue factors to be addressed. Within those utterances Gordon disclosed multiple deep-rooted issues he had with “white men”, “the police” and “his community”. Those unresolved issues were also repeated by Gordon during the warned statement he gave to the RCMP at the Meadow Lake RCMP detachment. Gordon’s problems with alcohol and to what extent it had taken over his life were confirmed by his actions both before and after he shot his cousin Tommy on February 25, 2016. It was readily apparent to the Court that Gordon had longstanding unresolved issues regarding his upbringing and was very resentful of his community. These multiple Gladue factors to be addressed by Gordon were confirmed within the Gladue Report prepared by Christine Goodwin. 5. Aggravating and Mitigating Factors [14] There are multiple aggravating factors to be considered by the Court including Gordon’s extensive serious criminal record since 1971. He has 55 convictions on his criminal record; 17 of which are for violent offences. It should be noted, however, that there are several significant gaps in his criminal record; the defence suggesting that those periods reflect times during which Gordon had temporarily overcome his demons with alcohol. Gordon’s use of firearm in the death of his disabled cousin is also very much an aggravating factor as well as the relationship as between Gordon and his cousin at the time of Tommy’s death. Tommy had allowed Gordon and his then partner, Ham, to live in his home as Gordon’s house had recently burned down. As described by the Crown; Tommy’s act of kindness was rewarded by an act of violence on Gordon’s part. It is apparent from the six victim impact statements filed that Tommy’s siblings are still afraid of what might possibly happen to them if Gordon were to ever come back to the reserve. As well, Gordon was on mandatory firearm prohibition at the time of the offence. Notwithstanding that firearm prohibition he willingly accepted firearm from niece to hunt rabbits and prairie chicken. Lastly, Gordon has shown no remorse since he in drunken stupor shot his cousin Tommy in the head for no apparent reason. As previously indicated, after Gordon was arrested and was being taken to the Meadow Lake RCMP Detachment for processing he was recorded while in the police vehicle. As stated at paragraph 23 of the Court’s July 26, 2017 ruling on the voir dire, sampling of what Gordon said during that transport included: [23] All of the completely unsolicited statements made by Gordon during that one hour thirty-three minute audio recording can only be described as belligerent “vulgar rant” regarding his personal views of white men being rapists and pedophiles. Certain parts of his statements include what can be possibly interpreted as his daring the RCMP members to kill him. Such utterances as “Kill me. Shoot me today, you fuckers. I’ll dare you. don’t care. I’ll die for it.” And at page of the transcript of that indecent rant on the recording Gordon says: ... Fuck you guys. Fuck you goddamn white man and your system. Fuck that [unintelligible]. Fuckin’ fat bastard. killed him and loved it. killed him and I’ll kill him again. [unintelligible] kill him and killed him. [15] When asked as to whether or not he had anything to say before the Court sentenced him Gordon’s only concerns were that he had never had bail hearing, that the prosecutor who had conducted the trial had not bothered to show up for sentencing submissions and that he wanted to make it clear that there was no deliberation on his part to shoot Tommy. There was no mention of his being remorseful for the death of his cousin Tommy. The Crown’s position was that Gordon acting out potential “accident” defence during his warned statement was an indication that he was not remorseful for what he had done but was just trying to make up an excuse for what had happened. [16] On the other hand there is one huge mitigating factor and that is the multiple Gladue factors relevant to Gordon taken as a whole. Both of his parents attended residential schools. At the age of years old Gordon was also sent to residential school where he remained until he was 12 years old. While at the Beauval Indian Residential School Gordon was physically and sexually abused. Gordon’s cousin Sidney witnessed the atrocities that Gordon suffered while at the residential school. When Gordon returned home to Waterhen Gordon’s life spiraled out of control, he turning to drugs and alcohol. According to Gordon’s criminal record he then began criminal activities that would see him incarcerated for many years during his life. [17] Gordon has been chronic alcoholic for 50 years or since he was 14 years of age. On the date of sentencing submissions Gordon turned 65 an age when most people are thinking about retirement; Gordon is thinking about his foreseeable future being in federal penitentiary. [18] The Alberta Court of Appeal in LaBerge, 1995 ABCA 196 (CanLII), 165 AR 375, outlined number of factors court may want to consider in determining fit sentence for manslaughter. Those factors, although certainly not exhaustive, include characterization of the act itself, the choice of weapon used in the offence, the degree of force the offender used to perpetrate the act, the extent of the victim’s injuries, the degree of violence or brutality involved, the existence of any gratuitous violence, the degree of deliberation involved in the act, the extent to which the act reflects forethought or planning, the complexity of the act, what provoked the act, if anything, and the time that was taken to perpetrate the act. In other words, although not exclusive to manslaughter sentencing, the specifics of the offence, the victim and the offender must be carefully considered by the Court in considering an appropriate sentence for manslaughter as the circumstances of the offence of manslaughter are very diverse. [19] As stated by this Court in Hathway at paragraph 33: 33 The offence of manslaughter is unique offence in Canadian criminal jurisprudence in that it covers very broad spectrum of circumstances, all of which are characterized as possessing the criminal culpability required for the commission of the offence of manslaughter. The spectrum reflects the endless combination of circumstances which may give rise to the offence and ultimately, is an offence which for the purpose of sentencing, requires thorough analysis of the existing sentence precedents, the circumstances of the offence and the circumstances of the offender. And at paragraph 36 the Court concluded: 36 In considering the relevant decisions of the Saskatchewan Court of Appeal and various decisions of the Saskatchewan Court of Queen’s Bench which have not been subject to appeal, have concluded that the appropriate range of sentencing for the offence of manslaughter in the Province of Saskatchewan is between four years and 12 years. There are isolated instances of sentences less than four years, and sentences greater than 12 years, however they are indeed exceptional, and in my view, sentence falling outside of the range of four years to 12 years ought to occur only in the most unusual, exceptional or extenuating of circumstances. distillation of the sentencing principles articulated in ss. 718, 718.1 and 718.2 of the Criminal Code, along with the circumstances of the offence and the circumstances of the offender, will result in the vast majority of instances, in sentence falling within this range. [20] In considering the range of sentences available for the offence of manslaughter this Court has also considered the comments of our Court of Appeal in Keepness, 2010 SKCA 69 (CanLII) at para 29, 359 Sask 34: 29 agree with this general review of the law, except for one refinement. The judge in Hathway describes sentences that fall outside the range as being “exceptional” or occurring “only in the most unusual, exceptional or extenuating circumstances.” As has been indicated, review of the case law bears out the statement that there is usual range for manslaughter at least for manslaughters involving brutality and alcohol or drugs from four to 12 years, but it overstates the matter to conclude that departures from range occur in the most unusual or exceptional circumstances only. This language may lead judge to conclude incorrectly that the lower and upper limits of the range are more fixed than they are, or that they are to be departed from in only the rarest of cases. No matter how one tries to delimit the type of case for which the range for manslaughter is being set, the description will remain nebulous and the circumstances variable. Correct application of the principles of sentencing should mean there are fewer sentences falling outside the range for manslaughter than within it, but in the exercise of their discretion, judges may depart, without introducing disparity, where the circumstances of the case are beyond those customarily found at the lower or upper ends of the range. [21] In this case there had been no fight, argument or violence between Tommy and Gordon before Tommy was shot by Gordon. As stated in paragraph 18 of the Court’s November 3, 2017 decision the facts of this case are not complex. [18] Ham assisted Gordon up the ramp, and after they entered the house, Gordon went straight to his bedroom with what was left of his case of Pilsner beer, muttering and babbling something in Cree to Tommy as he passed him in the living room. Michael and Tommy were sitting at table playing cards in the living room. Gordon made comment in Cree to Tommy as he passed him, “your mother had told me that you murdered your brother.” Ham went directly to the kitchen and tended to pot on the stove. Within moments, Gordon came back out from the bedroom and once again said to Tommy in Cree the same thing about Tommy’s mother having told him that Tommy was responsible for the death of his brother, Rocky. Tommy in Cree replied to Gordon “not to believe everything you hear,” after which Gordon pointed the gun at Tommy and shot him in the head and more specifically his right temple area. [22] While in severely drunken state Gordon shot Tommy once in the right temple area. Tommy died instantly. Gordon did not try to get away but just went back to his bedroom and fell asleep in his drunken stupor until the RCMP arrived and arrested him. accept that there was no forethought or planning on Gordon’s part in the shooting of Tommy. It happened very quickly and from all accounts from the eye witnesses in Tommy’s residence at the time this crime was totally senseless. [23] Although the Crown provided the Court with multiple cases, the Crown is relying primarily upon three cases: Hathway Ross, 2006 SKCA (SentDig) 16 [Ross] Stonechild, 2017 SKQB 138 (CanLII) [Stonechild] in support of its request for 15 year global sentence with no parole eligibility until Gordon has served half of that sentence pursuant to s. 743.6(1) of the Criminal Code. [24] The Court in sentencing an individual for any offence must sentence that specific person for the specific offence he or she has committed in the unique circumstances of that offence. There is no such thing as “simple” sentencing. Each sentencing takes on life of its own. [25] Amongst the multiple principles of sentencing is the provision of s. 718.2 of the Criminal Code which states that the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. It is thus important that the Court review all of the cases provided to it by counsel but, in particular, the three cases the Crown is primarily relying upon in support of its position that 15 year sentence is appropriate in this case. [26] In Hathway the accused, age 49, pled guilty to manslaughter. He had an extensive criminal record including 57 prior convictions of which were for violent offences. The victim was his 84-year-old landlord who suffered 10 stab wounds, the most serious being the severing of his left jugular vein. That tragically resulted in the landlord bleeding to death. At the time of the offence the accused was intoxicated by alcohol and/or drugs and his attack on his landlord displayed sustained attack on vulnerable person. The accused was sentenced to 11.5 years less credit for his remand time of 7.5 years resulting in net sentence of years’ imprisonment. [27] There were no Gladue factors to be considered as Mr. Hathway was not aboriginal. [28] In Ross the accused was 54 years of age. joint submission by the defence and Crown was presented to the Court of 10 years with the provision that he must serve years before being eligible for parole. The Court of Appeal dismissed the sentence appeal. The accused, who was drinking heavily at the time, shot the victim and the victim was killed instantly. The criminal record of the accused included three firearm charges and two alcohol offences, however, there was gap in his record from 1994 to 2006. The accused was not aboriginal and thus the Gladue factors were not consideration of the Court. [29] In Stonechild the 58-year-old accused was charged with second degree murder. jury returned verdict of manslaughter. He had lengthy criminal record including 63 convictions; of which were for violence. The victim was 84 years of age with mobility issues and was unable to defend himself. The victim had extended hospitality to the accused who in drunken “spur of the moment” event killed the victim who sustained minimum of 20 lacerations, all of which were consistent with his having been struck with his own cane. number of these blows were delivered to the victim’s face, some with sufficient force that both eyes were essentially destroyed, with one eye almost entirely displaced from its orbit. The victim was also stabbed with knife 14 times, with 12 knife wounds to his chest and to his abdomen. There were two additional stab wounds to the abdomen, apparently inflicted by screwdriver. There were multiple Gladue factors that the Court considered in sentencing the accused ultimately to 15 years. [30] Defence counsel provided the Court with six cases, of which two were manslaughter cases which resulted in sentences of four and one-half years and eight years. Although defence counsel indicated he was not intending to rely specifically on any of these cases, the cases were provided for the Court’s assistance only. [31] The Court has also considered the other case law as provided to it by counsel which resulted in sentences for manslaughter ranging from 1/2 years to 15 years. [32] At this juncture what the Court must decide is where within this spectrum of case law Gordon Fiddler fits in. Having considered all of the purposes and principles of sentencing as outlined in ss. 718, 718.1 and 718.2 of the Criminal Code including the totality principle and the Gladue factors the Court has determined that a global sentence of 10 years is appropriate in this case to be served in a federal institution on the manslaughter conviction. [33] Although s. 117.01(1) of the Criminal Code conviction has sometimes been treated by the courts as “separate and distinct” offence, in the circumstances of this case and as agreed by counsel for the Crown and defence the Court is prepared to impose concurrent sentence of one year to the ten year sentence the Court has imposed for the manslaughter conviction. [34] As agreed by counsel for the Crown and defence Gordon shall be given credit of three years, seven months pursuant to s. 719 of the Criminal Code for the time he has spent on remand since being arrested on February 25, 2016 to today’s date at the rate of 1.5 to 1. That results in net global sentence of six years, five months to be served in federal penitentiary. [35] The Court must lastly determine as to whether it is appropriate to make an order pursuant to section 743.6 of the Criminal Code. That section provides: Power of court to delay parole 743.6 (1) Notwithstanding subsection 120(1) of the Corrections and Conditional Release Act, where an offender receives, on or after November 1, 1992, sentence of imprisonment of two years or more, including sentence of imprisonment for life imposed otherwise than as minimum punishment, on conviction for an offence set out in Schedule or II to that Act that was prosecuted by way of indictment, the court may, if satisfied, having regard to the circumstances of the commission of the offence and the character and circumstances of the offender, that the expression of society’s denunciation of the offence or the objective of specific or general deterrence so requires, order that the portion of the sentence that must be served before the offender may be released on full parole is one half of the sentence or ten years, whichever is less. [36] The guiding principles are outlined in ss. (2) of s. 743.6 of the Criminal Code. Those guiding principles are expressed as “... the paramount principles which are to guide the court under this section are denunciation and specific or general deterrence, with rehabilitation of the offender, in all cases, being subordinate to these paramount principles”. [37] Although the Crown provided the Court with no case law in support of its request for an order pursuant to s. 743.6 of the Criminal Code the Court is familiar with Zinck, 2003 SCC (CanLII), [2003] SCR 41 [Zinck]. Zinck held that the Crown must demonstrate foundation for such additional rigour in the sentencing of the offender. Specific relevant paragraphs of Zinck include: 30 The position of s. 743.6 in the Criminal Code signals that it should not be applied in routine manner. The power should not be exercised in mechanical or automatic way, nor invoked in connection with every jail term imposed for an offence covered by s. 743.6. The judge must once again apply the sentencing factors. And at paragraph 31: 31 the court must arrive at its conclusion as to whether this additional punishment is required. The prosecution has the burden of demonstrating that it is. The judge must satisfy himself or herself that the order is needed to reflect the objectives of sentencing, with awareness of the special weight ascribed by Parliament to the social imperatives of denunciation and deterrence. And lastly at paragraph 33: 33 The decision to delay parole remains out of the ordinary, but may and should be taken if, after the proper weighing of all factors, it appears to be required in order to impose form of punishment which is completely appropriate in the circumstances of the case. [38] The Court has concluded that it is not appropriate in this case to make an order pursuant to s. 743.6 of the Criminal Code. Denunciation and deterrence have already been figured prominently in my analysis in determining that a 10 year global sentence is appropriate in this case. There is thus no need for an order pursuant to s. 743.6 of the Criminal Code. The guiding factors as contained within s. 743.6 order have already been dealt with through the initial sentencing analysis. As stated by Justice Wilkinson in Smith, 2008 SKCA 20 (CanLII) at para 73, 307 Sask 45: 73 Section 743.6 has, on occasion, been scorned as the indiscriminate infliction of harsh punishment, the judicial application of salt to open wounds. It can, nonetheless, serve as companion piece in the sentencing process and as counterpoint, if necessary, when societal interests outweigh those of the individual, and rehabilitation, as sentencing objective, has been given legislative back seat. Conclusion [39] For all the reasons as outlined in this decision I have concluded that as to the manslaughter conviction a sentence of 10 years in a federal institution is an appropriate sentence in the circumstances of this specific case. Credit needs to be given to Gordon for the time he has spent on remand since being arrested on February 25, 2016, to date pursuant to s. 719 of the Criminal Code. At the rate of 1.5 to 1 credit is to be given of three years, seven months. Gordon Fiddler shall therefore serve an additional six years, five months in a federal penitentiary with regard to the manslaughter conviction. [40] As to Count No. 2 on the Direct Indictment being the possession of a firearm while he was prohibited from doing so contrary to s. 117.01(1) of the Criminal Code I sentence Gordon Fiddler to a concurrent sentence of one year. [41] The Court is not prepared to make an order pursuant to s. 743.6(1) of the Criminal Code as the Court is not satisfied that it would be appropriate in Gordon Fiddler’s specific circumstances including the multiple Gladue factors to be considered and addressed in this case not only by the Court but CSC. Denunciation and deterrence have already been adequately considered by the Court and have concluded that it would not be appropriate to make such an order in this case. [42] direct the following ancillary orders: (a) Pursuant to s. 487.051 of the Criminal Code, that sample of bodily substances be taken from Gordon Fiddler that is reasonably required for the purpose of forensic DNA analysis; (b) Pursuant to s. 109 of the Criminal Code, that Gordon Fiddler be prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition and explosive substance for life; (c) Pursuant to s. 114 of the Criminal Code, that Gordon Fiddler surrender to peace officer any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition and explosive substance and any authorization, license and registration certificate for the same within 14 days of this decision; (d) Pursuant to s. 491 of the Criminal Code, the Cooey, Model 39, single-shot bolt-action rifle, bearing Serial No. CTO18886 seized in the investigation of this offence is forfeited to Her Majesty and shall be disposed of as the Attorney General directs; and (e) The victim surcharge to be imposed pursuant to s. 737 of the Criminal Code in the amount of $400.00 shall be payable forthwith and in default of payment four days to be served consecutive to the sentence imposed today. J. M.L. DOVELL

HELD: The court sentenced the accused to a global sentence of 10 years for the manslaughter conviction. A one-year concurrent sentence was imposed for the conviction of prohibited possession of a firearm. The court gave him credit at the rate of 1:1.5 for his time on remand, resulting in a net global sentence of six years, five months to be served in a federal penitentiary. The Gladue report was considered and the background of the accused was assessed as an enormous mitigating factor. The court found that this was not an appropriate case to make an order pursuant to s. 743.6 of the Code both because of the multiple Gladue factors and because it had addressed the principles of denunciation and deterrence in the global sentence.

b_2018skqb197.txt

G.M. Kraus QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2012 SKQB 99 Date: 2012 03 05 Docket: Q.B.G. No. 256 of 2011 Judicial Centre: Saskatoon IN THE MATTER OF AN APPLICATION PURSUANT TO S. 11 OF THE SASKATCHEWAN FARM SECURITY ACT BETWEEN: FARM CREDIT CANADA, and TITAN VENTURES INC., RESPONDENT Docket: Q.B.G. No. 257 of 2011 Judicial Centre: Saskatoon BETWEEN: FARM CREDIT CANADA, and STOMP PORK FARM (2008) LTD., NATIONAL BANK OF CANADA and SINNETT PORK FARM LTD., Counsel: Joel A. Hesje, Q.C., and Anita Wandzura for the applicant plaintiff Jeffrey M. Lee for the respondent defendant, National Bank of Canada FIAT KOCH J. March 5, 2012 [1] In early 2008, Stomp Pork Farm Ltd., major Saskatchewan hog producer, came under creditor protection pursuant to the Companies Creditors’ Arrangement Act, R.S.C. 1985, c. C-36. In the resulting reorganization two new corporations, Stomp Pork Farms (2008) Ltd. (Stomp (2008)) and Titan Ventures Inc. (Titan), each acquired several pig barns formerly owned by Stomp Pork Farm Ltd. at various locations in Saskatchewan. These acquisitions were financed for the respective purchasers by Farm Credit Canada (“FCC”), as primary lender, and National Bank of Canada (“National”). There may have been other sources of acquisition funding. FCC and National financing is secured by mortgages against the titles to the pig barns. Within year both corporations were in default in their loan payments and the lenders took action. FCC gave notice of its intention to realize on its security. National arranged for the appointment of receiver. [2] In 2009, to alleviate serious economic distress in the pork industry, the federal government, Department of Agriculture, introduced subsidy, the Hog Farm Transition Program (“HTP”), administered by the Canadian Pork Council, federation of provincial pork industry associations. The purpose of the program was to try to save the hog industry overall by helping producers through difficult times. The subsidies were substantial, but producers had to meet stringent conditions in order to qualify for them. Significant amongst the HTP requirements was the necessity for the producer to empty its hog barns and keep them idle for three years. In the event of the sale, lease or transfer of barns during the three-year period the acquirer or user had to assume the HTP conditions, including keeping the barns idle, failing which the subsidies would become repayable with substantial administrative fees and interest. It appears that there was no reference in the HTP conditions to mortgagees. Stomp (2008) and Titan qualified for substantial subsidies. The proceeds are all or partly in trust with National’s solicitors while the parties and their creditors sort out the distribution of them. In the meantime FCC as first mortgagee has had to cover substantial ongoing expenses to maintain and attempt to preserve the value of the vacant barns. [3] In March 2011 the court granted an order to FCC pursuant to s. 9(1)(d) of The Saskatchewan Farm Security Act, S.S. 1988-89, c. S-17.1, providing that the Act does not apply to the FCC mortgages granted by Stomp (2008) and Titan. This enabled FCC to commence foreclosure actions, which it did immediately. To comply with Rule 436(2A) National is named as party defendant in each of the foreclosure actions because National is shown on the titles as subsequent mortgagee, thus having registered interest in the mortgager’s equity of redemption. As is common in such circumstances, FCC as plaintiff in these actions did not explicitly claim relief against National. However, National filed statements of defence alleging an agreement amongst the secured creditors and the owners, including another owner, Stomp Pork (USA) Inc., whereby each of the lenders subordinates its security to the security of the other lenders and holds its interest in the mortgage security on behalf of all lenders in accordance with the terms and conditions of the agreement. National also contends in its statements of defence that FCC is in breach of its covenants to act in commercially reasonable manner in the enforcement of its mortgage security. The foreclosure actions have created the possibility that the rights of the owners to retain for the benefit of the secured creditors the HTP subsidy payments already received and their rights to continue to receive HTP payments will be in jeopardy. [4] At the risk of over-simplification believe that the statements of defence can be summarized as follows: (1) FCC by bringing its foreclosure actions is in violation of the inter-lendor agreement, in particular, its covenant to National to act in commercially reasonable manner in the enforcement of FCC’s security rights. (2) The foreclosure actions may have jeopardized or will jeopardize the owners’ ability to continue their participation in the HTP, both as to the owners’ continuing entitlement to benefits, and as to the possibility of the owners being required to repay benefits already received with interest and penalties. (3) In the alternative, because FCC is acting in contravention of representations to National that FCC would act in commercially reasonable manner in the enforcement of its security, which representations National has acted upon to its detriment, the FCC action is barred during the respective three-year periods of barn use restriction by the doctrine of equitable estoppel. (4) The present FCC claims for foreclosure should be dismissed or the court should declare that FCC is estopped from foreclosing or taking possession of secured property until the expiration of the respective three‑year HTP periods (in the case of Titan in May 2012 and in the case of Stomp (2008) in June 2013). [5] In the present motions FCC seeks orders pursuant to Rule 173(a) and (e) and the court’s inherent jurisdiction to strike the entire statements of defence on the following grounds:(a) the statements of defence filed by the defendant fail to disclose reasonable defences to the plaintiff’s foreclosure proceedings;(b) the claims asserted on statements of defence should be advanced in separate actions; and(c) the statements of defence are otherwise an abuse of the process of this Honourable Court. [6] FCC submits: (a) The statements of defence do not contain allegations which challenge the enforceability of the FCC mortgages or of the foreclosure actions. (b) National has only been added as party defendant to the foreclosure actions required by Rule 436(2A) because of National’s interest in the equity of redemption (subject to the rights of FCC), as disclosed in the Land Titles records. (c) The obvious primary purpose of the statements of defence is to delay the FCC foreclosure actions. (d) National is in effect seeking to enjoin the foreclosure actions without having to meet the more stringent requirements for injunctive relief. [7] National submits: (a) FCC has not met the threshold for Rule 173 relief which requires that the jurisdiction of the court to strike pleadings must be exercised sparingly and only in exceptional cases. (b) The authorities do not support the FCC contention that because the statements of defence do not challenge either the mortgage contract or the amounts owing on the secured indebtedness, National has not raised any reasonable defence. (c) National has raised reasonable defences including: (i) breach by FCC of collateral contracts which are clearly connected to the mortgages, together with the doctrine of equitable estoppel which precludes enforcement in circumstances such as the present; (ii) National has the right to defend the actions because of its interest in the equity of redemption. (d) The purpose of the statements of defence is to protect the interests of National pursuant to the collateral agreements; there is no basis to imply improper motives. [8] The authorities are clear that pleadings should only be struck pursuant to Rule 173 in cases where it is obvious that the claim or defence is devoid of all merit or cannot possibly succeed. Such jurisdiction should be very sparingly exercised, only in very exceptional cases, and where the court is satisfied that the claim or defence is devoid of all merit. See: Odgers’ Principles of Pleading and Practice, 20th ed.; Canada (Attorney General) v. Inuit Tapirisat, 1980 CanLII 21 (SCC), [1980] S.C.R. 735; Sagon v. Royal Bank (1992), 1992 CanLII 8287 (SK CA), 105 Sask. R. 133 (C.A.). [9] Arguably the Supreme Court of Canada has in the recent case of R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 (CanLII), [2011] S.C.R. 45, prescribed more robust approach to striking pleadings. The words “beyond doubt” from the Inuit case are no longer included in the prescribed criteria. have already commented on the Imperial Tobacco case in my decision in Battiste v. First Nations Bank, 2011 SKQB 473 (CanLII), [2011] S.J. No. 806 (QL), so it is unnecessary to repeat that discussion here. In any event, find that if the Imperial Tobacco case changes the law, the change has no impact on the present decision. [10] Although many of the Rule 173 cases involve allegations in statements of claim it is clear that the same criteria are applicable to statements of defence. See Canada Trustco Mortgage Co. v. Vaidya (1993), 1993 CanLII 6779 (SK QB), 112 Sask. R. 237 (Q.B.); Southwest Credit Union v. Prairie Meadows Farming, 2005 SKQB 405 (CanLII), 270 Sask. R. 100. [11] It is not in dispute that in an application pursuant to Rule 173(a) the court may only consider the pleadings, further particulars thereof, and any document referred to therein, but on an application pursuant to Rule 173(e) the court may assess the merits of the pleading and the motives of the party in presenting it. See Sagon v. Royal Bank, supra; Bank of Montreal v. Schmidt (1989), 1989 CanLII 4749 (SK CA), 75 Sask. R. 157 (C.A.). [12] Of particular note is the case of CIBC v. Sylvester, 2002 SKCA 52 (CanLII), 219 Sask. R. 138. In that case the court struck defence to foreclosure action because it did not challenge the alleged balance owing. The court held that an allegation of breach of fiduciary duty against the plaintiff was not properly included as defence and should only be advanced by way of counterclaim or in separate action. This follows previous decisions of the Saskatchewan Court of Appeal in the cases of Agricultural Credit Corp. v. Lozinski (1994), 1994 CanLII 4540 (SK CA), 123 Sask. R. 157 (C.A.), and Agricultural Credit Corp. v. Reid (1993), 1993 CanLII 6617 (SK CA), 113 Sask. R. 315 (C.A.). [13] The case of 663073 Alberta Ltd. v. Big Mountain Development Corp., 2010 SKQB 274 (CanLII), 357 Sask. R. 292 is of interest. In that case the plaintiff applied to strike portions of the statement of defence in foreclosure action. Specifically in issue was whether the defendant was entitled to plead equitable set-off. The court referred to Rule 104A(1)(c) relating to set-off and dismissed the application on the basis that the defendant’s cross-claim was so closely connected with the plaintiff’s demand that it would be manifestly unjust for the plaintiff to proceed without taking the defendant’s cross-claim into consideration. To like effect is the case of CIBC Mortgage Corp. v. Rowatt (2002), 2002 CanLII 45110 (ON CA), 220 D.L.R. (4th) 139 (Ont. C.A.). [14] Also relevant is the case of Marciano v. Landa, 2005 SKQB 58 (CanLII), B.L.R. (4th) 281. Although this was case seeking relief under The Business Corporations Act, R.S.S. 1978, c. B-10, not foreclosure action, it merits consideration here because Chicoine J. of this court specifically addressed the criteria applicable to an application to strike pursuant to Rule 173(e) as distinct from Rule 173(a). Chicoine J. at para. 44 quoted from Bullen Leake Jacob’s Precedents of Pleadings, 12th ed. as follows: The term “abuse of the process of the court” is term of great significance. It connotes that the process of the court must be carried out properly, honestly and in good faith; and it means that the court will not allow its function as court of law to be misused but will in proper case, prevent its machinery from being used as means of vexation or oppression in the process of litigation. It follows that where an abuse of process has taken place, the intervention of the court by the stay or even dismissal of proceedings, “although it should not be lightly done, yet it may often be required by the very essence of justice to be done.” The term “abuse of process” is often used interchangeably with the terms “frivolous” or “vexatious” either separately or more usually in conjunction. ... In determining the reasonableness of the cause of action, Chicoine J. applied the plain and obvious test. [15] In my opinion this application turns on the interpretation of the impact of the Court of Appeal decision in the CIBC v. Sylvester case, supra. Clearly the court held in that case, and in those which preceded it, that neither plea of set-off based on breach of fiduciary duty or plea of lack of procedural fairness can be defence to foreclosure action and such pleas can only be advanced by way of set‑off or in separate action. But does this mean, as FCC contends, that defendant cannot ever challenge foreclosure action on grounds other than the validity of the security or on the balance owing on the secured debt? do not see that in rejecting the proffered defences in the Sylvester case the Court of Appeal has necessarily circumscribed the pleadable defences in the manner that FCC contends. am unable to accept the submission that these cases serve to preclude the defences advanced by National in the present cases, arising, as they do, specifically from the express provisions of an alleged inter-creditor agreement. I accept that such pleading can serve to delay, but not defeat, FCC, or prevent FCC from proceeding with its foreclosure actions. [16] The defences advanced by National are, as was the situation in the 663073 Alberta Ltd. case, supra, so closely connected with FCC’s demands that it would be manifestly unjust for FCC to proceed without taking National’s defences into consideration. CONCLUSION [17] Both applications are accordingly dismissed. Although the facts and circumstances in each case are virtually identical, the complexity of them makes it appropriate that each defendant recover separate costs on the appropriate tariff.

FIAT: The plaintiff sought orders pursuant to Rule 173(a) and (e)of the Queen's Bench Rules and the Court's inherent jurisdiction to strike the entire statements of defence as they failed to disclose reasonable defences; the claims asserted on statements of defence should be advanced in separate actions; and the statements of defence were abuse of the Court's process. HELD: The applications were dismissed with each defendant to recover separate costs on the appropriate tariff. Although the defendants' pleading may delay but not defeat or prevent the plaintiff from proceeding with its foreclosure action, the defences were so closely connected with the plaintiff's demands that it would be manifestly unjust for the plaintiff to proceed without taking the defendant's defences into consideration.

9_2012skqb99.txt

S.C.A. No. 02736 IN THE NOVA SCOTIA COURT OF APPEAL Clarke, C.J.N.S.; Matthews and Chipman, JJ.A. BETWEEN: PRENOR TRUST COMPANY OF CANADA and SEAWOOD ENTERPRISES LIMITED, JOHN C. CLAES and NORMAN BEZANSON Respondents Robert L. Barnes and J. Kevin Quigley for the Appellant J. William Jordan, Q.C. for the Respondents Appeal Heard: March 12, 1993 Judgment Delivered: March 23, 1993 THE COURT: The appeal is allowed as per reasons for judgment of Chipman, J.A.; Clarke, C.J.N.S. and Matthews, J.A., concurring. CHIPMAN, J.A.: The appellant Prenor is a mortgagee which unsuccessfully sought a deficiency judgment against the respondent, Bezanson, a guarantor of the covenants of a mortgage given by Seawood Enterprises Ltd. to Prenor. The mortgage dated December 31, 1987 was for $400,000 given on the security of property which had been appraised at $538,000. The mortgage fell into arrears and Prenor commenced foreclosure proceedings on August 2, 1990 against Seawood, the respondent and one Claes, another guarantor. The statement of claim, to which no defence was filed, specifically claimed deficiency judgment against all three defendants. On Prenor's application, an order for foreclosure and sale was granted on August 23, 1990 and the sheriff's sale took place on October 2, 1990. Prenor, the only bidder at the sale, bought in the property at $10,731.84. Prenor then embarked on an extensive effort to recover its outlay by marketing the property. It finally sold it at price of $295,000 on November 1, 1991. Civil Procedure Rule 47.10(3) dealing with foreclosure proceedings provides with respect to deficiency judgment as follows: "47.10(3) An application for deficiency judgment pursuant to sub‑paragraph (2), unless otherwise ordered by the court, shall be made within six months from the date of the Sheriff's Sale on ten days notice and any deficiency judgment allowed shall not exceed the difference between the amount realized by the plaintiff from the Sheriff's Sale and the amount owing to the plaintiff at that date determined in accordance with the provisions of the order for foreclosure and sale." On October 17, 1991 Prenor obtained an order from the prothonotary confirming the sheriffs sale and purporting to grant leave to Prenor to apply for deficiency judgment within six months from the date thereof. On March 30, 1992 Prenor issued an interlocutory notice (application inter panes) for an order pursuant to Civil Procedure Rule 47.10 for leave to enter deficiency judgment against the respondent. On May 19, 1992 an order was granted in chambers in the Supreme Court upon application of Prenor with the consent of the respondents' solicitor. It provided inter alia: "NOW UPON IT APPEARING that it is appropriate to extend the time in which the Plaintiff may make an application for an order for deficiency judgment against the Defendants; NOW UPON MOTION: IT IS HEREBY ORDERED that the Plaintiff is granted an extension of time for the hearing of an application for an Order for deficiency judgment to hearing on the 27th day of May, A.D. 1992 at 11:00 o'clock in the forenoon until the conclusion of such hearing, or such further time as this Honourable Court may hereafter approve; AND IT IS FURTHER ORDERED that the Defendant, Norman Bezanson, shall have leave to file Defence to such application and shall be entitled to appear at the said hearing for the purpose of opposing the application;" On May 21, 1992 the respondent filed defence, the essence of which was that Prenor neglected the property, as result of which the price obtained ($239,000) was significantly below the appraised value of $438,000 arrived at following the sheriffs sale. The defendant at no time pleaded that the application for deficiency judgment was out of time by reason of noncompliance with the Civil Procedure Rules. The matter was heard in chambers on July 6, 1992 and by oral decision rendered at the conclusion of the hearing and released in writing on August 14, 1992, the chambers judge dismissed the application. As to the issues raised in the defence, the judge said: "I find that Prenor acted with due diligence and without negligence in the exercise of its obligation to the mortgagor and the guarantors to obtain reasonable price on resale. Prenor listed the property with credible real estate agents, changed agents when their efforts were not successful, and also acted independently to market the property during the listings. It had no conflicting interest to retain the property in its possession, and the sale to the third party was at arm's length. Prenor consulted frequently with others, including its real estate agents, to determine proper listing price and there is simply no credible evidence that the resale price was not reasonable market price." However, the judge held that the application could not succeed because the order of October 17, 1991 extending the time was not one which the prothonotary had power to give. This was an irregularity, but it was not one that the court was prepared, in the circumstances, to cure. See Civil Procedure Rule 2.01 and 3.03. As to the amount of the claim, the judge said: "I advised the parties that would accept Prenor's statement of deficiency in the amount of $186,386 unless any of the amounts therein were successfully challenged by the guarantor, Mr. Bezanson. do not find that any of them have been successfully challenged." In the result, the application was dismissed with costs to the respondent. It is not disputed that the prothonotary did not have jurisdiction to grant the order of October 17, 1991 purporting to extend the time within which an application for a deficiency judgment could be made. However, I am of the view that the order made on May 19, 1992 conclusively resolved the issue of the timeliness of Prenor\'s application for a deficiency judgment. This was an order "otherwise" within the meaning of Civil Procedure Rule 41.10(3). It was consented to by the respondents' solicitor. I would allow the appeal, set aside the order of the chambers judge and give judgment to Prenor against the respondent and the other two defendants for $186,386, together with interest at 6% from August 14, 1992, costs on the chambers application of $1,500 plus disbursements and costs of this appeal of $600 plus disbursements. J.A. Concurred in: Clarke, C.J.N.S. Matthews, J.A. S.H. 73802 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: PRENOR TRUST COMPANY OF CANADA, body corporate, formerly known as Atlantic Trust Company of Canada and SEAWOOD ENTERPRISES LIMITED, body corporate, and JOHN C. CLAES and NORMAN BEZANSON Defendants HEARD: before the Honourable Mr. Justice F. B. W. Kelly, Supreme Court of Nova Scotia, Trial Division, on June 17, 1992 in Halifax, Nova Scotia. (Complicated Chambers Matter) DECISION: July 6, 1992 (Orally) WRITTEN RELEASE: August 14, 1992 COUNSEL: Roberta J. Clarke for Prenor Trust Company of Canada J. William Jordan, Q.C. for Norman Bezanson S.C.A. No. 02736 IN THE NOVA SCOTIA COURT OF APPEAL BETWEEN: PRENOR TRUST COMPANY OF CANADA and SEAWOOD ENTERPRISES LIMITED, JOHN C. CLAES and NORMAN BEZANSON REASONS FOR JUDGMENT BY: CHIPMAN, J.A.

The appellant mortgagee appealed a chambers decision denying it a deficiency judgment on the basis the application was not made within the time limit set out in the Civil Procedure Rules. The appellant had relied on a prothonotary's order extending the time to apply for a deficiency judgment, which the prothonotary did not have authority to give. Allowing the appeal, setting aside the chambers decision and giving judgment to the appellant. While the prothonotary did not have jurisdiction to extend the time for the application, an additional chambers order had resolved the timeliness issue in the appellant's favour.

a_1993canlii3190.txt

J. Bankruptcy No. 333 Estate No. 018901 J.C.R. IN THE QUEEN’S BENCH PROVINCE OF SASKATCHEWAN IN BANKRUPTCY BETWEEN: SASKATCHEWAN ECONOMIC DEVELOPMENT CORPORATION -and- JOHN JOSEPH KOLODY -and- PEAT MARWICK THORNE INC. TRUSTEE Jodi Vaughn, for Doris Kolody Fred Zinkhan, for S.E.D.C.O. FIAT MAURICE J. HERAUF, November 13, 1996 Registrar in Bankruptcy In written decision dated September 11, 1996, Madam Justice Gunn awarded costs of the application to Doris Kolody. In addition, Mrs. Kolody was awarded taxable costs of the abortive examination of July 22, 1996. Prior to the taxation proceeding, a preliminary issue was raised by counsel for S.E.D.C.O. concerning the interpretation of Rule 566 (o) of the Queen’s Bench Rules of Court. Counsel for S.E.D.C.O. argued that the costs referred to were awarded in interlocutory proceedings and should not be taxed until the final determination of the action or proceeding. In essence, he contends that the taxation is premature. The facts are clearly set out in the Judgment of Gunn, J. and need not be repeated here in detail. The proceeding at issue is bankruptcy matter. John Kolody is the bankrupt and also the husband of Doris Kolody. S.E.D.C.O. obtained an order pursuant to Section 163 of the Bankruptcy and Insolvency Act to examine Doris Kolody. The scope of the examination has been an issue and resulted in the court application referred to. The examination has not progressed beyond few preliminary questions and it is obvious that it will have to be continued. have reluctantly concluded that S.E.D.C.O.’s argument has merit. say reluctantly because the matter has been ongoing for some time and sense impatience from the court and frustration from Mrs. Kolody. conclude that the action is certainly proceeding within the scope of the rule. My only concern relates to whether Mrs. Kolody is “party” within the meaning of the rule. She is not party to the proceeding in the true sense of the word as it involves her husband and S.E.D.C.O. However, I am of the opinion that since the examination of Mrs. Kolody is not concluded, there may be further applications to the court which could affect the issue of costs as it relates to Mrs. Kolody. It’s clear from these reasons that I am prepared to have the taxation proceed as soon as the examination of Mrs. Kolody is concluded. In the interests of expediting the taxation at that time, can advise the parties that am of the opinion that Column of the tariff is the appropriate column for the costs to be taxed under. In addition, am also of the opinion that Mrs. Kolody is entitled to $50.00 per day, for three days, which represents day to travel to and from Regina, as well as the day to attend the actual examination. Registrar in Bankruptcy

The bankrupt's wife was examined by SEDCO, pursuant to s. 163 of The Bankruptcy and Insolvency Act. Following the abortive examination, she was awarded taxable costs. Prior to the taxation proceeding, SECDO raised an issue with respect to s. 566(o) of the Queen's Bench Rules, arguing that the costs referred to were awarded in interlocutory proceedings an should not be taxed until the final determination of the action. HELD: The Court held that since the examination was ongoing, there could be further applications to the Court that would affect the issue of costs. The taxation was ordered to occur after the examination was concluded.

b_1996canlii5127.txt

J. Date: 19980206 Docket: CA 133212 NOVA SCOTIA COURT OF APPEAL Chipman, Roscoe and Cromwell, JJ.A. BETWEEN: JOHN THORNTON -and-­ THE WORKERS' COMPENSATION APPEALS TRIBUNAL OF NOVA SCOTIA and THE WORKERS' COMPENSATION BOARD OF NOVA SCOTIA Respondents K.H. (Kenny) LeBlanc for the Appellant Jonathan Davies for the Tribunal and David Farrar and John R. Ratchford for the Board Appeal Heard: February 6, 1998 Judgment Delivered: February 6, 1998 THE COURT: The appeal is allowed and the matter is remitted to the Tribunal as per oral reasons for judgment of Chipman, J.A.; Roscoe and Cromwell, JJ.A., concurring. The reasons for judgment of the Court were delivered orally by: CHIPMAN, J.A.: This is an appeal for which leave has been granted from a decision of the Worker's Compensation Appeals Tribunal (the Tribunal) dated October 25, 1996. It is limited to question as to the jurisdiction of the Tribunal. The Tribunal dismissed the appellant's appeal from the decision of Hearing Officer finding that the appellant was not entitled to temporary total disability payments under the Workers' Compensation Act, S.N.S. 1994-5, c. 10 (the Act). The appellant alleged that he suffered left knee injury on July 25, 1988 while performing activities for his employer. He applied to the Worker's Compensation Board (the Board) for benefits. In various decisions, the Board refused benefits on the ground that the appellant did not suffer an injury by accident arising out of or in the course of employment. The Hearing Officer's decision dated August 23, 1995 was the final decision of the Board. This decision affirmed previous Board decisions to deny the appellant's claim that he had suffered personal injury by accident arising out of and in the course of employment, and so was not entitled to receive worker's compensation benefits under the former Act (Workers' Compensation Act, R.S.N.S.1989, c. 508 as amended). The Tribunal's decision dismissing the appellant's appeal was rendered prior to the decision of this Court in Doward v. Workers' Compensation Board (N.S.) (1997), 1997 CanLII 14985 (NS CA), 160 N.S.R. (2d) 22. The basis for dismissing the appellant's appeal was the Tribunal's conclusion that the Hearing Officer did not arrive at a decision which was patently unreasonable. The Tribunal employed the following language in expressing this conclusion: do not find it patently unreasonable that the hearing officer found that the inference the Worker was seeking was not reasonable one. The inference being sought by the worker, of course, is that his knee problem arose out of and in the course of his employment. ... find that it was not patently unreasonable for the hearing officer to conclude that the medical evidence did not support the inference that the Worker was seeking. do not have to find that would reach the same conclusion that the hearing officer reached, only that her decision was not patently unreasonable. This Court in Doward, supra, dealt with the standard of review by the Tribunal of decision of Hearing Officer at pp. 33-38, 160 N.S.R. (2d). In particular, the Court said at p. 36: There is no reason to think that the Tribunal is any less expert generally in matters relating to workers' compensation that fall within s. 243(7) than the hearing officer. The Tribunal appeared to think otherwise in the discussion at p. 16 of its decision, but when carefully examined, the only support for its position is found in cases where the hearing officer heard evidence and the Tribunal did not. The Tribunal must, in such cases, afford the usual appellate deference to trier of fact. Support for this approach can be found in the very wide scope of review of hearing officer's decision given to the Tribunal by s. 243(7)(e). This suggests that the Legislature intended the Tribunal to be able to substitute its judgment for that of the hearing officer in the instances where an appeal lies. The deference that courts owe to specialized tribunals as discussed in Pezim, supra, and Southam, supra, is not owed to the same extent by the Tribunal... And at p. 37: An appeal to the Tribunal is statutory appeal. have concluded that if case qualifies for appellate review under s. 243(7), the deference that the Tribunal must show is only with respect to the advantages the hearing officer may have in the fact finding process in any particular case. In the context of this appeal, am of the opinion that the Tribunal erred in concluding that any decision of the hearing officer on an issue under s. 243(7)(e)(ii) was subject to review only on the basis of the "patently unreasonable" standard. An appeal from the Hearing Officer to the Tribunal is a statutory appeal. It is not a judicial review. The concept of patently unreasonable decision has no place in this statutory appeal process. The Tribunal has made an error of jurisdiction as to its powers on an appeal from the hearing officer. The appeal is allowed and the matter is remitted to the Tribunal. Chipman, J.A. Concurred in: Roscoe, J.A. Cromwell, J.A. 1996 C.A. No. 133212 IN THE NOVA SCOTIA COURT OF APPEAL BETWEEN: JOHN THORNTON Workers' Compensation Claimant (Claim No. 1429835) -and- THE WORKERS' COMPENSATION APPEALS TRIBUNAL OF NOVA SCOTIA and THE WORKERS' COMPENSATION BOARD OF NOVA SCOTIA RESPONDENTS REFERENCE SHEET Workers' Compensation Appeals Tribunal Alison Hickey Appeal Commissioner Claimant John Thornton Claim Number 1429835 Date of Hearing May 29. 1996 Date of Decision October 25. 1996 Decision Number 96-069-TAD

The primary issue in this appeal was the standard of review to be applied on appeals from a Hearing Officer to the Workers' Compensation Appeals Tribunal. The appellant had his appeal denied on the grounds that the decision of the Hearing Officer was not patently unreasonable. Allowing the appeal and remitting the matter for re-hearing, that an appeal from a Hearing Officer to the Tribunal is a statutory appeal. It is not a judicial review, and the standard of review is therefore one of correctness not whether or not the Hearing Officer's decision was patently unreasonable. The deference that the Tribunal must show is only with respect to the advantages the Hearing Officer may have in the fact finding process of a particular case.

d_1998canlii4665.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 378 Date: 2007 10 23 Docket: D.I.V. 86/2006 Judicial Centre: Swift Current BETWEEN: ALICE REGINA LATURNUS and DALE ANTON LATURNUS Counsel: Karl P. Bazin, Q.C. for the petitioner Dale Anton Laturnus appearing on his own behalf JUDGMENT GEREIN J. October 23, 2007 [1] The within petition was launched almost four years ago and the usual relief was claimed, namely: divorce, joint custody, access, child support, spousal support and division of family property. The divorce was granted on July 26, 2006. The remaining matters proceeded to trial on December 5, 2006. However, by the end of that day settlement was achieved with respect to all matters but one. Judgments were entered accordingly. [2] The outstanding matter was that of child support, past and future. Agreement could not be reached and that dispute later proceeded to trial over two days. The dispute largely centered on what monies were owed from the past. Central to this was the determination of the respondent’s income. BACKGROUND FACTS [3] The parties have three children: Carley Laturnus, born July 27, 1988 (age 19), Stacey Laturnus, born December 5, 1990 (age 16) and Mandey Laturnus, born August 9, 1993 (age 14). When the parties separated in 2003 the children resided with their respective parents on alternate weeks. This came to an end on August 1, 2004, when the petitioner moved to Medicine Hat, Alberta. The three girls moved with her. In July, 2005, Stacey and Mandey returned to the respondent. In September, 2005, Stacey moved back with the petitioner, but Mandey remained with the respondent. That arrangement has continued to the present. The child, Carley, is now on her own. [4] There were interlocutory applications in the past, the most significant of which resulted in an order dated June 29, 2004. To that date the respondent had been paying $300.00 month as child support, but he made no payment for the month of June. That changed with the order which stipulated that he pay monthly child support of $500.00 for the three children, commencing July 1, 2004. The payments were based on an imputed annual income of $26,500.00. In addition, the order set out regime for the transportation of the children when the respondent exercised access. [5] As was noted earlier, the living arrangements changed permanently as of September, 2005, when Mandey took up permanent residence with the respondent. Yet there was no variation of the order dated June 29, 2004. It is fair and reasonable that an appropriate retroactive variation now be effected. DETERMINATION OF INCOME [6] The first task is to determine the income of the respondent. It presents some difficulty as he is farmer. His income tax returns for the years 2004, 2005 and 2006 have been filed, but certain adjustments must be made. [7] begin with the capital cost allowance. In each year he claimed such an expense. There is nothing wrong with that, but it does somewhat distort the picture of his income. His taxable income is reduced below his disposable income and this can have negative impact on the child support. This is rectified by moving portion of the capital cost allowance into income. [8] recognize that the purpose of the allowance is to provide money to purchase replacement equipment. However, not all of the money is needed and is not used for that purpose. It is that unused portion which should be allocated as part of the respondent’s income. In this instance, taking into account all of the circumstances including the nature of the farming operation, the type and vintage of the machinery, and the rate at which the allowance is being used up, I conclude that 40% of the allowance should be treated as income for the purpose of calculating child support. [9] Utility costs are the next subject. They are claimed by the respondent as farm expenses thereby reducing his taxable income. These are telephone and electricity costs and portion of these costs are for his personal benefit. It is the same for his fuel costs. Accordingly, the personal portion should be included as part of income. An appropriate percentage is 25%. [10] Then there are legal and accounting costs. An amount in each year should be attributed to the respondent personally, as opposed to the farm operation, and added into his income. The amount depends on how much was claimed and varies from year to year. [11] Taking into account the described adjustments, the respondent’s income for the indicated years is as follows: 2004 Taxable income 8,747.00 Capital Cost Allowance 9,560.00 Electricity 5,881.00 Legal and Accounting Fees 2005 Taxable income $10,134.00 Capital Cost Allowance 7,100.00 Electricity 5,143.00 Legal and Accounting Fees 2006 Taxable income $48,445.00 Capital Cost Allowance 5,807.20 Electricity 4,246.00 Legal and Accounting Fees [12] There remains final adjustment. Over the years the respondent has taken advantage of the optional inventory adjustment and that must be factored back into his income using the methodology set out in Tamke v. Tamke 2001 SKQB 528 (CanLII); [2001] S.J. No. 791 (Sask. Q.B.). The calculations are as follows: $26,345.00 Plus 2003 optional inventory adjustment $29,242.00 Less 2004 optional inventory adjustment $76,987.00 Total (Deficit) ($21,400.00) $28,510.00 Plus 2004 optional inventory adjustment $76,987.00 Less 2005 optional inventory adjustment Total $105,069.00 $60,361.20 Plus 2005 optional inventory adjustment 428.00 Less 2006 optional inventory adjustment $60,789.20 [13] As can be seen, the income of the respondent over the years has undergone serious fluctuation. It therefore is appropriate that his income, for calculating child support, be based on the average of his income in the years 2004 and 2005, which is $41,834.50 ($105,069.00 - $21,400.00 ÷2). [14] My explanation for choosing these two years is that am effecting retroactive adjustment. Following the separation there was an understanding that the respondent would pay $300.00 month as support for the three children. He did this except for the month of June, 2004, and that obligation of $300.00 is still outstanding. By the order of June 29, 2004, the payments were increased to $500.00 month. The payments were made until July 1, 2005, when two of the children moved in with the respondent for the summer. As of September 1, 2005, the one child, Mandey, was residing permanently with the respondent and the other two children were with the petitioner. That amounted to material change and variation should be retroactive to that date. [15] At that time the income which would have been known was that for the year 2004. However, that income was distorted by reason of the optional inventory adjustment. By joining it with the 2005 income the distortion is eliminated. Today have the benefit of hindsight and if am effecting retroactive variation, should take advantage of that hindsight. THE CHILD SUPPORT [16] Based on an annual gross income of $41,834.50, the respondent should have paid to the petitioner as support for two children the monthly sum of $564.00 commencing September 1, 2005. Those monies have not been paid. [17] The situation of the petitioner is not complicated. Over the years her income has been by way of salary from her employment. Her income has been as follows: 40,514.89 Based on her 2005 annual gross income of $34,263.00, she should have paid to the respondent as support for one child the monthly sum of $285.00 commencing September 1, 2005. Those monies have not been paid. [18] The respondent submits that there should be variation for the period of July and August, 2005, when two children were residing with him and one with the petitioner. accept this submission. The result is that the petitioner should have paid $476.00 month and the respondent $341.00. The monthly difference payable to the respondent is $135.00. For the two months he is entitled to credit of $270.00. [19] As of the end of June, 2006, there was another material change in that the child, Carley, became independent. Thus, each party had one child. As well, the respective incomes were basically comparable. Accordingly, no child support was payable as of June, 2006 and that continues to the present. ARREARS OF CHILD SUPPORT [20] The child support payable by the two parties should be offset. The result is that the respondent should have paid to the petitioner the monthly sum of $279.00 ($564.00 $285.00). This should have been paid from September 1, 2005, until June 1, 2006, both dates inclusive, which is period of 10 months. Accordingly, the amount payable by the respondent was $2,790.00. From that amount the sum of $270.00 should be deducted for July and August 2005, leaving balance of $2,520.00. [21] As it happened, the Maintenance Enforcement Office recovered these sums: Amount January 16, 2006 112.25 February 27, 2006 $2,045.13 April 24, 2006 2,182.88 That left shortfall of $337.12. To that must be added the sum of $300.00 from June, 2004, for total of $637.12 owing by the respondent for the basic child support. SECTION EXPENSES [22] In 2006 the child, Stacey, joined in school trip to Europe at cost of $3,024.00. I reject the submission that the respondent should pay one-half of that sum. This is for two reasons. First, Stacey paid $1,500.00 toward the cost of the trip. Secondly, the respondent was asked to contribute at the time, but he refused. The petitioner knew this and when she elected to pay the balance she did so unilaterally and on her own initiative. It would be inappropriate to now compel the respondent to contribute when he earlier expressed a contrary position. [23] From 2005 to 2007 the petitioner paid certain school fees in the amount of $524.00. She seeks one-half of that amount from the respondent. I reject that claim for the reason that the fees are ordinary, and not extraordinary, expenses and would be encompassed in the basic child support. The same applies to the cost of certain activities provided to the child Mandey by the respondent. [24] There were certain health costs and they were extraordinary and therefore to be shared by the parties. There are four items. The first is fees in the amount of $256.00 paid for chiropractic treatment administered to Stacey. These were paid by the petitioner. [25] Secondly, following the separation, fees of $1,500.00 were paid to Dr. Knight for orthodontal treatment administered to Stacey. The petitioner paid $800.00 and the respondent paid $700.00. He filed series of cancelled cheques showing payments, but they were irrelevant as they related to other charges. [26] The third matter is the cost of additional orthodontal services for Stacey. For this the petitioner paid $5,900.00 and there was no contribution by the respondent. [27] The fourth and last matter is medical and dental costs incurred by the respondent with respect to the child, Mandey, in the sum of $542.00. The petitioner has contributed nothing toward that amount. [28] The described costs were incurred over some three years in the past. During that time incomes varied somewhat and it could be said that the contributions would have varied somewhat. While this is so, I have concluded that it will be fair if the contributions are equal, taking into account that the incomes are presently comparable. [29] The consequent calculation is as follows: Description Amount Cost of chiropractor fees (Stacey) 256.00 Cost of orthodontist fees (Stacey) 5,900.00 Cost of medical fees (Mandey) 6,698.00 50% payable by each party LESS: Medical fees paid by respondent 2,807.00 PLUS: Adjustment on Dr. Knight account 50.00 Total payable by respondent 2,857.00 ACCESS EXPENSES [30] The order of June 29, 2004, stipulated that when access was being exercised, the parties were to meet at specified places. On five occasions the respondent failed to attend as directed with the result that the petitioner had to make the entire trip. She now wants to be compensated for lost wages and the cost of fuel. [31] There are two problems. The petitioner has claimed for full day’s wages. This ignores the fact that she would have been away from her employment for one-half the time in any event. In addition, she appears to be claiming for her gross wages. Her actual loss would be less. The second problem is similar. She seeks to recover the cost of fuel for the entire trip. Again, this ignores the fact she would have some cost in any event. As well, the receipts show payment of $37.48 for confectionary items. While find that the petitioner is entitled to be compensated, the amount is less than she claims. The amount is calculated as follows: Description Amount Wages for five trips ($50.00 5) 250.00 Cost of fuel [32] The judgment effecting the division of family property contains provision requiring payment of interest on any monies paid after the due date. In fact, the respondent was late in making the final payment and is liable for interest in the amount of $143.04. OTHER MATTERS [33] The judgment granted earlier directed that the respondent install shields on his power take-offs to better ensure the safety of the children. The petitioner takes exception to the respondent’s failure to do so. The respondent’s conduct here is clearly wrong. [34] The judgment further provides that there would be an exchange of photographs for the purpose of making copies. It is said that this has not been done. [35] Finally, the judgment gave certain directions respecting the bank accounts of the three children. It is said that this has not been done. [36] am in no position to address these concerns other than to say the judgment should be followed. If it happens otherwise, enforcement may be sought. [37] There is one further collateral matter. The respondent acknowledges that he has, from time to time, borrowed money from the bank accounts of the children. He was able to do this because he had signing authority. It may be that he had the consent of each child, but the fact remains that such conduct is wrong and should not be repeated. Within this proceeding cannot take any action. In the future it may be otherwise. [38] This is the money owing by the respondent: Description Amount Child support for June, 2004 300.00 Child support for September, 2005 to June, 2006 337.12 Extraordinary expenses $2,857.00 Travelling expenses of petitioner [39] In the result it is ordered as follows: (1) That the respondent shall pay to the petitioner the sum of $4,237.16; (2) That the said sum of $4,237.16 shall be paid by monthly payments of $350.00 commencing November 1, 2007; (3) That no child support is presently payable as incomes are comparable, but each party shall pay 50% of all extraordinary expenses; (4) That by May 30 of each year copy of the income tax return for the previous year shall be provided by each party to the other party; and (5) That the respondent shall forthwith pay to the petitioner as court costs the sum of $1,200.00. J. W.F. Gerein

The outstanding issue is child support, past and future. The dispute largely centered on what monies were owed from the past. Central to this was the determination of the respondent's income. HELD: 1) The respondent is a farmer. His income tax returns for the years 2004, 2005 and 2006 have been filed, but certain adjustments must be made. The purpose of the capital cost allowance is to provide money to purchase replacement equipment. However, not all of the money is needed and is not used for that purpose. It is that unused portion which should be allocated as part of the respondent's income. In this case, 40% of the allowance should be treated as income for the purpose of calculating child support. The personal portion of the utility costs should be included as part of his income, an appropriate percentage is 25%. An amount of the legal and accounting costs should be attributed to the respondent personally and added to his income, in 2004 $1,000 is added, in 2005 $5,000 is added and in 2006 $1,000 is added. The respondent has taken advantage of the optional inventory adjustment and that must be factored back into his income using the methodology set out in Tamke v. Tamke, 2001 SKQB 528. As the respondent's income has undergone serious fluctuation over the years, it is therefore appropriate that his income for calculating child support be based on the average of his income in the years 2004 and 2005. 2) The respondent will not have to pay half of the cost of Stacey joining a school trip to Europe. This is because Stacey paid half of the cost herself and because the respondent was asked to contribute at the time but refused. The petitioner knew the respondent had refused to contribute and, when she elected to pay the balance, she did so unilaterally. It would be inappropriate to compel the respondent to contribute now. 3) The school fees paid by the petitioner are not extraordinary and should be encompassed in the basis child support. The health costs in the form of orthodontic treatments are extraordinary and the parties shall contribute equally as their incomes are presently comparable. 3) On five occasions the respondent failed to attend at the agreed meeting spot with the result that the petitioner had to make the entire trip to deliver the children to the respondent so he could exercise access. She will be compensated for the actual lost wages and fuel costs that she incurred on the respondent's behalf, but not for costs she would have incurred in any event. 4) The respondent shall pay costs of $1,200.

2_2007skqb378.txt

J. 2002 SKQB 457 A.D. 1999 No. 518 J.C.R. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF REGINA BETWEEN: JAMES GUSTAV FYSTROM and ROSALIN GERALDINE FYSTROM RESPONDENT J.J. Vogel for the petitioner E.F.A. Merchant, Q.C. for the respondent FIAT WILKINSON J. November 18, 2002 [1] The father applies to have the mother cited for contempt for denial of access. By fiat of October 4, 2002, Matheson J. transferred custody to the father and directed the mother to “give viva voce evidence in response to the allegation of contempt”. [2] The mother had filed an affidavit in response to the father’s motion. In Comet Products U.K. Ltd. v. Hawkex Plastics Ltd., [1971] W.L.R. 361, Denning M.R. stated that respondent who chooses to give evidence voluntarily cannot, as of right, refuse to be cross-examined. Accordingly, any jurisdictional or procedural objections on the mother’s part are obviated. [3] The specific grounds relied on by the father are as follows: The Respondent, Rosalin Geraldine Fystrom deliberately denied access and intentionally refused to comply with the access provisions contained in paragraph 4(d) of the Judgment of the Honourable Mr. Justice J.R.O. Archambault granted on September 1, 2001 when she refused to turn Colton over for access on August 19, 2002 at 4:00 o’clock p.m. and August 16, 2002 at 1:00 o’clock p.m. and on August 30, 2002 at 1:00 o’clock p.m. confined my inquiry to those grounds. The father was to have access for the weekend of August 16 to August 19, for the week of August 19 to August 26, and the weekend of August 30, 2002. [4] The recurring problem is that the child fusses and does not want to go. The mother only tells him five minutes beforehand so he will not be upset. Although the mother claims she warns the child 45 minutes in advance of access visits, this was expressly contradicted by the testimony of the maternal grandmother. In July, 2002 the child was to spend 11 days with his father. The mother misrepresented the situation to the child, telling him he will not be gone long and that “Mummy would see him in couple of days”. She bribed him to go with promises of special treats. To the child, one can logically assume this reinforces the belief that: (i) visit with Dad is nasty and unpleasant experience; (ii) Mum lies to him about how long he will be gone; and (iii) if he creates enough fuss he will get reward for his behaviour. [5] On August 16, 2002 at 1:00 p.m. the father attended at the mother’s house for access. He had travelled from Regina where he resides to the mother’s house in Saskatoon. The child had only five minutes warning regarding the upcoming access. Undoubtedly he was able to recall that the last time he went, his mother lied to him about how long he would be gone. His mother and grandmother were present. The child made fuss and did not want to go. The mother took the child next door to call the police but the neighbours were not home. The tension was palpable and the maternal grandmother called 911. Harsh words were exchanged between the father and mother and the father and grandmother. The police arrived and the father spoke alone with the child who reiterated he did not want to go. No one was willing to carry the recalcitrant child to the car. The father left. [6] It is unclear what occurred leading up to the August 19 to August 26 visit, other than that the father’s lawyer wrote to the mother’s lawyer on August 19 saying access had been denied and asking the mother to transport the child to Regina so the father could have him for the remainder of the week, which he had taken off work. The mother claims she had the child ready to go but he was upset and could not be physically forced out the door. It is not established whether the father was there to pick him up or just assumed there was no point. There were discussions between the lawyers regarding further involvement by Dr. Greenough who had done custody/access assessment. The discussions went nowhere because of dispute as to whether custody should be revisited. [7] On August 30, 2002 the father attended at the mother’s home in Saskatoon for access. The father says that the mother came to the door and told him she had phoned the police. He says the police attended but he was not allowed to take the child. The mother basically confirms the same version of events, except she says the father was half-way across the street when she said the child did not want to go and she was calling the police. The mother states she tried to bribe the child to go by saying she would take him to Toys ‘R Us, but he started crying. The grandmother, on the other hand, says the child was not crying at the time, but the child fought them when they tried to put his outerwear on. The mother called the police so they could see that the child did not wish to go. [8] On the next visit, September 10, 2002, with the added impetus of an order specifically directing the Saskatoon City Police to locate the child and assist the father in exercising access, the mother carried the fussing child to the father’s car. The father’s affidavit indicates the September 13, 2002 visit was happy and uneventful. He says the child was crying when he picked him up but they were soon talking and joking around in the car. The child likewise cried when he had to leave his father’s home. [9] On the last visit before this application, the child was apparently fine but the mother says she told him it would be short visit and the child said okay, but he would miss his mother. [10] The mother acknowledges that of all these incidents the one on August 16 was the worst. She states perhaps the father has done something since to make things better. Since August 30 she has avoided going to the door when the child is exchanged. She acknowledges she has no difficulty controlling her son when faced with opposition in other areas, i.e. eating, going to the doctor or going to bed. It was admitted by the mother in an earlier assessment by Dr. Greenough that the child was somewhat spoiled and prone to temper tantrums. [11] The parents are older in comparison to most first-time parents (now 46 and 42 years of age). This is their only child. Neither parent appears to possess much practical education or experience in dealing with issues of separation anxiety, problem not uncommon with children of the age of four, or, indeed, with first-time parents. Had either taken the time to be involved in parent education sessions that are readily available, they would have received some useful information and the benefit of practical techniques to cope with the child’s anxiety (or the mother’s); the first being that children need to be prepared well in advance of visits, not five minutes beforehand. Children of this age do not switch gears easily. This can be assisted by having the child draw pictures for Dad, helping him pack his favourite articles, and giving the child easily understandable information about when he is returning (two sleeps, three sleeps, etc.). None of this occurs here. The mother acknowledges she sends nothing with the child when he goes. The child is apt to mistrust any information given to him about when he is returning, given past experience. Another practical requirement is ensuring the child understands he has his mother’s full permission to go. It is one reason both parents are often requested to share transportation of child for access when there is geographical separation. By involving the mother, it offers concrete example to the child that she supports the father’s access. No four-year-old enjoys confinement in vehicle and if the father is responsible for all of the transportation he may be perceived as the villain. Children of this age also need the reassurance of hearing the other parent’s voice during absences from them. If telephone access is not readily available because of high conflict between parents, then tape recordings can be sent back and forth this can be as simple as the absent parent reading story on tape that the child can play before bedtime. [12] In circumstances such as have arisen here, it is not necessarily the child who needs to be investigated, but the parents. These parents demonstrate little understanding of the effects of conflict on child. The child is merely reacting to the unpleasant behaviour of his two primary role models. Many problems would disappear by the simple expedient of exchanging the child in civil fashion, and by creating an atmosphere whereby the child can express his affection for both parents without fear of repercussion. In this regard the parents have been an abject failure. The mother is too absorbed with her own needs and is letting her own anxiety translate into the child’s. The father, not content with having achieved what would seem to be the ultimate objective of this sorry exercise transfer of custody in his favour is nonetheless pressing to have the mother punished further. Both parents’ motivations are gravely open to question. [13] The mother is quite good at conveying an air of puzzlement and abstract confusion as though this entire situation is beyond her comprehension and she is merely acting as any devoted mother would in the same circumstances. If that bemusement is genuine, it speaks to lack of the intent requisite to finding of contempt, but equally to serious inadequacy in the fundamentals of good parenting. [14] The law regarding contempt (particularly in relation to access orders) is not one of those grey areas. Contempt must be proved beyond a reasonable doubt. Even in contempt proceedings, the court cannot ignore the best interests of the child and neither fine nor imprisonment should be ordered unless consistent with those best interests. (See: Frame v. Smith (1987), 1987 CanLII 74 (SCC), R.F.L. (3d) 225 at 262 (S.C.C.)). finding of contempt is usually considered the ultimate sanction and thus the remedy of last resort. In this case, contempt application follows an order transferring custody to the father, (a type of order sanctioned by the Supreme Court of Canada in M.P. v. G.L.B., 1995 CanLII 53 (SCC), [1995] S.C.R. 592) but the additional sanction now sought is of dubious merit. For this mother, whose anxiety has engendered great deal of problems, the enforced separation from the child is likely the ultimate sanction that could be imposed in all of the circumstances. Unless incarcerating parent would put an end to the present conflict and give the child respite from police interventions, court applications, repeated involvement by social workers, psychologists, custody and access assessors and all of the other societal resources that are invariably consumed in these situations, there is little point to the exercise. more effective sanction has effectively been achieved by the transfer of custody. [15] I therefore dismiss the father’s application, but without prejudice to any subsequent reliance on these events in the event of a future application for contempt. [16] I exercise the discretion given to me under The Queen’s Bench Act, 1998, S.S. 1998, c. Q-1.01 and direct the parents to complete the parent education program and file a certificate of completion within sixty days. I ask counsel to explore the possibility of conducting future exchanges of the child through the supervised exchange program. [17] Costs will remain in the cause.

FIAT. The father applied to have the mother cited for contempt for denial of access. Custody was transferred to the father by fiat October 4, 2002 and the mother was directed to give viva voce evidence. HELD: The application was dismissed. Discretion was exercised under Queen's Bench Act to direct the parents to complete the parent education program and file the certificate of completion within 60 days. Counsel were to explore the possibility of conducting exchanges through the supervised exchange program. Contempt must be proven beyond a reasonable doubt. Neither fine nor imprisonment should be ordered unless consistent with the best interests of the child. A finding of contempt is usually considered the ultimate sanction and thus the remedy of last resort. Costs in the cause.

6_2002skqb457.txt

Citation: 2005 SKQB 372 IN THE MATTER OF THE UNIVERSITY OF SASKATCHEWAN ACT, 1995, S.S. 1995, c. U‑6.1 AND IN THE MATTER OF THE APPLICATION TO THE VISITOR OF THE UNIVERSITY OF SASKATCHEWAN BETWEEN: DR. CHARLES PEARLMAN, and THE COLLEGE OF MEDICINE OF THE UNIVERSITY OF SASKATCHEWAN and THE UNIVERSITY OF SASKATCHEWAN, Respondents Counsel: Brian J. Scherman, Q.C. for the applicant Catherine A. Sloan and Collin K. Hirschfeld for the respondents [1] Dr. Charles Pearlman was enrolled in the orthopedic surgery residency training program at the University of Saskatchewan (“University”) as of September 1997. He has been suspended from the program since approximately March 2000. Since then, there have been number of legal proceedings between Dr. Pearlman and the University, both internally and externally. In decision dated September 16, 2004, an appeal committee of the University recommended that Dr. Pearlman be allowed to resume his orthopedic residency training program on probationary terms. This decision has not yet been implemented. [2] At issue in this matter is a College of Medicine policy governing students who are funded by third party organizations or governments. Dr. Pearlman was such a student, and for reasons which will be outlined hereafter, his third party funding was depleted during the period of time he was suspended. The College of Medicine insists he must find a third party sponsor prior to being allowed to resume his program. [3] In letter dated May 2, 2005, Dr. Pearlman requested the Honourable Dr. Lynda Haverstock, Lieutenant Governor of Saskatchewan, to intervene in the matter between him and the University in her ex officio role as visitor of the University set out in s. of The University of Saskatchewan Act, 1995, S.S. 1995, c. U‑6.1, which states: “The Lieutenant Governor is the visitor of the university and may exercise the rights and shall perform the duties of the visitor.” Section 9(5) of The Queen’s Bench Act, 1998, S.S. 1998, c. Q‑1.01, states: “On the direction of the Lieutenant Governor in particular case, the court may exercise the jurisdiction and powers of the Lieutenant Governor as visitor.” The Honourable Dr. Lynda Haverstock has requested that a judge of the Court of Queen’s Bench perform her role as visitor in this matter. [4] hearing was held on July 21, 2005, at which the parties made submissions. There is no dispute on the facts. Both parties relied on the record developed in earlier proceedings. Background Facts [5] The College of Medicine each year offers certain number of postgraduate positions to students who are referred to as supernumerary residents. These are residents funded by third party organization or government, other than the Provincial Department of Health, which is the primary source of financing medical student training positions at the University. The College of Medicine has policies and procedures related to such supernumerary residents directed at ensuring that wealthy students simply not be permitted to “buy” their way into one of the training programs. The policy states as follows: (i) All trainees must be funded by sources approved by the Postgraduate Medical Education Committee. Funding for supernumerary positions will be acceptable from: (a) Federal and Provincial Government Agencies (b) Foreign Government Agencies (i.e. Libya, Saudi Arabia) (c) Boards of corporations, hospitals or foundations. Note: Religious and ethnic organizations will NOT be considered and funding for supernumerary positions must be received at arms’ length in relationship to the trainee. The terms and conditions of employment for residents in supernumerary positions are set out as follows: (iii) The terms and conditions of employment for residents in supernumerary positions shall be in compliance with the collective agreement between the University of Saskatchewan and the Professional Association of Internes and Residents. With respect to Article 7.1 (Scales or Remuneration), it shall be used only as guideline when the funding source is government agency who pays the trainee directly. All other externally funded trainees will be set up on the University of Saskatchewan payroll system and will be remunerated at the same level as Clinical Services Fund (Provincial Department of Health) positions. It will be observed from the foregoing that all supernumerary residents must, according to the collective agreement in place between the University and the Professional Association of Internes and Residents of Saskatchewan (“PAIRS”), be funded at the level contemplated by the University‑PAIRS collective agreement unless the funding source is government agency who pays the trainee directly. The evidence of the College of Medicine is that supernumerary trainee has never been permitted to continue training without third party funding, and resident’s training is terminated immediately if the external funding agency withdraws financial support. [6] Dr. Pearlman was supernumerary resident funded by the Crohn’s and Colitis Foundation of America. In August 1997, the foundation forwarded to the College of Medicine the sum of $250,671.46 to cover the costs of Dr. Pearlman’s four‑year orthopedic residency program. This amount covered the anticipated salary and fringe benefits that would be payable to Dr. Pearlman pursuant to the collective agreement with PAIRS, as well as tuition fees, administration fees, and insurance fees. [7] Dr. Pearlman successfully completed his initial two‑year core surgery rotation. In October 1999, he was graded as failing his July to September rotation in adult spine and joint reconstruction. On October 15, 1999, he was placed on probation for six‑month period. In late 1999, an investigation committee was convened to examine the appropriateness of the decision to place him on probation. Prior to this committee rendering decision on the matter, the training committee determined on March 3, 2000, he had not successfully completed his probationary period and dismissed him. This dismissal was grieved by PAIRS on the ground, among others, that Dr. Pearlman had been denied due process, as the investigation committee had not concluded its investigation at the time of his dismissal, and he had not been provided an opportunity to respond to his suspension. In letter dated April 19, 2000, the Associate Vice‑President (Human Resources) of the University agreed with PAIRS that Dr. Pearlman should not have been dismissed prior to an investigation into the matters that led to him being placed on probation to begin with and concluded, “Therefore am recommending to the College that Dr. Pearlman’s status be changed to suspension with pay, pending the completion of the Investigative Committee reviews.” [8] From the time Dr. Pearlman was suspended with pay, the University continued to pay him his salary as called for by the collective agreement and continued to deduct all other fees, including tuition fees, administration fees and insurance fees, with the result that by July 30, 2002, his third party funding had been depleted. The fees deducted from March 2000 through to the depletion of the fund related to these fees approximate $19,000 in tuition fees, $4,200 in administration fees and $1,500 in insurance fees. [9] From approximately April 2000 to December 2000, Dr. Pearlman and the College of Medicine engaged in discussions, and attempts were made to transfer his training program to another medical school without success. The investigation committee which had been struck to investigate Dr. Pearlman’s initial placement on probation convened on March 22, 2001. At this meeting, Dr. Pearlman’s counsel raised the issue of apprehension of bias with respect to several of the committee members. The committee adjourned to consider these representations. On August 22, 2001, the committee advised it intended to proceed with its original membership. Dr. Pearlman then sought judicial review in the Court of Queen’s Bench in which he requested that his suspension be rescinded on various grounds or, in the alternative, the removal of at least two of the members of the committee. In decision dated January 7, 2002, the Court dismissed the application to quash the suspension proceedings, but agreed that one member of the committee should be removed on the basis of apprehension of bias. Dr. Pearlman appealed the refusal to quash proceedings to the Court of Appeal who upheld the trial judge in judgment dated June 5, 2002. [10] In the month of August 2002, counsel for Dr. Pearlman began pressing for date for the investigation committee hearing. As result of scheduling problems, the committee did not meet until February 5, 2003. The hearing lasted three days. On September 16, 2003, the investigation committee prepared report and presented it to the Associate Dean of Postgraduate Medical Education for review. On January 20, 2004, the acting Assistant Dean concluded with respect to the investigation committee report: ... In light of the fact that the Investigative Committee was not unanimous, but split between the two avenues of immediate termination and probation on strict conditions, in accordance with the Regulations, will adopt the least severe recommendation. Therefore, in accordance with this finding, you should have been placed on strict probation at the end of September 1999 and, given that you were actually on probation at that time, another Investigative Committee will be struck to deal with complaints which arose against you during this probationary period. ... The Regulations prescribe that you are entitled to appeal the above finding to an Appeal Committee, and to do so, you must submit written notice of appeal to me within fifteen (15) calendar days.... [11] In February 2004, Dr. Pearlman appealed the acting Dean’s decision to the University’s appeal committee, and also brought an application in the Court of Queen’s Bench seeking to quash his probation, and prohibiting further proceedings against him on the basis of delay. On May 5, 2004, judge of the Court of Queen’s Bench dismissed the delay application but allowed Dr. Pearlman to renew the application if academic appeals were not completed by October 1, 2004. [12] The appeal committee completed its deliberations and rendered decision dated September 16, 2004. The appeal committee upheld the decision to place Dr. Pearlman on strict probation and lifted his suspension. The orthopedic residency training committee did not agree with the decision of the appeal committee and asked for review by the Vice Dean of the College of Medicine. On September 27, 2004, the Vice Dean confirmed the appeal committee’s decision. In doing so, he stated: have been asked to review the report of the Dr. Charles Pearlman, Appeal Committee (September 2004). This has been done in my role as the Vice Dean, College of Medicine. The recommendations of the Appeal Committee were discussed by the Orthopedic Resident Program Committee on September 24, 2004 and in letter dated September 24, 2004 to Dr. Sheila Rutledge Harding, Dr. Dust, Program Director, indicated that the Committee did not support the recommendations of the Appeal Committee. In addition, it was the contention of the Residency Training Committee that Dr. Pearlman had already served the probationary period and had failed that. Since the Residency Training Committee’s response did not agree with the Appeals Committee recommendation this matter has been referred to the Dean of Medicine as per the College of Medicine’s rules and regulations for appeal. As Dr. Albritton is also the Acting Department Chair for Surgery, this decision was referred to me as the Vice Dean. ... As the Vice Dean of Medicine, and on behalf of the College of Medicine, this report has been reviewed, in view of the letter received from the Residency Training Program in Orthopedic Surgery. am in agreement with the conclusions of the Appeal Committee report. Considering that the Investigative Committee Report was not received until September 16, 2003, am not in agreement with the opinion of the Orthopedic Surgery Residency Training Committee that probation had already occurred. recommend that the decision of the Appeal Committee be forwarded to Dr. Pearlman and that Dr. Pearlman be notified of his options for further appeal to the University of Saskatchewan. Mechanisms of implementation of the Appeal Committee’s recommendation would be determined by the Associate Dean, Medical Education. This would require direction from the Assistant Dean, Postgraduate Medical Education and the Chair, Department of Surgery in collaboration with the Division of Orthopedic Surgery. Finally, would recommend that this probationary period be expected to begin within one year from the receipt of this report (October 1, 2005).... [13] The Crohn’s and Colitis Foundation has advised the University that it will not fund Dr. Pearlman any further. Dr. Pearlman is not able to obtain other third party funding. Position of the Parties [14] The University takes the position that in order for Dr. Pearlman to return to the orthopedic residency program, he must acquire third party funding for the two years remaining in the program. Its submissions include the following: 1. To allow Dr. Pearlman to continue without first obtaining external funding is clear violation of the University’s funding policy regarding supernumerary residents. 2. The University would be committing violations under The Labour Standards Act, R.S.S. 1978, c. L‑1, and breaching provisions of the collective bargaining agreement between it and PAIRS if it allowed Dr. Pearlman to work without receiving salary, and furthermore, PAIRS is not in position to waive the provisions of the collective bargaining agreement because it cannot unilaterally change the terms of the agreement. 3. Immigration Canada requires the University to certify that foreign worker has employment in order that he not become burden on the Canadian social welfare system. If it does not pay Dr. Pearlman and he has no other source of funding, the University cannot so certify. 4. Dr. Pearlman should not have accepted the continuation of his salary during the period of his suspension. [15] Dr. Pearlman’s position is that allowing him to resume his training program does not threaten the University’s policy of insisting on third party funding before doctor is allowed to enroll in resident training program, and that his return will not cost the University any money. His position includes: 1. He is not self‑funding but has simply prepaid his tuition and been prepaid his salary. If there is any top up in tuition fees required to what has already been paid, he will pay these personally. 2. The supernumerary resident policy is not threatened because he was only admitted to the program after complying with it. 3. That the collective bargaining agreement required him to be paid while on suspension pending further investigative review by the College of Medicine is unique systemic factor, which is not of his making, and he should not be required to bear the consequences of it. 4. The University must respect its internal appeal procedures and find way to implement the decision of its appeal committee. [16] PAIRS was granted status to appear at the hearing and did so. PAIRS supports the position of Dr. Pearlman. In letter dated July 5, 2005, PAIRS states in part: ... [W]e have considered and fully support Dr. Pearlman’s request that we assist in his expeditious return to the program, by waiving the requirement that he be paid salary under the terms of the Collective Agreement. We would be prepared to enter into an agreement with the College of Medicine, University of Saskatchewan, that in this particular unique circumstance we will waive the requirement that he be paid salary under the terms of the collective agreement. It would be made clear that this waiver applies only to Dr. Pearlman and will in no way impact upon the University’s obligation to pay salary to all other residents under the terms of the Collective Agreement now and in the future. Jurisdiction [17] The College of Medicine raised as an issue that Dr. Pearlman had not yet exhausted his appeals within the internal laws of the University, and specifically to the Council of Student Appeals and Academic Matters, and suggested the applicant was premature in applying to the visitor with respect to this matter. Counsel for Dr. Pearlman points out that Dr. Pearlman was satisfied with the appeal committee decision and had no reason to appeal further. do not intend to comment on this jurisdictional argument in my role as visitor, as am of the opinion that such an issue is properly matter for the courts. am also of the view that if visitatorial jurisdiction is going to be challenged by party, it should be done before the visitor convenes the hearing for review of the matter on the merits. [18] The parties are largely agreed the visitor has exclusive jurisdiction to determine disputes which are governed by the internal law, policies, and procedures of the University. Neither party disagrees with the statement by the Honourable Sylvia Fedoruk in her role as visitor in an earlier decision where she succinctly summed up visitor’s jurisdiction as follows: believe that my responsibility as visitor is to interpret and apply the internal and domestic rules or laws of the university and to ascertain that these rules or laws have been properly and fairly applied. What is not agreed upon is the scope of the jurisdiction to assess if the internal laws have been “properly and fairly applied.” In particular, does it involve pro forma procedural review only, or does the jurisdiction include the right to review the discretion exercised by administration in applying the policies and procedures? [19] Dr. J.W. Bridge, in an article entitled “Keeping Peace in the Universities: The Role of the Visitor” (1970) 86 Law Q. Rev. 531, after reviewing the history of the role of visitor, concludes at page 550: It is, of course, essential that the exercise of this domestic jurisdiction should appear just and reasonable to those who are subject to it and it must also satisfy those standards which are regarded as fundamental in the administration of justice in every sphere. It is important for the safeguarding of justice and reasonableness of that jurisdiction and the maintenance of those standards that appeals machinery should be available. That machinery, it is submitted, should be provided by the visitatorial jurisdiction rather than by the courts.... [Emphasis added.] At page 551: It is not of course suggested that visitatorial jurisdiction is the cure for all the internal ills of the universities. But it is suggested that the visitor can still be accepted in his traditional role as both safeguard against the indiscriminate use of authority and as guardian of the liberal and humane values professed and practised by universities. [Emphasis added.] [20] The House of Lords, in Thomas v. University of Bradford, [1987] All E.R. 834, considered the scope of general visitor’s jurisdiction and confirmed the exclusivity of the jurisdiction. In doing so, Lord Griffiths noted at page 839: My Lords in my opinion the exclusivity of the jurisdiction of the visitor is in English law beyond doubt and established by an unbroken line of authority spanning the last three centuries.... This aspect of the jurisdiction has been examined and expounded with clarity and learning in articles by Dr Bridge ‘Keeping Peace in the Universities: The Role of Visitor’ ... and Dr Peter Smith ‘The Exclusive Jurisdiction of the University Visitor’ (1981) 97 LQR 610, ‘Visitation of the Universities: Ghost from the Past’ (1986) 136 NLJ 484, 519, 567, and with their assistance, for which am indebted, select judicial statements which have over the years reiterated the principle that the courts of law will not trespass upon matters that lie within the jurisdiction of the visitor. With respect to the scope of the jurisdiction, Lord Griffiths noted at page 846: .. This will include not only the interpretation and enforcement of the laws themselves but those internal powers and discretions that derive from the internal laws such as the discretion necessarily bestowed on those in authority in the exercise of their disciplinary functions over members of the foundation.... [Emphasis added.] From the foregoing quotations of Lord Griffiths, it will be observed that he implicitly endorsed Dr. Bridge’s observation that the exercise of domestic jurisdiction should appear just and reasonable to those who are subject to it, and explicitly stated that visitatorial jurisdiction included the right to review the exercise of “those internal powers and discretions that derive from the internal laws.” [21] number of cases have discussed the scope of visitatorial jurisdiction in the context of whether it is supervisory one only, is an appellate one, or is sui generis, meaning it does not fall neatly into other established legal categories of review jurisdiction. From the tenor of Lord Griffiths’ remarks, conclude that he was specifically endorsing the sui generis nature of visitatorial jurisdiction. Lord Griffiths confirmed that visitatorial jurisdiction includes the right to determine if the internal laws of the university were fairly administered. Jurisdiction to determine fairness of administration goes beyond traditional legal supervisory or appellate jurisdiction. The fact that visitatorial jurisdiction is itself subject to supervisory, as opposed to appellate, review by the courts (Lord Griffiths at page 849) suggests that the jurisdiction is more original than traditional supervisory or appellate jurisdiction. [22] The House of Lords, in Thomas v. University of Bradford, supra, also concluded that inherent in the exclusive jurisdiction afforded the visitor is the right to fashion an appropriate remedy. At page 849, Lord Griffiths stated: .. can see no reason why the visitor as judge of the laws of the foundation should not have the power to right wrong done to member or office holder in the foundation by the misapplication of those laws. The visitor would be poor sort of judge if he did not possess such powers. Suppose, first, case in which on appeal the visitor concluded that there had been no ‘good cause’ for the dismissal of member of the academic staff and ordered the reinstatement of the member; cannot entertain doubt that the visitor would have power to order payment of arrears of salary between the date of dismissal and reinstatement.... In the same case, Lord Ackner stated at page 852: As regards the visitor’s jurisdiction to award ‘damages’ see no practical problem. The visitor in the course of his supervisory jurisdiction must be entitled, in order to ensure that the domestic law is properly applied, to redress any grievance that has resulted from the misapplication of that domestic law. Such redress may involve ordering the payment of arrears of salary ... or compensation.... [23] In the end result, conclude, as suggested by Dr. Bridge in his article, supra, that general visitatorial jurisdiction extends not only to judging that the university satisfy standards which are fundamental to the administration of justice in every sphere, but also to assessing the objective reasonableness of the exercise of discretion by those persons charged with administering the internal laws and policies of the university on the facts of any matter. If decision is objectively reasonable, it can be said that the test of fair administration will also be met. [24] The merit of Dr. Pearlman’s application falls to be determined on whether it is reasonable for the College of Medicine to insist on his obtaining new third party funding before he will be permitted to resume his residency program. The College considers this condition necessary to maintain the integrity of its supernumerary resident policy, and to avoid what it perceives to be potential problems with other government agencies, and potential financial implications for itself, if it should make an exception. In determining whether the College’s position is reasonable, it is necessary to consider both the context in which the question arises, and the object and purpose of the policy. (i) Context [25] The context in which the question of reasonableness arises is lengthy (now five years) internal review and appeal process set in motion when Dr. Pearlman was first placed on probation, then terminated, then suspended with pay, that ended with an appeal committee decision confirmed by the Vice Dean of the College of Medicine that he be allowed to return to the residency program on strict probationary terms. Compliance with the supernumerary resident policy was not part of the terms of the probation, and from what can be discerned from the materials, was not in the minds of anyone involved in the process over the five years. Dr. Pearlman is one of very few medical residents admitted to the College of Medicine each year to whom the policy applies. With respect to most of the residents, who are provincially funded, the appeal committee decision would already be implemented. The context thus includes considerations for the integrity of the appeal process adopted by the College of Medicine, and the rule of law which would normally mandate the College of Medicine abide by the results of its own appeal process. [26] The context also includes the fact that Dr. Pearlman did not request that he be paid during his suspension. PAIRS grieved his termination, and the College of Medicine volunteered to suspend him with pay (which turned out to be tuition fees, administration fees and insurance fees on the interpretation of the College of Medicine) to which PAIRS agreed. To the extent the College now advances the argument that Dr. Pearlman should have refused to be paid his salary during this period is somewhat anomalous, bearing in mind it was the College’s suggestion that this should occur. This position also ignores the fact that PAIRS had right to grieve on Dr. Pearlman’s behalf, and it was not time one would expect Dr. Pearlman to openly defy his union. The fact is that systemic forces were at work beyond the control of Dr. Pearlman. [27] The fact that Dr. Pearlman’s funding had been prepaid allowed for the suspension with pay which occurred. Funding on an annual basis would have obviated the problem which has arisen in this matter. It is not clear whether the funding agency had any say in the College of Medicine’s decision to suspend Dr. Pearlman with pay. [28] The College of Medicine inferentially is critical of the fact that Dr. Pearlman chose to have resort to the courts on two occasions. However, Dr. Pearlman had some success each time. In the one case, member of the investigation committee was removed. In the second case, time limit was set for conclusion of the appeal proceedings. The College of Medicine was also going through learning process in its handling of Dr. Pearlman’s case. (ii) Policy [29] The College of Medicine states the object and purpose of its supernumerary resident policy is to ensure that wealthy qualified candidates cannot buy their way into the College of Medicine and thereby displace candidates who are equally qualified. This object and purpose was met by Dr. Pearlman at the time he was accepted as resident and continued up to the time of his suspension and, but for his suspension with pay, would have funded his education through to its conclusion. As result, it is difficult to accept the College of Medicine’s concern that creating an exception in this case would somehow affect the integrity of the policy. The College of Medicine remains at liberty to apply the policy as it has in the past. If an exception is made to the policy based on the unique facts in this matter, this would not have precedential value that could affect the integrity of the policy in the future. The facts are unlikely to be repeated again in anything like the near future. am of the view the College of Medicine’s position that any exception to the policy would affect the integrity of the policy in the future does not result from an objectively reasonable analysis of the implications of such an exception. [30] The College of Medicine’s secondary concerns for not considering an exception to the policy on the facts in this matter are identified as concerns for possible breaches of provincial labour standard laws, or the PAIRS agreement, or Immigration Canada requirements. Raising these issues as an impediment to implementation of the appeal committee decision reflects an extreme level of self‑interest on the part of the College of Medicine, without any recognition for the interests of Dr. Pearlman who had no control over the College’s decision, which was agreed to by PAIRS, to suspend him with pay, or for the integrity of its own appeal processes, the result of which the rule of law would suggest should be implemented. Unfortunately, these concerns leave the appearance of being advanced as rearguard action to avoid implementation of the appeal committee decision, when one would expect the College of Medicine, as part of university that espouses liberal and humane values, would be looking for ways to implement the appeal committee decision rather than looking for reasons not to do so. The foregoing is stated because the concerns raised are extremely theoretical based on the fact solution has been offered by Dr. Pearlman and PAIRS. [31] Dr. Pearlman was paid for period in excess of two years while he performed no services whatsoever. Dr. Pearlman is prepared to sign an agreement that he has been prepaid for the services he will perform for the College of Medicine for the balance of his residency program. The Labour Standards Act, supra, does not prohibit the prepayment of wages. No evidence was offered on why such an agreement would offend the legislation. Such an agreement would not be device to circumvent labour standards legislation, but would be offered solely to provide comfort to the College of Medicine that Dr. Pearlman would not become financial burden to it. [32] With respect to the PAIRS agreement, PAIRS, as the certified bargaining agent for medical residents, has the right to waive particular provisions of the collective agreement as they apply to Dr. Pearlman in the interests of resolving grievance initiated by it pursuant to the collective agreement. PAIRS has the concurrence of Dr. Pearlman for this waiver, and it is offering the same in an attempt to arrive at solution to the unique set of facts that were generated in this matter. PAIRS, through the letter filed in these proceedings and through the representations of its counsel, is prepared to enter into an agreement waiving, with respect to Dr. Pearlman, the financial provisions of the collective agreement to which he might otherwise claim entitlement. [33] With respect to the Immigration Canada concern, normally medical residents, because they are being paid, apply for work visa as opposed to student visa. Dr. Pearlman will require visa to re‑enter Canada to continue his medical residency program. The College of Medicine’s position is that it will not confirm Dr. Pearlman has job to Immigration Canada if he should apply for work visa because it does not believe he has job if it is not paying him, and he could become burden on the social welfare system of the country. The short answer is that this concern is not the College of Medicine’s problem at all. As Dr. Pearlman’s counsel has pointed out, Dr. Pearlman will apply for form of visa, whether work visa or student visa, and explain the facts to Immigration Canada. Immigration Canada will make its normal inquiries and arrive at decision. If Immigration Canada requires proof of financial independence on the part of Dr. Pearlman prior to issuing visa, it is within its right to do so. The only obligation on the College of Medicine is to cooperate in confirming, if requested, those facts it knows to be true. [34] The fears expressed by the College of Medicine about incurring potential liability to pay Dr. Pearlman if it should allow him to resume his residency program without third party funding, which it states persist despite the foregoing the agreement offered by Dr. Pearlman and PAIRS, are not rationale fears based on any objective assessment. The fears are not based on likelihood, or even on reasonable probability, but on remote possibility. As such, they do not offer an objectively reasonable basis for insisting that Dr. Pearlman obtain third party funding as condition precedent to resuming his residency program. Conclusion [35] I find that the College of Medicine has not been objectively reasonable in the exercise of its discretion to insist that the appeal committee decision will not be implemented until such time as Dr. Pearlman obtains third party funding. It follows that I also find it did not properly or fairly apply the third party funding policy on the facts in this matter. The result is that Dr. Pearlman is entitled to relief. [36] The relief consider appropriate in order to give effect to the appeal committee decision and which takes into account the respective concerns expressed in the foregoing is as follows: 1. That the appeal committee decision be implemented by the College of Medicine if the following conditions are satisfied:(a) That Dr. Pearlman enter into a written agreement with the College of Medicine in which he agrees:(i) That the money he was paid while on suspension is prepayment for all of the services he will perform for the College of Medicine in the remainder of his residency program;(ii) That he will not claim any salary or monetary benefits available to other medical residents pursuant to the PAIRS agreement; and(iii) That he will indemnify the College of Medicine if, for any reason, it is required to make payments to him pursuant to the PAIRS agreement, or otherwise, during the remainder of his residency program. (b) That PAIRS enters into a written agreement with the College of Medicine waiving the financial terms of the PAIRS agreement with respect of Dr. Pearlman for the duration of his residency program. 2. That Dr. Pearlman will be responsible personally for paying tuition fees, administration fees, insurance fees, and any other college fees payable by other medical residents, but he will be granted a credit for those fees that were deducted by the College of Medicine during the time he was suspended with pay. This credit shall be applied to the fees before Dr. Pearlman is required to pay any additional money. 3. That in order to allow Dr. Pearlman the opportunity to apply for visa, and to otherwise prepare himself for return to the residency program, the time for his return is extended from October 15, 2005, as recommended by the Vice Dean of the College of Medicine to March 15, 2006. [37] will retain jurisdiction to address any matters that arise with respect to implementation of this award. DATED at the City of Saskatoon, in the Province of Saskatchewan, this 8th day of September, 2005. J. R.D. Laing, J.

The applicant is a doctor enrolled in the orthopaedic surgery residency training program at the University of Saskatchewan (University). He was suspended from the program since approximately March 2000. There have been a number of legal proceedings between the applicant and the University since then. An appeal committee of the University held that the applicant be allowed to resume his residency training on probationary terms. This decision has not been implemented. At issue is a College of Medicine policy governing students who are funded by third party organizations or governments. The applicant is such a student. His third party funding was depleted during the time he was suspended. The College of Medicine insists he must find a third party sponsor prior to being allowed to resume his program. The Lieutenant Governor requested that a judge of the Court of Queen's Bench perform her role as visitor in this matter. HELD: 1) The court found the College of Medicine has not been objectively reasonable in the exercise of its discretion to insist that the appeal committee decision will not be implemented until such time as the applicant obtains third party funding. The court found it did not properly or fairly apply the third party funding policy on the facts. 2) The applicant is entitled to relief. The appeal committee decision will be implemented by the College of Medicine if the following conditions are met. The applicant must enter into a written agreement with the College of Medicine whereby he agrees that the money he was paid while on suspension is prepayment for all of the services he will perform for the College of Medicine in the remainder of his residency, that he will not claim any salary or monetary benefits available to other medical residents pursuant to the PAIRS agreement, and he will indemnify the College of Medicine if it is required to make payments to him pursuant to the PAIRS agreement during the remainder of his residency program. Further, PAIRS will enter into an agreement with the College of Medicine waiving the financial terms of the PAIRS agreement with respect to the applicant for the duration of his residency. 3) The applicant will be responsible for paying tuition fees, administration fees, insurance fees and any other college fees payable by other medical residents but he will be granted a credit for the fees deducted by the College of Medicine during the time he was suspended.

7_2005skqb372.txt

J. 2003 SKQB 550 D.I.V. No. 02885 (16/2001) J.C. S.C. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SWIFT CURRENT BETWEEN: JACQUELINE DIANA VOLD and DOUGLAS ROY VOLD B. Lynn Galey for the petitioner Douglas J. Heinricks for respondent JUDGMENT McLELLAN J. December 22, 2003 [1] The respondent and the petitioner were married on June 19, 1999 and separated in January 2000. [2] The petitioner had two children from two prior relationships. Her daughter Candace is presently 16 years old and her son, Dylan, will be 10 years old in February. [3] This application only concerns her son Dylan. [4] Subsequent to the separation of the parties consent judgment was issued by the Court on June 6, 2002 which provided inter alia that the petitioner would have custody of Dylan subject to an agreement she had entered into with Dylan’s biological father Dan Culford. [5] The judgment also provided that the respondent would have reasonable access to Dylan which included every second weekend from Friday evening to Sunday evening and one week in each of July and August. The judgment stated “should Dylan ... not want to exercise access, then the Parties agree that he would not be forced to do so” and further, “[i]t is agreed that the child will refer to the Respondent as ‘Doug’ unless the child desires to do otherwise.” [6] There was also stipulation in the judgment which provided that the petitioner was to provide 90 days’ written notice to the respondent of any proposed change of residence of Dylan. [7] The petitioner and Culford have now decided that it would be in the best interests of Dylan that he be moved from Eastend, Saskatchewan to live with his father and common law wife in Edmonton, Alberta. [8] The respondent seeks an order prohibiting the petitioner from removing Dylan from the Province of Saskatchewan until she obtains a Court order allowing her to do so. [9] It is important to note that nothing in the judgment referred to above requires the petitioner to obtain such an order. It only provides that the respondent receive 90 days’ written notice. He was informed, verbally, by Culford of the proposed move in September or early October. [10] In the last year Dylan has been experiencing problems at home and at school. The petitioner took the child to Dr. Verma in Swift Current who prescribed Ritalin, suspecting Dylan suffered from Attention Deficit Hyperactivity Disorder. The Ritalin did not have the desired effect and Dylan was referred to Dr. Mathews, psychiatrist in Saskatoon who reported that Dylan may have Bipolar Mood Disorder. Different medications have been prescribed and at present, Dylan who is now under the care of Dr. Price in Eastend, is taking Zyprexa which is an anti-psychotic medication. [11] The petitioner also contacted the Mental Health Office in Swift Current in an attempt to set up some specialized counselling for Dylan. She has been advised, after numerous attempts, that there is no one in place to provide the counselling and treatment that Dylan requires. In addition, Dylan has been seen by an education psychologist in Eastend. [12] The petitioner, her present husband, Dan Culford and his common law wife have been discussing, for approximately year, how best to deal with Dylan’s needs. It was finally decided that it would be in Dylan’s best interests to reside in Edmonton with his father where help for Dylan was more easily accessible. [13] An opinion was filed from Dr. Price which stated “... it would be very advantageous for this child to be with his biological father in big centre viz Edmonton, where he would have immediate access to medical therapy; consultation with his psychiatrist and advanced modes of therapy including scholastic, which are only available in large centres.” [14] The father Dan Culford, despite living in Edmonton, has maintained relationship with Dylan. He has been in Culford’s care one to four weeks every summer, usually at Christmas and Easter, as well as various other times. [15] In custody and access report prepared by Francis Stewart on September 28, 2001, the interview with Dylan is reported as follows: see Doug enough but don’t see my real dad enough. That’s where would really like to spend more of my time, with my real dad. only get to see my dad for four or five days in row, and then have to come home again. My real dad’s name is Dan, but I’m not suppose to say that he’s my dad. Doug [doesn’t] want me to, so it’s my secret.... [16] In anticipation of Dylan moving to Edmonton, Culford and his wife will be moving, on January 1, into three bedroom house within two blocks of Overlander Elementary School in Edmonton and they have set up bedroom for Dylan. The school is equipped to provide resources for children with difficulties like Dylan’s. [17] The respondent, with the consent of the petitioner, did attend on Dr. Mathews in Saskatoon. He suggests in his affidavit that when he attended on Dr. Mathews on October 16 that Dr. Mathews was not aware of the pending move to Edmonton. find that suggestion rather difficult to accept. Attached to an affidavit is letter dated October from the petitioner to Dr. Mathews which sets out in some detail the planned move to Edmonton at the end of December. [18] In conclusion am not persuaded that an order should issue prohibiting Dylan from moving to Edmonton to live with his father. [19] An application by the petitioner will be required, to vary the access arrangements with the respondent. am advised by counsel that such an application has now been served and will be heard in January. [20] The application is therefore dismissed with costs.

The respondent seeks an order prohibiting the petitioner from removing her son from Saskatchewan until she obtains a Court order allowing her to do so. The child is the petitioner's son from a prior relationship. The petitioner plans to have the child live with his biological father in Edmonton so that he can get the specialized medical care that he requires. When the petitioner and the respondent separated, they consented to a judgment, which granted the petitioner custody of the child and gave access rights to the respondent. The consent judgment provided that the petitioner was to provide the respondent with 90 days notice of any proposed change in the child's residence. Notice of the upcoming move was provided to the respondent. HELD: The application was dismissed. The consent judgment does not require the petitioner to get an order before changing the child's residence. An application will be required by the petitioner to vary the access arrangements with the respondent.

2003skqb550.txt

1993 S.H. No. 1201‑47359 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: DELPHINA LEAR and DAVID MICHAEL LEAR DECISION HEARD: at Halifax, Nova Scotia before The Honourable Justice Gordon A. Tidman on November and 9, 1994 DECISION: December 6, 1994 COUNSEL: Delphina Lear, the Petitioner, representing herself Jeremy Gay, Counsel for the Respondent TIDMAN, J. The petitioner seeks a divorce from the respondent as well as maintenance for herself and the five‑year old daughter of the marriage. The respondent does not oppose the divorce, nor does he deny his responsibility to provide financial support for his daughter. He contests the quantum of maintenance for the child as well as the entitlement of maintenance to the wife and, if entitled, the quantum and period of time during which she is entitled to receive maintenance. The marriage has been proven, and am satisfied that the marriage relationship has irretrievably broken down and the parties have lived separate and apart for period in excess of one year. would, therefore, grant the divorce on the grounds as alleged in the Petition. CIRCUMSTANCES OF THE PARTIES The petitioner is 30 years of age, and the respondent 55 years of age. The child, Kelly, is years of age. She resides with the petitioner who has been the principal caregiver to the child since birth. At present she attends grade primary. The respondent does not seek custody of the child but asks for reasonable access upon reasonable notice. The parties met in St. John's, Newfoundland, in September, 1983. After 10‑day courtship the parties entered into common‑law relationship which continued until they married on October 28, 1989. Their daughter, Kelly, was born May 23, 1989. They separated in June, 1993. When the parties met, the respondent worked on an oil rig, as he continued to do at various locations around the world for most of the marital years. The respondent was born in England where he completed grammar school, equivalent to Canadian high school. He has worked in the oil drilling business for most of his working life in which he worked his way up to his present position of superintendent of an oil drilling rig in Nigeria for the American company Sante Fe International. His present income is $7,707.00 (Canadian) monthly or $92,500.00 annually. As apparently is usual in the offshore oil drilling business, the respondent works long hours daily for 28 straight days during which he is confined to the oil rig and then has 28 days off. Normally, the number of days off is 24 with days used as travel time from Nigeria to his present home in Halifax where the petitioner also resides. Sante Fe pays his airfare to and from Halifax. The petitioner completed grade 9. When the parties met, the petitioner was 19 and the respondent 44 years of age. The petitioner, at that time, was managing bar in St. John's, Newfoundland, and earning minimum wage plus tips. She now works for daycare centre with net take‑home pay of $801.00 monthly. She also receives child tax credit of $102.50 and GST rebate of $33.00 monthly for total income of $936.50 monthly or $11,250.00 annually. Since the separation the husband has paid maintenance to the wife starting at $1,800.00 monthly, reduced to $1,500.00 monthly and further reduced to $1,200.00 since the parties entered into Minutes of Settlement in June, 1994. By the Agreement the respondent is obliged to maintain life insurance and an education fund for Kelly while she is child of the marriage. The annual premiums for both total $156.50. The Minutes of Settlement did not settle the issue of maintenance. MATRIMONIAL ASSETS Asset division is not in issue since the parties entered into an agreement dated June 10, 1994, settling that issue. Under the terms of the agreement, each party received home and motor vehicle. Cash‑on‑hand was divided, the amount of which is not significant enough to provide support income to the parties. The husband's home is valued at $120,000.00 and carries two mortgages totalling $84,000.00. Total mortgage payments are $1,485.00 monthly and the amortization period is years. The wife's home was purchased recently for $68,000.00 and carries mortgage of $49,000.00. The monthly mortgage payments are $380.00 amortized over 25 years. The husband retains an investment savings plan with Santa Fe International worth approximately $27,000.00. The husband has no other savings, he is not Canadian resident and, according to uncontradicted evidence, is not entitled to pension benefits from any government or other agency, including Sante Fe, on retirement or for his retired years. Because of the rigorous physical demands of the respondent's job, Sante Fe's compulsory retirement age for that position is 62 years unless the company unilaterally decides to extend that time period. The husband contributes the sum of $904.00 monthly to retirement investment plan to which Sante Fe contributes an equal amount. The respondent seeks to have the Separation Agreement and Minutes of Settlement incorporated into Corollary Relief Judgment so far as the jurisdiction of the court permits, and will so order. CIRCUMSTANCES OF THE MARRIAGE AND EARLIER RELATIONSHIP OF THE PARTIES The respondent has been married several times before and has five children. He has no legal financial responsibility to any of his former wives or to the children of his earlier marriages. During the first four years of the parties' relationship, the husband worked in various places in the Middle East and Brazil. The petitioner accompanied the respondent to those countries. During that time she did not work outside the home and describes those years as the happiest of her life. In 1987 the husband terminated his employment with Sante Fe to return to Newfoundland with the petitioner. He drew out funds invested in the company's investment savings plan and used those funds for business venture in St. John's, which was unsuccessful. He returned to Sante Fe in November, 1989, after the birth of his daughter. After returning to St. John's the respondent started and, apparently, provided the funds for satellite cable television business. The wife was the sole owner of the shares of the operating company and ran the company with the respondent's assistance. The company also employed the petitioner's mother, brother and step‑father. Apparently, differences of opinion in the operation of the business between the respondent and his in‑laws contributed to the failure of that business. In 1988 the petitioner, with the respondent's encouragement, took 33‑hour word processing course at the Cabot Institute in St. John's. In 1990 she took bookkeeping and accounting correspondence course, again with the encouragement and financial support of the respondent. She successfully passed the bookkeeping portion of the course but not the accounting portion. The wife also took computer course at the Dartmouth Career College in 1991/92, again with the encouragement of the respondent, at cost of $4,500.00. In the husband's words, he was not getting any younger and wanted his wife to have useful skills to provide support for herself when he died. The husband also provided the wife with capital she used in real estate investments in the local area. The wife was also interested in acquiring career training and skills but had difficulty in learning, no doubt because of her limited formal education. The wife says she is interested in bettering herself and continues to look and prepare for other more gainful employment. The petitioner, who acted for herself during the trial, is, from my limited view of her, an innately intelligent and ambitious person. am confident that she will continue her efforts to obtain more gainful employment and will do all in her power to provide good home and healthy environment for her daughter. MAINTENANCE FOR WIFE AND DAUGHTER The following sections of the Divorce Act are applicable: 15(2) court of competent jurisdiction may, on application by either or both spouses, make an order requiring one 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 (a) the other spouse; (b) any or all children of the marriage; or (c) the other spouse and any or all children of the marriage. (4) 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. (5) In making an order under this section, the court shall take into consideration the condition, means, needs and other circumstances of each spouse and of any child of the marriage for whom support is sought, including (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. (7) An order made under this section 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 the obligation apportioned between the spouses pursuant to subsection (8); (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (d) is so far as practicable, promote the economic self‑sufficiency of each spouse within reasonable period of time. (8) An order made under this section that provides for the support of child of the marriage should (a) recognize that the spouses have joint financial obligation to maintain the child; and (b) apportion that obligation between the spouses according to their relative abilities to contribute to the performance of the obligation. The wife seeks maintenance for herself and her daughter in the amount of $1,500.00 monthly for an indefinite period. The husband submits that the wife is able to support herself and that he should be obliged to support only his daughter. He submits further that, if the court awards spousal maintenance, the combined maintenance should not exceed $1,200.00 and cease in June, 1995, and then continue only for the child at the rate of $600.00 monthly. In Moge v. Moge, 1992 CanLII 25 (SCC), [1992] S.C.R. 813 the Supreme Court discussed the manner in which courts should consider the factors set out in section 15(7) in relation to spousal support. The court stated that all four factors should be considered. Mr. Gay, on behalf of the husband, relies on section 15(7)(d) in submitting that, if maintenance is awarded to the wife, the court should promote the economic self‑sufficiency of the wife within reasonable time by ordering maintenance for limited period of time. Section 15(7)(b) directs that the court should apportion any financial consequences arising from the care of the child over and above the joint obligation of the spouses to provide financially for the child as set out in section 15(8). Mr. Gay has, for the guidance of the court, provided copies of the decisions of Kelly, J. and R. MacDonald, J. in Mosher v. Mosher (1994), 1993 CanLII 4474 (NS SC), 126 N.S.R. (2d) 367 and Rice v. Rice (1992), 113 N.S.R. (2d) 444. In Mosher the court declined to place time limit on an award of spousal maintenance and also declined to apportion between the spouse and children the total amount of maintenance awarded. In Rice the court awarded monthly maintenance to the wife to terminate in years. The circumstances set out in Rice, however, are quite different than those in the case at bar; most notably, the Rices had no children. Mr. Gay points out that when the wife met the husband she had only grade formal education and was working as bar manager at minimum wage plus tips. He submits that the marriage did not impair her career development and that, indeed, the husband encouraged her to further her education and training and provided funds with which to do so. accept that submission and also the sincerity of the husband's comment that he wished to assist his wife in becoming self‑sufficient for the time when, due to their age difference, he could no longer provide the present standard of living for her. However, based on the need of the wife and the ability to pay of the husband, the wife is entitled to maintenance. It is difficult, with any degree of accuracy, to apportion between the wife and child an amount of monetary maintenance. As the wife submits, she and her daughter are single economic unit. As well, as pointed out in both Moge and Mosher, the court should recognize the numerous financial consequences to a custodial parent not reflected in the direct cost of supporting a child. The wife states that she will attempt to improve her earning ability, and believe she will. support deadline should not be placed upon her when she has the direct responsibility of raising child and when the availability of more gainful employment within the foreseeable future is, at best, uncertain. have examined the budgets of both parties. Based on monetary maintenance of $1,200.00 paid by the husband, the husband's budget shows monthly surplus of $573.50, after providing for monthly investment savings plan payment of $904.50, and the wife's budget shows monthly deficit of $210.00. The wife seeks maintenance at the same rate she is now receiving. The wife, in arriving at the amount of her monthly deficit, did not take into consideration the amount of tax payable by her on support payments. Mr. Gay agreed to provide the court with income tax calculations, which he did, and for which thank him. On monthly basis maintenance of $1,500.00 in the hands of the wife would attract income tax of $266.00. This would leave net maintenance to the wife for her and the child in the amount of $1,234.00 monthly, roughly the amount upon which she has based her budget and which she seeks from the husband. Under all of the circumstances, I will award the wife for the support of herself and the child, Kelly, the sum of $1,500.00 monthly. Since both parties have agreed to bear their own costs, will make no award of costs. In summary, order: 1) that the parties are divorced; 2) that the Agreement and Minutes of Settlement entered into by the parties and dated June 10, 1994, be incorporated into and form part of the Divorce Judgment insofar as the jurisdiction of the court permits; 3) that the respondent pay to the petitioner the sum of $1,500.00 monthly beginning December 1, 1994, for the support and maintenance of the petitioner and child of the marriage; 4) that the petitioner have custody of the child, Kelly, with access to the respondent at the following times: (a) every Monday and Wednesday from 2:00 p.m. 5:00 p.m.; (b) from 5:00 p.m. every Saturday to 12:00 noon Sunday. The respondent shall give reasonable notice to the petitioner when he does not intend to exercise his access rights; 5) that there will be no order as to costs.

The petitioner sought a divorce and maintenance for herself and the couple's five-year old child. The wife was working and earned a modest income; the husband a substantial one. Allowing the application, that although the wife upgraded her education during the marriage with encouragement and financial support from the husband, she was entitled to maintenance for an indefinite period. The court reviewed the means and needs of the parties and awarded spousal in addition to child maintenance. The court recognized the indirect financial consequences to a custodial parent in raising children.

1994canlii4187.txt

J. Saskatchewan Court of Queen's Bench Family Law Division Judicial Centre of Regina Citation: W.B. and J.B. v. A.G. Date: 1999-08-31 Docket: 1999 F.L.D. No. 188; 1999 SKQB 39 Between: W.B. and J.B. (applicants) and A.-A.G. (respondent) Allbright, J. Counsel: S.L. Fitzsimmons, for W.B. and J.B. E.F.A. Merchant, Q.C., for A.-A.G. [1] Allbright, J.: The applicants, the paternal grandparents, seek an order granting them access to their grandson, R.D.G., born December [...], 1995, pursuant to s. 6.1(1) of the Children's Law Act, 1997, S.S. 1997, c. C-8.2. [2] A.G. is opposed to this access and suggests that any access being exercised by the applicants should be exercised during the access periods granted to their son, P.J.B. [3] have considered the oral arguments of counsel, the deposed material before me, and the authorities cited to me in this matter. [4] I am of the view that it would be in the best interests of the child, R.D.G., to have some ongoing relationship with both his maternal grandparents, and his paternal grandparents. The material satisfies me that the applicants are responsible individuals who have genuine affection and concern for the child. As their son, P.J.B., does not reside in Saskatchewan but rather in Alberta, am of the view that P.J.B. may well not be able to exercise the degree of access which he seeks or indeed has been granted by this court in fiat being released concurrently with this one [see [1999] Sask.R. Uned. 204]. This fact, in my view, warrants consideration by the court in assessing what is in the best interests of the child in terms of access to that child. [5] am not satisfied that it is appropriate to link the access of the paternal grandparents with that of the child's father. They are, in my view, separate relationships with unique characteristics to each of them. While believe that access should be granted to the grandparents, am of the view that it should be less frequent than that which would be granted to the child's father. I believe that one Saturday access period every two months would be appropriate under all of the circumstances and accordingly it is hereby ordered that W.B. and J.B. shall be granted access to their grandson, R.D.G., one Saturday every second month from 10:00 a.m. to 4:00 p.m. The respondent, A.G., shall fix each access period two months in advance. [6] There is no order as to costs. Application allowed.

HELD: The grandparents were granted access one Saturday every second month from 10:00 a.m. to 4:00 p.m. It would be in the best interests of the child to have some ongoing relationship with both his maternal and paternal grandparents. The father lived in Alberta and may not be able to exercise the degree of access he was seeking. The relationships were separate with unique characteristics.

b_1999skqb39.txt

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2007 SKCA 63 Date: 20070524 Between: Docket: 1321 Her Majesty the Queen as represented by The Attorney General of Canada and Paul Jonathon Paziuk Coram: Klebuc C.J.S., Lane Hunter JJ.A. Counsel: Wade McBride for the Appellant Richard S. Yaholnitsky for the Respondent Appeal: From: Provincial Court Heard: May 24, 2007 Disposition: Allowed in part (orally) Written Reasons: June 6, 2007 By: The Honourable Mr. Justice Lane In Concurrence: The Honourable Chief Justice Klebuc The Honourable Madam Justice Hunter Lane J.A. (orally) [1] The respondent, resident of Manitoba, was convicted of having in his possession controlled substance for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act[1] (the “Act”) and was sentenced to term of incarceration of nine months with 10 year firearms prohibition. The offence took place in Yorkton. The sentencing judge refused to order forfeiture of the truck the respondent was driving when he was arrested. [2] The respondent was nearly 22 years old at the time of the offence and had no prior record. He was found to have in his possession some 241 ecstasy pills and some marijuana. The Crown put street value on the drugs of between $2000 and $3000, with the respondent valuing the drugs at slightly under $2000. [3] The sentencing judge referred to authorities with an accused of similar age, or with drugs of similar street value. The judge was satisfied the respondent was low risk to reoffend and of no real danger to society. He found the venture to be commercial one, albeit of small-time nature. He noted the respondent was depressed and remorseful. [4] We are all of the view the sentence imposed was at the very low end of the range but, in these circumstances, find there is no basis for interfering with the sentence imposed. [5] A more significant issue is the refusal of the sentencing judge to order forfeiture of the truck used by the respondent to bring the drugs into Saskatchewan and to deliver them. [6] The truck had value of approximately $20,000. It was owned by the respondent and paid for through loan from his parents. The trial judge found that “basically all of the money” to pay for the truck came from the parents’ bank account but they had registered no lien to protect their interests. [7] The sentencing judge found the truck was not “integral to the offence.” He had this to say: don't think the onus has been met and I'm not satisfied that in this offence on the circumstances before me of some 280 pills, first-time offender with no previous criminal record, that the truck was integral in any way to this particular operation, aside from transporting him to various places across the country. It’s not that type of commercial operation, right? This isn’t, you know, the TransCanada where the truck’s full or there’s eight garbage bags full of marijuana. So think on that place the onus isn’t met for me on this particular case with these particular facts. In the event that I’m wrong in that, would grant forfeiture on the basis of the material that’s filed and want to be fair about that. The material that’s filed basically indicates the representation that was made that virtually the truck’s worth $21,000. Of it basically all of the money comes from the parents’ bank account to the kid to pay for the truck. If you had any level of sophistication, if you were commercial enterprise, what you would do is register lien to protect your interest in the truck, right? So have relief on forfeiture in the event that I’m wrong. So ultimately with respect to the issue of forfeiture, all other items think are properly forfeited, but think the truck should be released, okay?[2] [8] He went further: It’s just think in these circumstances it would be guess it would be disproportionate to the offence at the end of the day. felt by my sentence that had no choice but to do incarceration; think that was fair. But think in light of the overall sentencing here, think that justice has been done with what I’ve ordered. So wouldn’t make the order forfeiture with respect to the vehicle, all right.[3] And in further response to the Crown’s objections he stated: understand your position, right. But on the facts before me, so I’m clear, now that you’ve done that, do not find it as integral, okay, to the offence. do not find it is tied particularly to the offence, as I’ve indicated. What do find is he used it as method of transportation. But he wasn’t trafficking out of his truck. mean they were in his truck, that was an incident to. would say this for the record. With different amount and different nature, right, could find it, could come to different resolve. But in this particular case on these circumstances I’m not doing so, all right?[4] [9] refer firstly to these provisions of the Act: 2. ... “offence-related property” means, with the exception of controlled substance, any property, within or outside Canada, (a) by means of or in respect of which designated substance offence is committed, (b) that is used in any manner in connection with the commission of designated substance offence, or (c) that is intended for use for the purpose of committing designated substance offence; [Emphasis added] (1) Subject to sections 18 to 19.1, where person is convicted of designated substance offence and, on application of the Attorney General, the court is satisfied, on balance of probabilities, that any property is offence-related property and that the offence was committed in relation to that property, the court shall (b) in the case of any other offence-related property, (i) where the prosecution of the offence was commenced at the instance of the government of province and conducted by or on behalf of that government, order that the property be forfeited to Her Majesty in right of that province and disposed of by the Attorney General or Solicitor General of that province in accordance with the law, and (3) person who has been convicted of designated substance offence or the Attorney General may appeal to the court of appeal from an order or failure to make an order under subsection (1) as if the appeal were an appeal against the sentence imposed on the person in respect of the offence. [Emphasis added] [10] It is clear the truck is “offence-related property” in that it was used in connection with the commission of a designated substance offence. The sentencing judge failed to consider the definition in the Act. Upon conviction, the first step he ought to have taken was to determine whether the property was “offence-related property” within the meaning of the Act. The sentencing judge was then required, pursuant to s. 16, to order the property be forfeited because the section mandates the same, subject to sections 18 to 19.1, by the use of the words “shall...order that the property be forfeited....” [11] Before making the order of forfeiture the Court shall require, pursuant to s. 19, notice be given to any person who in the opinion of the Court has valid interest in the property. In the particular circumstances of this case, nothing turns on the failure to give notice as the parents were fully aware of the proceedings and their interests were dealt with by the sentencing judge, although he was wrong in his decision. This section allows innocent parties who have valid interest in the property to apply for an order of restoration of the property. However, the innocent party must be either the lawful owner or lawfully entitled to possession of the property which would otherwise be forfeited. The Court may order in its discretion that the property be returned to the innocent person. [12] The following sections are relevant at this stage of the analysis: (1) Before making an order under subsection 16(1) or 17(2) in relation to any property, court shall require notice in accordance with subsection (2) to be given to, and may hear, any person who, in the opinion of the court, appears to have valid interest in the property. (3) Where court is satisfied that any person, other than (a) person who was charged with designated substance offence, or (b) person who acquired title to or right of possession of the property from person referred to in paragraph (a) under circumstances that give rise to reasonable inference that the title or right was transferred for the purpose of avoiding the forfeiture of the property, is the lawful owner or is lawfully entitled to possession of any property or any part of any property that would otherwise be forfeited pursuant to an order made under subsection 16(1) or 17(2) and that the person appears innocent of any complicity in an offence referred to in paragraph (a) or of any collusion in relation to such an offence, the court may order that the property or part be returned to that person. 19.1 (1) Where all or part of offence-related property that would otherwise be forfeited under subsection 16(1) or 17(2) is dwelling-house, before making an order of forfeiture, court shall require notice in accordance with subsection (2) to be given to, and may hear, any person who resides in the dwelling-house and is member of the immediate family of the person charged with or convicted of the indictable offence under this Act in relation to which the property would be forfeited. (3) Subject to an order made under subsection 19(3), if court is satisfied that the impact of an order of forfeiture made under subsection 16(1) or 17(2) in respect of real property would be disproportionate to the nature and gravity of the offence, the circumstances surrounding the commission of the offence and the criminal record, if any, of the person charged with or convicted of the offence, as the case may be, it may decide not to order the forfeiture of the property or part of the property and may revoke any restraint order made in respect of that property or part. (4) Where all or part of the property that would otherwise be forfeited under subsection 16(1) or 17(2) is dwelling-house, when making decision under subsection (3), the court shall also consider (a) the impact of an order of forfeiture on any member of the immediate family of the person charged with or convicted of the offence, if the dwelling-house was the member’s principal residence at the time the charge was laid and continues to be the member’s principal residence; and (b) whether the member referred to in paragraph (a) appears innocent of any complicity in the offence or of any collusion in relation to the offence. [13] There is no reference to proportionality in regard to personal property and it is only in regard to forfeiture of real property that the judge can take into account the impact of an order of forfeiture and whether it is proportionate to the nature and gravity of the offence, the circumstances surrounding the commission of the offence and the criminal record of the person charged or convicted. [14] Thus, in relation to dwelling house, the Court may take into account the impact that an order of forfeiture may have on the immediate family of the person charged or convicted of the offence provided the dwelling house was member’s principal residence at the time the charge was laid and continues to be the member’s principal residence, and if the member is innocent of any complicity in the offence or of any collusion in relation to the offence (s. 19.1(4)). [15] Parliament clearly intended that the proportionality test does not apply to personal property under the provisions of the Act. In contrast, the proportionality test in the Criminal Code applies to both real and person property. Section 490.41(3) reads as follows: (3) Subject to an order made under subsection 490.4(3), if court is satisfied that the impact of an order of forfeiture made under subsection 490.1(1) or 490.2(2) would be disproportionate to the nature and gravity of the offence, the circumstances surrounding the commission of the offence and the criminal record, if any, of the person charged with or convicted of the offence, as the case may be, it may decide not to order the forfeiture of the property or part of the property and may revoke any restraint order made in respect of that property or part. [16] As stated above, the vehicle was owned by the respondent and the parents are not lawfully entitled to possession of the property. The sentencing judge had no discretion but was required to order forfeiture and erred in failing to do so. He further erred in considering proportionality as a factor to be considered when dealing with the forfeiture of personal property. [17] The Crown is therefore granted leave to appeal, the appeal against the length of sentence is dismissed and the appeal of the failure to order forfeiture of the truck is allowed. The truck is ordered forfeited. [1] R.S.C. 1996, c. 19. [2] Sentencing transcript at pp. 37-38. [4] Ibid. at pp. 39-40.

The respondent was convicted of having in his possession a controlled substance for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act (CDSA) and was sentenced to a term of incarceration of 9 months with a 10 year firearms prohibition. The issues on appeal were: 1) the length of the sentence; and 2) the refusal of the sentencing judge to order forfeiture of the truck used by the respondent to bring the drugs into Saskatchewan and to deliver them. The sentencing judge found the truck was not 'integral to the offence.' HELD: The Crown is granted leave to appeal. 1) The appeal against the length of sentence is dismissed. 2) The appeal of the failure to order forfeiture of the truck is allowed. The truck is ordered forfeited. 1) Although the sentence imposed was at the very low end of the range, in these circumstances, there is no basis for interfering with it. 2) Upon conviction, the first step the trial judge ought to have taken was to determine whether the property was 'offence-related property' within the meaning of the CDSA. It is clear the truck is 'offence-related property' in that it was used in connection with the commission of a designated substance offence. The sentencing judge failed to consider the definition in the CDSA. Section 19 of the CDSA allows innocent parties who have a valid interest in property to apply for an order of restoration. However, the innocent party must be either the lawful owner or lawfully entitled to possession of the property which would otherwise be forfeited. The Court may order in its discretion that the property be returned to the innocent person. In this case, the vehicle was owned by the respondent and the parents are not lawfully entitled to its possession. The sentencing judge had no discretion but was required to order forfeiture and erred in failing to do so. He further erred in considering proportionality as a factor to be considered when dealing with the forfeiture of personal property.

2_2007skca63.txt

J.C. Y. IN THE QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF YORKTON BETWEEN: JAMES RYAN SAVENKOFF APPLICANT (PETITIONER) and KATHRYN JOAN MACKAY RESPONDENT Patrick R. Koskie for the applicant David K. Rusnak for the respondent FIAT GUNN J. September 25, 1995 James Savenkoff (the "applicant") applies for anorder varying the support provisions of a judgment granted byLane J. of the Supreme Court of Ontario, on February 27, 1989,and seeks an order requiring a total payment of $570.75 permonth for both children. Kathryn Joan MacKay (the "respondent") opposes the application. He also seeks an order expunging any arrears. The relevant terms of the divorce judgment are as 1. THIS COURT ORDERS AND ADJUDGES that the respondent wife shall have custody of the children of the marriage, namely, Ryan Douglas Savenkoff born October 4, 1981, and Brett James Savenkoff born April 4, 1983. 3. THIS COURT ORDERS AND ADJUDGES that (a) The petitioner husband shall pay to the respondent wife for her support and for the support of the two infant children the sum of $1,200.00 per month payable to the Support and Custody Order Enforcement Office. (b) The respondent wife shall no longer be entitled to the petitioner husband's support upon the respondent wife obtaining full time employment or January 1, 1990, whichever occurs first. Upon the happening of the first of the above events, the support payable by the husband shall be exclusively for the support of the infant children. (c) Upon the wife obtaining full time employment or January 1, 1990, whichever first occurs, the parties shall confer either personally or through their solicitors or, if agreed, through mediator to reassess the quantum of support payable. The obtaining of full time employment alone shall not automatically constitute material change in circumstances that warrants reduction in support. It shall, rather, constitute an event that shall make support reviewable based on the new financial circumstances of each child and the parties. In this regard, the parties shall co-operate fully with each other and provide such financial information as is reasonably requested from either party. In the event that agreement cannot be reached within 30 days of the commencement of negotiations either party shall be entitled to apply to this Honourable Court to determine the quantum of support. Until new determination of the quantum of support is made, the quantum of support shall not change. (d) Any monies payable by the petitioner husband to the respondent wife on account of child support will be increased on the anniversary date of the order herein and every year thereafter in accordance with Section 34(6) of The Family Law 5. THIS COURT ORDERS AND ADJUDGES that the petitioner husband shall maintain all medical, dental, drug and other health benefit plans currently available through his employment with General Motors of Canada Limited or available through such other employment as he may obtain for the benefit of the children for so long as they are entitled to his support The applicant submits an agreement was reached inAugust of 1989 in accordance with paragraph 2(c) of thejudgment reducing the maintenance from $1,200 per month to$500 per month, which amount was paid from August, 1989 up toand including August, 1993. further agreement was then made increasing the monthly maintenance commencing September 1, 1993 to $554.13 and further increasing the maintenance in January, 1994 to $570.75. The applicant says in addition to the above maintenance, he provides $50 per month directly to the children as allowance, contributes approximately $1,500 per year for hockey expenses and pays annual return air fare of approximately $2,200 in order that he may exercise access to his children. The applicant became unemployed in 1993, having accepted severance package with General Motors. Due to his father's poor health he moved to the Pelly District to assist with his parents' farming operation. He is currently helping with the farm and is working part time as the rink superintendent in the Town of Pelly earning $320 per month during the winter months. The respondent denies any agreement to reduce themaintenance from the original order. However, she does suggest there were agreements to pay additional costs which have not been honoured. She says the arrears pursuant to the judgment are nowin excess of $55,636.21. The respondent submits her expenses for the children are high as result of their desire to participate in sports activities (which include travel), the need for orthodontic treatment, and her desire to enrol one of the children in private school for gifted children. I have reviewed all of the material filed and havedetermined it will not be possible to deal with this matter in asummary way. The respondent alleges the arrears are in excess of $55,636.21 on the basis of the original order. The applicant alleges there were agreements to amend the original order as contemplated by the order and that he has complied fully with the original order and with all amendments thereto. He denies there are any arrears. This cannot be resolved on the basis of theinformation before the Court. The Court must also determine whether or not there has been change in circumstances justifying variation, and the appropriate level of maintenance at this time. I direct there be a trial of the issue: 1. To determine the quantum of the arrears, if any, pursuant to the original order or pursuant to any subsequent agreements found by the Court. 2. To determine whether there has been change in circumstances justifying variation, and if so the appropriate level of maintenance at this time. The action shall be proceeded with in accordance with The Queen's Bench Rules including the right to conduct examinations for discovery if desired and participation in pre- trial conference.

FIAT The Husband alleged that a child support order, originally in the amount of $1,200.00, had been reduced by mutual agreement to $500.00 per month in 1989 when the Wife commenced employment. He applied to vary the order to correspond to the alleged agreement. The Wife denied any agreement to reduce the original order and sought judgment for arrears in the amount of $55,000.00. HELD: On a review of all material filed, the Court concluded that it was not possible to resolve the matter summarily. The Court directed a trial of the issues between the parties.

3_1995canlii6115.txt

THE COURT OF APPEAL FOR SASKATCHEWAN DENNIS STEVEN KEY and HER MAJESTY THE QUEEN CORAM: The Honourable Mr. Justice Vancise The Honourable Mr. Justice Lane The Honourable Madam Justice Jackson COUNSEL: Mr. Key in person Ms. C. Snell, Q.C. for the Crown DISPOSITION: Appeal Heard: December 10, 1996 Appeal as to conviction dismissed: December 10, 1996 (orally) Appeal as to sentence allowed: December 10, 1996 (orally) Reasons: December 17, 1996 On Appeal From: Provincial Court Appeal File: 7046 Reasons by: The Honourable Mr. Justice Lane In concurrence: The Honourable Mr. Justice Vancise The Honourable Madam Justice Jackson LANE J.A. The 21 year old appellant appeals his conviction on a charge of armed robbery pursuant to ss. 343(d) and 344 of the Criminal Code. He was sentenced to three years imprisonment and a ten year s. 100 order. The appellant who was severely intoxicated at the time, was caught by clerk stealing several submarine sandwiches from convenience store. After being pulled back into the store by the clerk an altercation occurred between the clerk and the appellant. In the course of the dispute the appellant, while on his knees, was struck several times with baseball bat and ended up on the floor. The clerk sustained no physical injuries. The appellant then tried again to leave the convenience store with some of the submarine sandwiches while holding pocket-knife. He was arrested on the premises. The Crown concedes this was “technically robbery” and was at the low end of the scale of seriousness. We are all of the view the Crown is correct in characterizing the incident as “technically a robbery”. The appeal against conviction is therefore dismissed. We also agree with the Crown the robbery was at the low end on a scale of seriousness and what originally would have been a simple shop-lifting became more serious because of the altercation between the clerk and the appellant. In these circumstances it is appropriate to allow the sentence appeal and to reduce the sentence to one year incarceration with ten year section 100 order. The conviction appeal is therefore dismissed, the sentence appeal is allowed and a sentence of one year incarceration is imposed along with a ten year section 100 order.

The 21 year old appealed his conviction of armed robbery, the sentence of three years imprisonment and a ten year s.100 order. HELD: The conviction appeal was dismissed, the sentence appeal was allowed and one year incarceration with a ten year s100 order were imposed. The Crown was correct in characterizing the incident as technically a robbery which was at the low end of the scale of seriousness. What originally would have been a shop-lifting became more serious because of the altercation between the clerk and the appellant.

9_1996canlii5086.txt

J. U.F.C. A.D. 1994 No. 812 J.C.S. IN THE COURT OF QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SASKATOON BETWEEN: SANDRA ANNE MORSKY APPLICANT (PETITIONER) -and- WAYNE ANDREW MORSKY RESPONDENT (RESPONDENT) A. Wiebe for the petitioner E.F.A. Merchant for the respondent FIAT HUNTER J. July 2, 1996 This is an application by the respondent, WayneAndrew Morsky, to disqualify and to remove the law firm ofRobertson Stromberg from acting for the petitioner, SandraAnne Morsky in this action. These are the facts. The petitioner and respondent separated on October 1, 1992. The petitioner retained Alma Wiebe of Walker Plaxton in Saskatoon to act for her in this action. On May 23, 1995, Karen Prisciak ("Prisciak") of the Robertson Stromberg firm was retained to act as co-counsel for the plaintiff. The respondent retained Jo-Ann Parker ("Parker") of the Griffin Toews Maddigan firm in Regina to act for him in this action. The respondent owns shares in Paul Morsky Ltd. and the firm of Griffin Toews Maddigan were solicitors for that company since approximately 1984 and the value of the shares in this company is key component of the matrimonial property dispute between the parties. Parker conducted examinations for discovery of the petitioner in September, 1994. Further, Parker deposes that: In my role as legal counsel for Wayne Morsky received confidential information regarding his corporate interests and negotiations on matters relating to settlement of property, maintenance, custody and access. acknowledge that my former law firm, Griffen, Toews, Maddigan, did act for Paul Morsky Ltd. was privy to confidential information about the company. The respondent terminated the services of Parker in December, 1994, and he then retained the Merchant law firm to continue to act for him in this action. In May, 1996, Parker became contract lawyer with the Robertson Stromberg law firm. By letter dated May 7, 1996 the Merchant firm wrote to Prisciak as follows: Jo-Ann Parker has recently joined your law firm. Jo-Ann Parker is Mr. Morsky's former lawyer. Your office is in very substantial conflict position. Could you please confirm that you will withdraw as Mrs. Morsky's counsel immediately. Failing this confirmation, we will be launching an immediate application to have your firm removed as Mrs. Morsky's solicitor. On May 1, 1996, during discussion between Prisciak and Parker it was confirmed by Prisciak that Parker had previously acted on behalf of the respondent in this action. On May 23, 1996, the Merchant firm wrote second time to Prisciak and stated that "We think inviting you to resign for second time is very relevant in relation to costs." Parker is located in the Regina office and Prisciak is located in the Saskatoon office of the Robertson Stromberg firm. Parker as contract lawyer will not share in the billings generated by Prisciak's work on this file and the Regina office cannot access any computer files located in the Saskatoon system unless requested by lawyer or secretary to be transmitted. Prisciak authored screening policy to insulate Parker from any discussions about this action. The memorandum is dated June 14, 1996 and addressed to "All Lawyers and staff in the Saskatoon and Regina offices of Robertson Stromberg". The text of the memorandum states: As you know, Jo-Ann Parker joined our firm in May of 1996. She was previously acting on behalf of Wayne Andrew Morsky in lawsuit involving his spouse, Sandra Anne Morsky. Karen Prisciak of the Saskatoon office was and is retained to act on behalf of Sandra Anne Morsky along with Alma Wiebe of Walker Plaxton. In accordance with the Code of Professional Conduct Chapter VA the Law Society has set up certain guidelines to be used when new lawyer to the firm has previously acted for client that is now in opposition to present client's interest. Jo-Ann Parker is in this position given that she has acted on behalf of Wayne Morsky and Karen Prisciak is now acting on behalf of Sandra Morsky. Accordingly, it is necessary for Robertson Stromberg to set up certain procedures to screen Jo-Ann Parker from any and all involvement with the Morsky lawsuit. It is essential that all lawyers and support staff with the Robertson Stromberg firm take measures to ensure that Jo-Ann Parker has no contact with the Morsky lawsuit. It is our responsibility as lawyers and support staff to ensure that Jo-Ann Parker is effectively screened from any and all matters relating to the Morsky lawsuit. In particular, all lawyers and secretaries must ensure the following: 1.They do not have any discussion regarding the current status of the Morsky lawsuit or any information relating to the representation of Wayne Morsky, the Morsky family or any Morsky corporate interests. 2.There shall not be any discussions regarding the present Morsky lawsuit or the prior representation of Wayne Morsky and the Morsky family or the Morsky corporate holdings. 3.Jo-Ann Parker shall not have access to the files relating to the Morsky lawsuit. No one shall assist Ms. Parker in any requests for information relating to the Morsky lawsuit. It is extremely important that this policy be adhered to. ANY VIOLATION OF THIS POLICY WILL RESULT IN SANCTIONS WHICH MAY INCLUDE DISMISSAL FROM ROBERTSON STROMBERG. The Supreme Court of Canada established the standard to be applied in determining whether law firm should be disqualified from continuing to act in an action by reason of conflict of interest. In Martin v. Gray, [1990] S.C.R. 1235, 1990 CanLII 32 (SCC), 77 D.L.R. (4th) 249 (S.C.C.) the court emphasized the need to ensure the public confidence in the integrity of the justice system and held that it was essential that fundamental professional standards be maintained. In particular the public perception of the appearance of justice in all legal proceedings is essential. In determining whether to remove law firm on the basis of conflict of interest, the court stated that the test to be applied is whether reasonably informed person can be satisfied that no use of confidential information would occur. In applying this test, the court must ask: (1)Did the lawyer receive confidential information attributable to the solicitor and client relationship relevant to the matter at hand? (2)Is there risk that it will be used to the prejudice of the client? With respect to the first question as to whether the lawyer received confidential information, there is presumption that such confidential information passes between lawyer and client by virtue of former solicitor and client relationship, unless the lawyer satisfies the court that no such information was imparted that could be relevant. The court noted that this would be "a difficult burden to discharge". Here, it is admitted by Parker that she did receive confidential information because she represented the respondent in this specific matrimonial action from 1992 through to December, 1994. Now Robertson Stromberg must discharge the burden of proving that no confidential information has passed. Since the decision in Martin v. Gray, the Saskatchewan Law Society amended the code of conduct to provide for rules where member transfers from one law firm to another. Chapter VA, rule (4) states: Where the transferring member actually possesses relevant information respecting the former client which is confidential and which, if disclosed to member of the new law firm, may prejudice the former client, the new law firm shall cease its representation of its client in that matter unless: (b) the new law firm establishes, in accordance with subrule (8), that: (i)it is in the interests of justice that its representation of its client in the matter continue, having regard to all relevant circumstances, including: (A)the adequacy of the measures taken under (ii), (B)the extent of prejudice to any party, (C)the good faith of the parties, (D)the availability of alternative suitable counsel, and (E)issues affecting the national or public interest, and (ii) it has taken reasonable measures to ensure that no disclosure to any member of the new law firm of the former client's confidential information will occur. The question which must be addressed is whether, inthe circumstances, the screening measures ensure that nodisclosure will occur and satisfy the evidentiary burdenimposed on the law firm. The difficulty in the instant caseis that no measures were taken prior to or at the time thatParker joined the law firm to ensure confidentiality of formerclient information. There is no doubt that Robertson Stromberg was put on notice very early in May that the respondent viewed them as being in conflict of interest position. There was discussion as early as May 1, 1996 between Prisciak and Parker but no steps were taken until the June 14, 1996 memorandum to take reasonable measures to ensure that no disclosure of information would occur. The timeperiod before taking appropriate steps or making sufficienteffort to preserve the confidentiality of the respondent'sconfidential affairs is completely inadequate in thecircumstances of this case. Accordingly, Parker and Robertson Stromberg have failed to discharge the onus and the presumption must stand. The second question, whether there is risk that the confidential information will be used to the prejudice of the client, the court in Martin v. Gray stated that once the presumption arises and is not rebutted, the lawyer's disqualification is automatic and no assurances or undertakings not to use the information will avail. As stated in Re Chua, 1995 CanLII 3082 (BC SC), [1996] W.W.R. 121 (B.C.S.C.) at 127: If the question of conflict concerns an individual lawyer who has acted in the past for former client, the answer is simple. He or she is automatically disqualified from acting and no assurances or undertakings not to use the information will avail. In Jans v. Coulter (G.H.) Co. (1992), 1992 CanLII 8216 (SK CA), 105 Sask. R. (Sask. C.A), the court confirmed that actual breach of confidentiality is not necessary. At p. 10 the court said: we do not accept counsel's contention that the Martin case requires finding that there is risk of breach of confidentiality before court will restrain law firm from acting in this type of case. Rather, each case points to some aspect of perceived prejudice to the litigants or to the process. Accordingly, Prisciak and the law firm of RobertsonStromberg are disqualified from acting for the petitioner inthis action. Further, since Alma Wiebe is co-counsel and has been involved in the file since commencement, the disadvantage that might otherwise have been experienced by the petitioner in disqualifying Prisciak should not occur. There were four other orders requested as well, namely: (1)pursuant to rule 229(1), that the petitioner appear for further examination for discovery in Saskatoon in July, 1996; (2)that the petitioner may not admit into evidence any without prejudice offers of settlement forwarded by Robertson Stromberg or any alleged without prejudice offers of settlement; (3)that this motion and all documents related to this motion be sealed; (4)for solicitor client costs payable to the (applicant) respondent. With respect to the issue of further examinations for discovery, the petitioner was examined by Parker in September, 1994. The respondent was examined for discovery November 8, 1995. The trial is set to proceed this fall. The respondent feels it is necessary to update the financial information and current values of some assets prior to trial. Because two years has elapsed, further examinations may beappropriate in the circumstances. There will be an order thatthe petitioner shall attend at a further examination at a dateand time to be arranged in consultation between counsel and on10 days' notice of the date set for the examination and thepayment of proper conduct money. If the updated information is not necessary for the trial, then the petitioner may request that the trial judge deal with the matter by way of costs at trial. This court will not make rulings with respect to thematters of evidence at trial as those matters ought to bedetermined by the trial judge. Accordingly, the applicationfor an order with respect to without prejudice offers ofsettlement and to have the motion and documents related tothis motion sealed are dismissed. Because the major portion of this motion was dedicated to the issue of the removal of Prisciak as co-counsel, the respondent, Wayne Andrew Morsky, shall have the costs of this motion which fix at $300 payable within 15 days of the date of this judgment.

FIAT. An application to disqualify and remove a solicitor and law firm from acting for the petitioner. Steps were not taken to ensure that no disclosure of information would occur for a month after the firm was put on notice. At issue was whether the screening measures taken ensured that no disclosure would occur and satisfied the evidentiary burden imposed on the law firm. HELD: The solicitor and the law firm were disqualified from acting for the petitioner in the action. Because two years had lapsed further examinations were appropriate and an order issued for the petitioner to attend a further examination. If the updated information is not necessary for trial the petitioner may request costs at that time. The application for an order with respect to without prejudice offers of settlement was dismissed as matters of evidence were to be determined by the trial judge. 1)Since the decision in Martin v. Gray the Law Society amended the code of conduct to provide for rules where a member transfers from one law firm to another. 2)The difficulty in this case was that no measures were taken prior to or at the time the solicitor joined the firm to ensure confidentiality. The time period before taking appropriate steps was completely inadequate. 3)The second question, whether there was a risk that the confidential information will be used to the prejudice of the client, Martin v. Gray stated that once the presumption arises and is not rebutted, the lawyer's disqualification is automatic and no assurances or undertakings not to use the information will avail. 4)The respondent was awarded the costs of the motion fixed at $300.

c_1996canlii6962.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2012 SKQB 338 Date: 2012 08 24 Docket: Q.B.G. No. 519 of 2009 Judicial Centre: Saskatoon BETWEEN: WAYNE CHALAZAN and BRANDON CHALAZAN, and URBAN OASIS HOMES INC., Counsel: Michael R. Scharfstein for the plaintiffs Orion Morgan for the defendant, as President of Urban Oasis Homes Inc. FIAT DOVELL J. August 24, 2012 [1] The plaintiffs commenced their statement of claim under Part 40 of The Queen’s Bench Rules of Saskatchewan on April 27, 2009. Their claim is with respect to construction residential contract of purchase and sale. The plaintiffs are claiming the return of their deposit of $25,000.00 and the costs of plans that were prepared for them at cost of $3,533.25. The defendant corporation filed statement of defence on September 17, 2009, denying the claim of the plaintiffs. [2] The parties exchanged the affidavits filed in support of their claims as well as their affidavit of documents and witnesses and the matter was set down for simplified trial to proceed on May 24, 2012. On February 9, 2012, counsel for the defendant corporation withdrew and Orion Morgan, president of the defendant corporation, asked for an adjournment of the simplified trial which was granted on May 2, 2012. [3] The trial was then scheduled to proceed on June 28, 2012. On June 21, 2012, a conference call was held with the parties at which time a request was made to myself as the trial judge, by Orion Morgan that he be allowed to represent his corporation pursuant to Rule 10(2) of The Queen’s Bench Rules. Then counsel for the plaintiffs did not object to that request and accordingly the Court ordered that Orion Morgan could represent his corporation at the upcoming simplified trial pursuant to Rule 10(2). It was at that time that Orion Morgan advised counsel for the plaintiffs and the Court that his corporation had recently been dissolved. [4] That was later confirmed when certificate of dissolution pursuant to The Business Corporations Act, R.S.S. 1978, c. B-10, effective June 20, 2012 was filed with the Court. [5] As result of the dissolution of the defendant corporation three preliminary issues must be decided by the Court before the simplified trial can proceed on September 5, 2012. Those issues include:(a) Does the Court have jurisdiction to hear this simplified trial?(b) What is the status of the dissolved corporate defendant?(c) What is the appropriate process during the simplified trial? (a) Jurisdiction of the Court [6] As agreed by both parties, this Court has jurisdiction to hear the simplified trial despite the defendant corporation being dissolved as at June 20, 2012. That is confirmed by s. 219(2)(a) of The Business Corporations Act which provides: 219(2) Notwithstanding the dissolution of corporation under this Act: (a) civil, criminal or administrative action or proceeding commenced by or against the corporation before its dissolution may be continued as if the corporation had not been dissolved. [Emphasis of the Court] [7] It is clear that this action which was commenced on April 27, 2009 against the defendant corporation may be continued as if the corporation, Urban Oasis Homes Inc., had not been dissolved. (b) Status of the dissolved defendant corporation [8] Although counsel for the plaintiffs agreed that their action should continue against the dissolved corporate defendant their counsel argued that as the defendant corporation was dissolved it ceased to exist as at June 20, 2012 and thus had no status whatsoever to actively defend this action. In support of that argument the plaintiffs relied upon several sections of The Business Corporations Act including s. 203(5). That section provides: Effect of certificate (5) The corporation ceases to exist on the date shown in the certificate of dissolution. Accordingly, the plaintiffs argued that as at June 20, 2012, Urban Oasis Homes Inc. ceased to exist and therefore was incapable of defending the claim against it. [9] Also in support of their position the plaintiffs relied upon s. 275 of The Business Corporations Act which they argued would prohibit the dissolved defendant corporation from advancing its defence in this matter. That section provides: Unregistered corporation incapable of maintaining actions 275(1) corporation that is not registered under this Act is not capable of commencing or maintaining any action or other proceeding in court in respect of contract made in whole or in part in Saskatchewan in the course of, or in connection with, its business. [10] The plaintiffs’ position was that as soon as the defendant corporation was dissolved it was not registered under the Act and the word “maintain” within s. 275 of the Act would include “defending” any action. The defendant dissolved corporation would therefore be incapable of defending this action against it. [11] As well, the plaintiffs argued that curative provisions of s. 276 of The Business Corporations Act should not be implemented by the Court as the defendant corporation in this case had taken active steps to stonewall this action by dissolving itself just week before the trial as opposed to just becoming unregistered for some innocuous reason. [12] Accordingly, the plaintiffs submitted that the simplified trial should proceed pursuant to Rule 269, the dissolved corporate defendant not being allowed to partake in the process. That would include not being allowed to either cross‑examine the plaintiffs’ witness or to present its own case. [13] The dissolved defendant corporation represented by its former president and sole director and shareholder, Orion Morgan, argued that plain reading of s. 219 of The Business Corporations Act would allow his dissolved company to defend the action initiated against it before its dissolution. [14] The crux of this issue before the Court is the proper interpretation of s. 219(2)(a) of The Business Corporations Act. [15] The Court has concluded that plain reading of s. 219 of The Business Corporations Act implies that this matter would and should proceed “as if the corporation had not been dissolved”, that is, as if the corporation was not dissolved and still existed. If this corporation still existed, it would be registered entity in Saskatchewan and it would be entitled to defend an action against it. That would result in the provisions of s. 275 not being contrary to the provisions of s. 219(2)(a) when one considers trial fairness. [16] All of the provisions of The Business Corporations Act must be considered when the Court is considering and ensuring trial fairness. [17] As an example, s. 291 confirms that liability of an unregistered corporation which would include dissolved corporation continues notwithstanding the corporation being struck. That section reads: 291 Where the name of corporation is struck off the register, the liability of the corporation and of every director or officer or shareholder of the corporation shall continue and may be enforced as if the name of the corporation had not been struck off the register. [18] If liability of the struck or dissolved corporation continues it is only fair that the struck or dissolved corporation should be allowed to defend itself in an action commenced before the dissolution of the corporation. [19] While the Court is aware that there is case law authority that has found contrary interpretation to similar provisions in other provinces, the Court is not prepared to follow those decisions but to follow other case law that supports the interpretation the Court has made in this case of s. 219 of The Business Corporations Act. [20] That case law includes ADI Ltd. v. 052987 N.B. Inc., 2000 NBCA 55 (CanLII), 232 N.B.R. (2d) 47, in which the equivalent provision in the New Brunswick legislation was found to allow dissolved corporate defendant to have standing to launch an appeal. At para. 81 the Court of Appeal held: If plaintiff is entitled to continue with an action initiated prior to dissolution of the corporate defendant, it should follow that that plaintiff is also entitled to pursue an appeal. No legal authority is needed for the proposition that right of appeal is part of civil proceeding. At the same time, reciprocity demands that dissolved corporation have the right to respond to or file an appeal. The broad language of subsection 152(2) and basic principles of fairness demand such an interpretation. If plaintiff is entitled to continue with an action initiated prior to the defendant’s dissolution, surely that defendant must be entitled to defend the action and by necessary implication to respond to or lodge an appeal. [21] Also in Malamas v. Crerar Properties Corp. (2009), 65 B.L.R. (4th) 277, [2009] O.J. No. 4726 (QL) (Ont. Sup. Ct.), Justice Matlow made the following remarks about Ontario’s equivalent provision at paras. and 9: It is also clear that section 242(1)(a) expressly authorizes the continuation of an action brought against corporation that is subsequently dissolved “as if the corporation had not been dissolved”. Having regard to the large gaps in the wording of the legislation, have come to the conclusion that this motion should be decided on an interpretation of the legislation that is based on presumption against absurdity and that should strive to interpret the legislation textually and reasonably based on presumption of knowledge and competence on the part of the Legislature. have, in this way, come to the conclusion that section 242(1)(b), which authorized the bringing of this action, should be interpreted to include an implicit recognition of the right of Crerar to defend it. It would be unthinkable that the law would recognize the right of someone to bring an action against defendant and, at the same time, deny that defendant the right to defend it. [22] An application for leave to appeal was dismissed confirming Matlow J.’s interpretation of the legislation Malamas v. Crerar Property Corp., 2010 ONSC 2883 (CanLII), 70 B.L.R. (4th) 69. [23] The Court has therefore concluded that based on the basic and fundamental principle of trial fairness not only should this trial be allowed to proceed against the dissolved defendant corporation but that the dissolved corporate defendant should be allowed to defend the action commenced before its dissolution. If the liability continues so should the right to defend the action. To decide otherwise would be absurd. (c) What is the appropriate process during the simplified trial? [24] Both the plaintiffs and the defendant have given notice that they wish to cross‑examine the deponents of affidavits filed in each other’s case. Accordingly, on September 5, 2012, the following process shall be implemented during the simplified trial:1. Orion Morgan shall be permitted to represent the defendant corporation during the simplified trial pursuant to Rule 10(2).2. Wayne Chalazan shall be produced for the purpose of cross‑ examination.3. Orion Morgan shall be produced for the purpose of cross-examination. [25] The defendant corporation has also requested that the affidavit of Marilee Fehr be considered by the Court on its behalf. Ms. Fehr’s affidavit was served upon counsel for the plaintiffs and with the Court in June 2012. Counsel for the plaintiffs has filed brief of law opposing the Court accepting that affidavit primarily on the basis that it was filed on the eve of trial. [26] Marilee Fehr was listed on the defendant’s affidavit of documents and witnesses dated August 10, 2011, as person who might reasonably be expected to have knowledge of transactions or occurrences in issue. More than two months have now gone by since the affidavit of Marilee Fehr was provided to counsel for the plaintiffs and accordingly the strength of any argument of the plaintiffs being taken by surprise with the content of any last minute affidavit has been substantially diminished. [27] For the sake of trial efficiency the Court is going to make an interim order subject to further argument by counsel for the plaintiffs on September 5, 2012, if they wish to do so, that the Court accept Ms. Fehr’s affidavit. Accordingly, she should make herself available for the purpose of cross‑examination, if the defendant corporation still wants to file her affidavit in support of its case. If not, the Court will disregard the contents of her affidavit. [28] The Part 40 simplified trial shall continue on September 5, 2012, in compliance with the provisions of Part 40 of the Rules. [29] If any further direction is required of the Court prior to the continuation of the simplified trial on September 5, 2012, arrangements are to be made with the Local Registrar. J. M.L. DOVELL

Under Part 40 of The Queen's Bench Rules (QBR), the plaintiffs commenced an action in 2009 against the defendant for the return of their deposit and the recovery of their costs for plans with respect to a residential construction contract. The defendant denied the claim and affidavits were exchanged before a simplified trial date was set for May 2012. The trial was rescheduled to June when counsel for the defence withdrew. Just before the trial, the president of the defendant corporation requested that he be allowed to represent his corporation pursuant to Rule 10(2) of the QBR and notified the Court and the plaintiffs that his corporation had just been dissolved. This development raised three issues to be decided before the simplified trial could proceed: 1) did the Court have jurisdiction to hear the simplified trial; 2) what is the status of the dissolved corporate defendant?; and 3) what is the appropriate process during the trial? HELD: Regarding the first issue, the Court held that it had jurisdiction pursuant to s. 219(2) of The Business Corporations Act. With respect to the second issue, the Court held that again, pursuant to its interpretation of s. 219 of the Act, that the trial should proceed and that the dissolved corporate defendant be allowed to defend the action on the ground that if liability continues, so should the right to defend the action. As far as the third issue was concerned, the Court held that simplified trial would proceed and that the president of the dissolved corporate defendant would be permitted to represent it. Since the parties had given notice that they wished to cross-examine the deponents of affidavits filed in each other's case, the Court ordered that the deponents be produced for the purpose of cross-examination.

7_2012skqb338.txt

C.A.C. No. 02763 NOVA SCOTIA COURT OF APPEAL Matthews, Chipman Pugsley, JJ.A. and HER MAJESTY THE QUEEN Respondent Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on July 10, 2008. Maurice Smith for the Appellant Robert E. Lutes, Q.C. for the Respondent Appeal Heard: June 3, 1993 Judgment Delivered: September 15, 1993 THE COURT: The appeal is allowed and a new trial is ordered as per reasons for judgment of Pugsley, J.A.; Matthews and Chipman, JJ.A., concurring. Publishers of this case please take note that s.38(1) of the Young Offenders Act applies and may require editing of this judgment or its heading before publication. Section 38(1) provides: "38(1) No person shall publish by any means any report (a) of an offence committed or alleged to have been committed by young person, unless an order has been made under section 16 with respect thereto, or (b) of hearing, adjudication, disposition or appeal concerning young person who committed or is alleged to have committed an offence in which the name of the young person, child or young person aggrieved by the offence or child or young person who appeared as witness in connection with the offence, or in which any information serving to identify such young per‑son or child, is disclosed." PUGSLEY, J.A: This is an appeal by the young offender who was convicted of nine charges of break and enter and one charge of assault. He submits that the Youth Court judge erred in law, in concluding that the statements taken from him by the R.C.M.P. on March 3, 1992 were voluntary statements, and erred, as well, in finding that the statements had been taken in compliance with the provisions of s. 56 of the Young Offenders Act. He does not appeal the finding of guilt on two of the convictions, but submits that the balance of the eight convictions are based solely on the impugned statements. The Youth Court judge found, and counsel agree, that if the statements are not admissible, then there is no evidence of guilt on the remaining eight charges. (1) The appellant, and his girlfriend L., were living in trailer, maintained by the appellant's sister C,, at [name of town changed]. At 12:39 hours on March 3, 1992, Constables Deveau and Coughlin of the local R.C.M.P. Detachment attended at the trailer and took the appellant into custody. The appellant was placed under arrest for break and enter on the previous evening into the office of local lawyer. The appellant was given his rights to counsel, as well as police warning. (2) The appellant was taken to the police station in [name of town changed] arriving about 12:40 hours where he remained until approximately 16:00 hours. (3) In the interview room, shortly after arrival at the station, Constable Deveau produced form, apparently devised by the R.C.M.P., to be used as guideline to explain the rights afforded to young person under s. 56 of the Act, and if applicable and the young person were so inclined, to be signed as waiver pursuant to s. 56(4). The appellant signed the form and wrote the following: "Last night was home with C. and L. and we watched few movies and went to bed about 3:00 o'clock in the morning." (4) Constable Deveau remained in the interview room with the appellant for further 15 minutes to discuss "off the record" as they had on number of occasions in the past, the appellant's involvement in recent crimes in the area. During the course of the "discussion", the appellant admitted to Constable Deveau that he was responsible for the crime for which he had just been charged, notwithstanding his written exculpatory statement given few minutes earlier. Constable Deveau testified that this admission, in the light of the "off the record" nature of the discussion, did not constitute evidence against the appellant. (5) Constable Deveau then left the interview room. He was replaced by Constable Coughlin who advised the appellant that, he was under investigation for break, enter and theft at the [name of school changed]. The appellant was not placed under arrest for this offence. Constable Coughlin produced fresh copy of the s. 56 form. The appellant signed waiver of the right to speak to counsel, and to have counsel present, during the giving of the statement, but shortly thereafter the appellant requested to speak to lawyer. He was taken to an adjoining room where he used telephone to complete the call in private. At 13:25 hours, the appellant returned to the interview room and advised Constable Coughlin that he had spoken to his lawyer, who was going to get in touch with the Crown prosecutor to inquire about having the appellant released. Prompted by an inquiry from Constable Coughlin at 14:38 hours the appellant replied that he was not going to give statement. Constable Coughlin was aware that the appellant was still waiting to hear from his lawyer. (6) Constable Coughlin was replaced by Constable MacDonald at 14:40 hours. He advised the appellant that he had evidence to indicate that the appellant was involved in break and enter at the [name of place changed] and break in at the airport in [name of town changed]. The appellant refused to give statement in connection with either matter. (7) At approximately 15:00 hours, the appellant was placed in cell. Shortly thereafter, he asked Constable Coughlin and another officer, if they would release him in consideration of disclosure by the appellant of the names of "the big hash dealers" in [name of town changed]. The police rejected the proposal. (8) At approximately 16:00 hours, the appellant was taken to the courthouse in [name of town changed] to be remanded. He was transported in police car by Constables Coughlin and Ott, but they were also accompanied by the appellant's girlfriend L. who had been arrested by the police an hour earlier. Although the appellant had been advised by Constable Coughlin that he was under investigation for the break and enter at the [name of school changed], the appellant was not charged with that offence. Upon inquiry by the appellant as to why L. was in the police car, Constable Coughlin advised that she was being charged with the break and enter at the [name of school changed]. The appellant became extremely upset upon hearing this news. (9) While waiting for the justice of the peace, in his chambers at the courthouse, the appellant testified that Constable Coughlin then said to him: "You are pretty upset. If you are willing to give statement admitting to everything, I'll think twice about entering information on L.." Constable Coughlin's recollection of this conversation is, as follows: "If you couldn't tell me otherwise, she was being charged ... if you'd given me statement like contrary to the proof that we had if (the appellant) had something to say that was contrary to our evidence, or didn't support her evidence, that she may not be charged ..." The trial judge found that "there was something conveyed to [the appellant] that would have caused him to consider whether by giving statement, he could give benefit to his girlfriend L.". (10) Constable Deveau, seeing that the appellant was upset, invited the appellant to have cigarette in the police car outside the courthouse. While sharing the front seat, the appellant stated that he was thinking of giving statement and, according to the appellant, Constable Deveau responded: “Well it would be in your best interests because if you were to open up about all of the charges, the judge probably wouldn't give you too much more time for them all than he would for three of them only ... and then you wouldn't have to worry about them coming and haunting you in the future when you get released. ... it would be best for me to open up about all of the charges and get them dealt with while was young offender instead of having to worry about them after got released because I'd more likely be an adult when was released." Constable Deveau testified that he only told the appellant that he could not give an answer to him as to what kind of sentence he would get but that it was entirely within the control of the court. The trial judge concluded: "[The appellant] was the one who brought up the possibility of giving statement, and although no doubt Constable Deveau did go on to discuss what the possible outcome might be, how court might handle it, and there is suggestion made by Constable Deveau and by Constable Coughlin that in situation where person makes confession to number of crimes at once it's quite likely that the outcome, in terms of sentence, would be less onerous than if they were dealt with one at time ... if there were no admission, if he was convicted at trial on the presentation of other evidence. There's no doubt there were such conversations; nevertheless, in my view, this was not imposed on [the appellant] in any sense ... don't find that anything that was said to him .. was blatantly untrue; in fact, think that anyone with experience in the justice system would have to acknowledge that it's been explicitly acknowledged on sentencing that the giving of confession in the dealing with charges at once, plea of guilty and so forth, are proper considerations to take into account in mitigating sentence. This was conveyed to him. don't see anything improper in that ..." (11) At 17:00 hours upon being returned to the police station, the appellant advised Constable Coughlin that he wanted to see his sister C., his girlfriend L., his former girlfriend M.G. and his friend C.H., in private so that he could discuss with them giving statement to the police concerning the break and enter at the [name of school changed]. This request was granted. After an interval, Constable Coughlin returned to the group to determine whether or not the appellant was ready to give statement and according to L., Constable Coughlin told [the appellant] that A... if he gave statement and cooperated he would recommend that he be given lighter sentence, two years instead of three. can't remember his exact words. It was something to that effect ... if you cooperate we'll recommend ... something like that ... that you'll get less of sentence you'll get two years instead of three." The recollection of the appellant's sister, C., with respect to this conversation is as follows: "'[Cnst.] Coughlin said that if [the appellant] were to cooperate with him and give the statement that it would be probably easier on him ... and asked him ... said 'well' ... he said 'Right now he's looking at three to ten years'. He said if he gives statement he'll probably only get two as long as he cooperates with us, and asked him ... said, 'Well, what's his guarantee?' He said there is no guarantee. It depends on the judge, and said 'Well why should he give you the statement if if he's got no guarantee?' And he said, 'Well, if he gives statement, I'll help him out' He said 'I'll put good word in for him.'" The trial judge then questioned the witness on this point: "Q. You said that now [the appellant's] looking at three to ten years and then there was somebody said if he gave statement he'd be looking at two years. Who was it that ...? Coughlin. Q. According to your evidence, said that? It was Constable Coughlin? Q. So if he gave statement he'd be looking at two years or something like two years .. Q. Is the way you recall it? A. If he cooperated he'd be looking at less time and he said anywhere from year to two years. He said at the most you'd get two years if you cooperate." Her brother then wrote out statement in long hand implicating himself in variety of crimes in the [name of town changed] area. C.H.'s only recollection is that Constable Coughlin's attitude was: "It would help yourself out give the statement get it over with you know be easy on yourself." The appellant was "pretty sure" that there was discussion with Constable Coughlin concerning sentence before he committed pen to paper "but can't say for sure it there was or not" Constable Coughlin denies holding out any inducement with respect to assisting the appellant to obtain lesser sentence in consideration of an inculpatory statement. M.G.., who was present throughout the entire interview which commenced at 17:11 and concluded at 19:42 hours, did not corroborate the evidence of the appellant's sister or his girlfriend. The trial judge did not deal with this conflict in his decision and made no findings of credibility with respect to this issue. (12) After completing statement in writing before Constable Coughlin wherein the appellant acknowledged his direct involvement in ten crimes in the [name of community changed], the appellant then completed second statement in front of Constable Deveau concerning the only charge on which he had been arrested (the break and enter at the lawyer's office). During the course of giving the statements to Constable Coughlin at 17:11 hours and Constable Deveau at 19:50 hours, the appellant was accompanied throughout by M.G., an adult of his choice, and for substantial period of time, his sister C.. ISSUE: While a number of issues have been raised by the appellant, the critical matter in dispute is whether or not the statements taken at 17:11 hours and 19:50 hours were voluntary statements. statement given to police officer is only admissible if it is voluntary statement. This requirement is imposed, not only by the Young Offenders Act (s. 56(2)(a)) but also by the common law. The test enunciated by Lord Sumner in Ibraham v. R. (1914), (A.C. 599) at p. 609: "It has long been established as positive rule of English criminal law that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice, or hope of advantage, exercised or held out, by person in authority." has been adopted by the Supreme Court in R. v. Rothman (1981), 1981 CanLII 23 (SCC), S.C.R. 640. At 13:15 hours the appellant consulted counsel by phone and, at the conclusion of the call, advised Constable Coughlin that he was waiting to receive additional advice from counsel. At 14:38 hours the appellant advised Constable Coughlin that he was still waiting to receive counsel's advice, and accordingly, did not wish to give statement. At 17:11 hours the appellant advised Constable Coughlin that he was prepared to give statement acknowledging his participation in various crimes recently committed in the [name of town changed] area. The appellant had not, to the knowledge of the police, spoken to counsel in the interim. What prompted the change in the appellant's position? There are, in my opinion, two matters which could have influenced his decision: 1. the inducement offered by Constable Coughlin not to charge the appellant's girlfriend, L.. 2. the alleged inducements, concerning the participation of the police, in recommending lighter sentence in the event the appellant confessed to all of the crimes in which he was involved. With respect to the first issue, the trial judge, found that something was conveyed to the appellant "that would have caused him to consider whether by giving statement he could give benefit to his girlfriend L.." Notwithstanding this finding, the trial judge did not exclude the statement because he felt the offer did not have much of an impact on the appellant's decision. The trial judge stated that the appellant "maintained his anger towards the police and felt L. would beat the charge anyway." This conclusion is supported by the appellant's failure to comment on this topic during his trial evidence. The appellant did not, at any time, suggest that Constable Coughlin's offer was the impetus to give the written statement. The matter that is most troublesome, however, is the evidence dealing with the statements allegedly made by Constable Coughlin that if the young offender were to cooperate that he (Constable Coughlin) would help him out "to secure lesser sentence." The evidence given by the appellant\'s sister on this point was raised during the course of her cross‑examination by the appellant\'s counsel, and also confirmed in her responses to questions from the Court. Evidence of a similar nature was given by the appellant\'s girlfriend L.. The trial judge, in the course of careful review of the evidence, unfortunately, did not make any findings of fact or determinations of credibility on this essential matter. If the evidence of the appellant\'s sister and girlfriend was accepted, then the inducement was clearly established, and the Crown, in my view, would have failed to prove, beyond a reasonable doubt, that the statements were voluntary. This was critical issue. It is the primary duty of trial judge to make findings of fact and determinations of credibility. (See Matthews J.A. on behalf of the Court in Foster v. R., May 1993, unreported.) An appellate court should not attempt to guess what those conclusions might be in the absence of such findings. The failure by the trial judge to make any finding with respect to this issue was, in my opinion, a palpable and overriding error. I would therefore allow the appeal and order a new trial with respect to the eight charges which were based solely on the impugned statements. Pugsley, J.A. Concurred in: Matthews, J.A. Chipman, J.A. IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION and HER MAJESTY THE QUEEN RESPONDENT NOTICE OF APPEAL PARTICULARS OF CONVICTION: 1. PLACE OF CONVICTION: Sydney, Nova Scotia. 2. NAME OF JUDGE: Judge Peter Ross. 3. NAME OF COURT: Youth Court for the Province of Nova Scotia. 4. NAME OF CROWN PROSECUTOR AT TRIAL: Richard MacKinnon. 5. NAME OF DEFENCE COUNSEL AT TRIAL: Maurice Smith. 6. OFFENCES FOR WHICH APPELLANT CONVICTED: Break, enter and theft; break, enter with intent and assault. C.A.C. No. 02763 NOVA SCOTIA COURT OF APPEAL and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT BY: PUGSLEY, J.A.

This was an appeal by a young offender who was convicted of nine charges of break and enter and one charge of assault. He argued the youth court judge erred in concluding statements made to the police were made voluntarily. Allowing the appeal and ordering a new trial, that both the appellant's sister and girlfriend gave evidence of inducements by the police to the accused to admit to the alleged crimes, in return for a lighter sentence. The trial judge failed to address this evidence, thereby committing a palpable and overriding error.

3_1993canlii5659.txt

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 052 Date: September 28, 2018 Information: 24004723 Location: Canoe Lake Between: Her Majesty the Queen and Marcien Richard Desjardin Appearing: R. James Fyfe For the Crown Dwayne J. Stonechild For the Accused JUDGMENT D.A. LAVOIE, [1] The accused stands charged as follows:that on or about the 15 of May, A.D. 2015 at Jans Bay, in the Province of Saskatchewan did unlawfully fish for or catch and retain any species of fish in the waters of Jans Bay at approximately 55°10' N 108°08' W, Wepooskow Bay at approximately 55°12' N 108°07' W, and Wepooskow Narrows of Canoe Lake at approximately 55°10' N 108°09' W, all lying within Townships 71 and 72, Range 14, all West of the Third Meridian, and including all waters of Canoe Lake lying within a radius of 2.4 km from the intersection of the centre-line of Wepooskow Narrows with the easterly bank of Canoe Lake at approximately 55°10'30" N 108°08'50" W, contrary to: section 7(2)(b) of the Saskatchewan Fishery Regulations, 1995, made pursuant to The Fisheries Act, RSC 1985, c F-14. Authorities Considered by the Court 1) Treaty No. 10, August 28, 1906 2) The Saskatchewan Natural Resources Act, SC 1930, 41 3) Saskatchewan Fishery Regulations, 1995, SOR 95/233 4) Section 35 of the Constitution Act, 1982 5) Sparrow, 1990 CanLII 104 (SCC), [1990] SCR 1075 6) Gladstone, 1996 CanLII 160 (SCC), [1996] SCR 723 7) Nikal, 1996 CanLII 245 (SCC), [1996] SCR 1013 8) Horseman, 1990 CanLII 96 (SCC), [1990] SCR 901 9) Badger, 1996 CanLII 236 (SCC), [1996] 10) Marshall, 1999 CanLII 666 (SCC), [1999] SCR 533 11) Couillonneur, 2002 SKPC 10 (CanLII) 12) Couillonneur, 1996 CanLII 12082 (SKPC) 13) Goodstriker, 2012 ABPC 319 (CanLII) 14) Lefthand, 2007 ABCA 206 (CanLII) 15) Bruce McKenzie, 2006 SKPC 51 (CanLII) 16) Kristjan Pierone, 2018 SKCA 30 (CanLII) 17) Keepness 1999 CanLII 12424 (SK PC), 1999, 187 Sask (SKPC) 18) Dubois Saskatchewan, 2018 SKQB 241 (CanLII) 19) Jesse Bitz, 2009 SKPC 138 (CanLII) 20) First Nation of Nacho Nyak Dun Yukon, 2017 SCC 58 (CanLII) 21) Ktunaxa Nation British Columbia (Forests Lands and Natural Resource Operations), 2017 SCC 54 (CanLII) 22) Haida Nation British Columbia, 2004 SCC 73 (CanLII) 23) Ron Laviolette, 2005 SKPC 70 (CanLII) Introduction and Issues [2] The accused gave Notice under the The Constitutional Questions Act 2012, SS 2012, C-29.01 setting forth the following: Information: #24004723 TAKE NOTICE THAT PURSUANT to section of the Constitutional Questions Act, Ch. C-29.01, SS 2012, you are hereby given Notice that constitutional question will be argued by defence on the validity of section 7(2)(b) of the Saskatchewan Fisheries Regulations, 1995, made pursuant to The Fisheries Act, RSC, 1985, F-14 that purports to: a.) Restrict the accused’s Treaty and Aboriginal right to fish for food in the Jans Bay (Canoe Lake) geographical area as defined by the Saskatchewan regulation; b.) Infringe upon the accused’s Treaty and Aboriginal right to fish for food, as protected by Section 35(1) of the Constitution Act, 1982. c.) Infringe upon the accused’s Treaty and Aboriginal right to fish for food, as protected, recognized and affirmed by section 25 of the Canadian Charter of Rights and Freedoms. The particulars of the challenge are as follows: That the accused is status Treaty Indian, with Aboriginal and Treaty 10 rights to fish for sustenance; That on May 15, 2015 the accused was seen fishing from an unmotorized boat with his child, close to shore and the accused’s residence, with two poor quality nets in restricted area. It seems to be uncontroverted evidence that the accused was fishing for food. The accused was caught with eight sucker fish, two walleye and one northern pike; Jans Bay is approximately 15 meters behind the residence of the accused on the Canoe Lake First Nation, and is the preferred area for the accused to fish for food. The accused is unemployed and lives in low income household; and Jans Bay was originally closed on April 19, 1993 for regulation because of the overfishing impact of the local commercial fishery industry. This cannot be relied on to infringe upon the Treaty right to fish for food twenty-three years later, when there has been no recent studies, information, consultation or evidence that the infringement is reasonably justified. FURTHER TAKE NOTICE that the remedy the accused will be asking for is stay of the charge. [3] During the course of the trial and in written and oral argument defence somewhat expanded the scope of Constitutional and Treaty rights issues to be considered beyond what was set out in the written Constitutional Notice. The following is summary of the issues that arose and questions to be determined or adjudicated on by the Court: 1) The broad issue is whether the accused, as Treaty Indian fishing for sustenance/food was bound by section 7(2)(b) of the Saskatchewan Fishery Regulations, 1995, SOR 95/233made pursuant to the Fisheries Act, RSC, 1985 F-14?; 2) If he was so bound, does the regulation violate his Treaty right to fish for sustenance/food?; and 3) If his Treaty right was violated, can the regulations be saved or justified by the test set forth by the Supreme Court of Canada in Sparrow, 1990 CanLII 104 (SCC), [1990] SCR 1075 [Sparrow]? [4] The following is summary of the evidence and legislative provisions presented before the Court. [5] Mr. Desjardin is Treaty Indian and on May 15, 2015 he was fishing for food in Jans Bay in the Province of Saskatchewan from boat located within few hundred meters of his house which he built on the shores of Jans Bay around 1991. These waters at the time, were closed to all fishing, including Treaty sustenance fishing pursuant to the Saskatchewan Fishery Regulations, 1995, SOR 95/233. He was using net and had caught eight white sucker fish, two walleye and one northern pike. [6] He in essence admitted to the actus reus of the substantial charge but puts forth as defence his Treaty rights to fish for food in any water and at any time he so chooses. [7] Defence called three witnesses. However, the main constitutional and fisheries evidence was given on behalf of the Crown by Mr. Chad Doherty who was qualified as an expert in fish biology with considerable experience and educational background in fisheries management and ecology. [8] Canoe Lake is fairly large lake the size measuring approximately 14.5 km 18 km, which is little over 21,000 hectares or over 210 square kilometres. Numerous fish population studies describe it as eutrophic lake which is ideal for sustaining large fish populations. [9] The closed fishing areas in question in these proceedings are Jans Bay, Wepooskow Bay and Keeley River which are interconnected to Canoe Lake by the Canoe Narrows. [10] summary of Mr. Doherty’s evidence in relation to the closed fishing areas is that, these water bodies are the main spawning areas for all fish populations in Canoe Lake. The fish congregate in an area at the mouth of Canoe Narrows then move into Jans Bay and Keeley River to spawn. [11] During this process and time period the fish congregate into small areas and are very vulnerable to overfishing. Transcript 197, lines 30 34 Can you explain why that area is closed, the whole area? So so the actual bay itself is closed, including the actual radius that goes into the lake. It is known area for the walleye spawning stock to congregate, making it unique and important area for conservation and sustainable management for the Canoe Lake walleye population. Transcript 198, lines 33 41, 199, lines Sir, just one of the things that occurs to me when look at this geography is that there’s lake, and then there’s little Narrows, and then big bay, and then river. Can you give us any idea of of whether that’s something that you see with other lakes across the province, or how does it’s just it it’s something that I’ve never seen before, but haven’t looked at lot of lakes, like you have. No. Certainly, having an area such as this that is known for the congregating and staging of walleye before going in is an important and and unique area, particularly on Canoe Lake. There are other lakes that will have areas that the walleye populations will stage in front of rivers before moving, but certainly this is an unique and important area on Canoe Lake. Transcript 266, lines 17 30 MR. FYFE: just want to give you an opportunity to summarize. There’s been lot of information that you’ve provided to the Court. And want to just give you an opportunity to, kind of, summarize lot of it now. What is your view on whether the current closure needs to be in place or not into the future? Certainly. The the current closure the recommendation of the 2011 report and its stance today is that the current closure needs to be maintained. The Jans Bay area, including the extension into the river, the or into the lake the radius. And this is directly related to the closure on the Keeley River, as well. Is that it’s unique unique area that is known to have walleye spawning stock congregation. The closure represents conservation measure that is in support of the walleye population recovery efforts and future sustainability of the walleye population for the benefit of of the users of the lake. Transcript 268, lines 35 41, 269, lines What what would, in your opinion what what’s your view of opening up the closed area only to sustenance fishing, and leave it closed for commercial and angling? That would given the nature of what we know about the spawning walleye stock congregating in that area, that that would that would jeopardize the walleye population recovery efforts, future sustainability, and the relationships that have been established with multiple users of the lake in in with regards to overall fisheries management of Canoe Lake. Relationships what do you mean by that? Relationships well, the the support that we have received from from the Band, chief-and-council regarding maintaining of the closure, as well as the support from the commercial Co-op regarding the the closure, as well. And and the the reduction to 5,000-kilogram quota for the commercial quota or or commercial fishery for walleye was done in discussions with the commercial Co-op. [12] The Agreed Statement of Facts confirmed Mr. Desjardin’s Aboriginal Treaty status and right to sustenance fishing. The extent of that right is confirmed by his common law Aboriginal rights set forth in numerous decisions of the Supreme Court of Canada together with written treaties, acts and regulations. [13] The genesis of this is the written text of Treaty No. 10 signed at Isle-à-la-Crosse on August 28, 1906. [14] The signatories to the same were “Chipewyan, Cree and other Indian chiefs and headmen on their own behalf and on behalf of all the Indians whom they represent” which included the Canoe Lake Band members who historically inhabited the shores of Canoe Lake, Jans Bay, Keeley River, and the Wepooskow Bay which are relevant to these proceedings. [15] Other relevant texts of Treaty No. 10 set forth the following: and other Indian inhabitants of the territory within the limits hereinafter defined and described by their chiefs and headmen And whereas the Indians of the said tract, duly convened in council at the respective points named hereunder and being requested by His Majesty’s said commissioner to name certain chiefs and headmen who should be authorized on their behalf to conduct such negotiations and sign any treaty to be founded thereon and to become responsible to His Majesty for the faithful performance by the respective bands of such obligations as shall be assumed by them, And His Majesty the King hereby agrees with the said Indians that they shall have the right to pursue their usual vocations of hunting, trapping and fishing throughout the territory surrendered as heretofore described, subject to such regulations as may from time to time be made by the government of the country acting under the authority of His Majesty and saving and expecting such tracts as may be required to as may be taken up from time to time for settlement, mining, lumbering, trading or other purposes. [16] The wording of the representatives of the Aboriginal peoples of Treaty No. 10, has some relevance to subsequent documents and written representations made on behalf of the Canoe Lake Band members in relation to Treaty fishing rights on Canoe Lake and its interconnected waters and tributaries. [17] Other historical legislative documents include The Saskatchewan Natural Resources Act, SC 1930, 41; s. 35 of the Constitutional Act, 1982; and the Saskatchewan Fishery Regulations, 1995, SOR 95/233. See also: Sparrow; Badger, 1996 CanLII 236 (SCC), [1996] SCR 771 [Badger]; Lefthand, 2007 ABCA 206 (CanLII) [Lefthand]; and Kristjan Pierone, 2018 SKCA 30 (CanLII). [18] Over the years Canoe Lake proved to be very important resource for economic activity and sustenance food source for the Canoe Lake Band members. The three main types of fishing on the lake are significant commercial fishery, significant angler/sport/outfitter fishing and traditional Treaty sustenance fishing. Transcript 204, lines 24 29: …that the walleye numbers were low, based on your results. Why is there such concern about walleye? Walleye are of primary interest to multiple users of of the lake. Canoe Lake is managed as multi-use lake. It has sustenance fishing, commercial fishing, recreational fishing, outfitting. And walleye is one of the primary species for for all of those. [19] The evidence shows Treaty sustenance fishing is the much smaller portion of the total fish harvest but the opinion of experts gleaned from numerous fishery studies on the lake, is that sustenance fishing would have definite negative impact on total fish numbers if it was allowed in the Jans Bay no fishing zone. [20] The commercial fishery has been such significant part of Canoe Lake such that commercial fishery co-op was established in the 1950's. From its inception to this day the co-op, with the authority of the provincial government, manages and has sole discretion in determining who gets commercial fishing licence. [21] Tyler Pouteaux, Conservation Officer with the Provincial Ministry of the Environment gave evidence in relation to his knowledge of the commercial fishing co-op. His evidence remained unchallenged by any defence evidence. They monitor and enforce fishing regulations around Canoe Lake all year round. [22] Since its inception the co-op decides who is eligible to acquire commercial licence. To his knowledge the licence holders are all of status First Nation or Metis heritage from Jans Bay, Canoe Lake/Narrows and Cole Bay communities. The Ministry gets list each year of who has licences. None are non-status or non-Metis. All nets on Canoe Lake are monitored regularly and on daily basis during commercial season. Individuals tag their nets with their commercial licence number or their Treaty card number. [23] They are in regular contact with representatives of Canoe Lake Band office. To his recollection at no time has anyone asked to lift the ban on sustenance fishing in Jans Bay, the waters relevant to these proceedings. Other than the Jans Bay area, Treaty sustenance fishing, with no limits, is allowed all year round on Canoe Lake. [24] The province has been significantly involved with the Canoe Lake Band in monitoring and managing the Canoe Lake Fishery since the 1930's. [25] The evidence discloses that the fish population of Canoe Lake were biologically tested in 1957, 1968 and 1973. The Crown filed written reports of significant testing studies done in April 1969, November 1973, April 1985, February 1990, July 1996 and June 2011. [26] The essence of the studies and the expert opinions formulated from them establishes number of observations: 1) the commercial fishery has always been significant part of Canoe Lake. The records show that the Commercial Fishery catch varied from year to year since 1934-35. The total catch achieved total numbers of 307,790 pounds with 162 licences in 1962-63; 2) upgrading of the provincial highway system in the 1960's increased access to Canoe Lake and the number of sport and outfitter recreational anglers; 3) the number of licences remained high in the 1990's and peaked at approximately 150 in 2001-02; 4) to no one’s surprise the total commercial fish harvest grew exponentially with the number of licences. Coupled with that was the increase in sport fishing from the 1960's on. This resulted in extreme stress on the total fish population of the lake with significant reductions in the same; and 5) this resulted in constant monitoring of fish populations coupled with periodic changes in regulations reducing the commercial and angler fish harvesting quotas. [27] Since 1995 commercial and recreational fishing was closed for the entire lake from March to May 14 each year. Limits for walleye for anglers was reduced from 10 to five to three and today to one per day. Other fish harvest numbers were reduced as well. [28] This did not go unnoticed by the Canoe Lake Band members. The evidence presented to the Court is relevant to the final analysis of Treaty fishing rights in this case. [29] letter dated April 19, 1993, signed individually by the Canoe Lake Chief and Council and the Canoe Lake Fisherman’s Coop was received by the Government of Saskatchewan, and read as follows: April 19, 1993 Dear Sir: On the above date, joint meeting was held between the Canoe Lake First Nation Council and the Fisherman’s Cooperative to discuss Closure of the Narrows and Jans Bay. The Narrows in particular has been concern in recent days due to overfishing by local residents along with allegation of illegal sale of fish to outside and out of province agencies. Those matters prompted the call for the meeting in addition to the fact that these locations are fish spawning areas and the fish are running at this time of the year and this added pressure by anglers will diminish our stock. The consensus of the Members present agreed to re-activate or continue the policy and recommendations agreed upon as per letter dated December 16, 1980 by the Canoe Lake Commercial Fisherman. This will mean the Closure of Jans Bay and the Narrows area from all fishing all year. The Narrows shall be closed within one mile from the shoreline. Canoe Lake Chief and Council Canoe Lake Fisherman’s Coop [30] The result was the passing of regulations by the provincial government in 1995 closing Jans Bay and other waters to all fishing all year round including one mile radius at the Narrows. Today that radius is 1.5 miles. [31] An almost identically worded letter dated October 27, 1997 was also received by the Ministry. It was also signed by the Chief and Council and the Cooperative. [32] The significant difference from 1993 to 1997 was suggesting “the Narrows shall be closed within one and half miles from the shoreline”. [33] This was an increase from the one mile radius in the 1993 letter. [34] The Crown evidence was to the effect that these letters were relied upon by the Government of Saskatchewan each time the applicable legislation was established or amended. [35] For whatever reason copy of the letter dated December 16, 1980 referred to in the 1993 and 1997 letters was never located by any of the parties. Suffice to say that the inference to be drawn is that closure of Jans Bay to “all fishing” appears to have been an issue, within the purview and discussion of the Canoe Lake Band and Council since at least 1980. [36] Norman Opekokew, Conservation Officer with the Saskatchewan Ministry of the Environment gave considerable evidence in relation to fishing in Canoe Lake. It should be noted that all his evidence remained uncontradicted by any defence evidence. He is status member of the Canoe Lake First Nation Band and was raised in that area. His parents still live in the community. He was the officer who investigated and charged Mr. Desjardin with the within offence. [37] His evidence in relation to Jans Bay being closed to Treaty sustenance fishing reads as follows: Transcript 346, lines 14 23, 31 37, 39 41, 347, lines Okay. Now, you’re aware of the the current closure on Jans Bay and the the Keeley River and then the area that juts out into the lake, you’re you know about that closure, of course? Yes. As well as at Weepooskow Bay. Okay. It’s all one all closure. Yeah. And we and and everybody here is familiar with that closure Okay. So you would have you would be aware of that closure in your capacity as conservation officer with the Ministry? Yes. Were you aware of that closure as member of the community, before you were an officer with with the Ministry? Yes. Okay. Can can you describe that for the Court? Were you able to what what to your understanding, when did that closure come into place? How long has it been in place, to your recollection? As long as can remember. don’t remember the details because never did pay attention too much when it was closed. just know that my relatives so my like, my grandfather and my uncles told us that we couldn’t fish there. And we were not allowed to question our uncles and aunts, grandfathers. [38] He then explained how after he charged Mr. Desjardins he spoke to the Band Chief and his brother, Denis Opekokew, who is employed as the Justice Worker for the Band. He was seeking support and clarification in relation to Jans Bay being closed to sustenance fishing. This resulted in him receiving letter dated November 9, 2016 written on Canoe Lake Cree First Nation letterhead which states: November 9, 2016 To Whom it may concern: We the Canoe Lake Cree First Nation and our members do support JANS BAY closure for all fishing. Thank you for your immediate attention to this important matter. If you require further information and/or clarification, please do not hesitate to contact myself and that above number. On behalf of the Chief and Council, Wilfred Iron, Councillor Canoe Lake First Nation [39] He estimated there are 600 700 residents on the Reserve and 300 400 residents at Jans Bay and Cole Bay. There is an annual meeting with the Ministry and the Fishing Co-op to establish commercial fishing dates for Canoe Lake and surrounding waters. [40] To be member of the Co-op you must be resident of the community and one of your parents must have come from one of the three communities. All Co-op members must be Treaty or Metis status members. [41] Officer Norman Opekokew also knows the accused and is familiar with the location of his house. He estimates the accused can access Canoe Lake proper which is open to unlimited Treaty sustenance fishing all year round. His estimates of travel time are as follows: Transcript 360, lines 15 19 MR. FYFE: How far is it drive from the accused’s house to an area any area on Canoe Lake that isn’t subject to the closure? How far would it take person to drive? It looks like about five-minute drive. And if you go by boat, through Jans Bay, through the Narrows, maybe ten minutes, 15 minutes [42] Mr. Joseph Guy Lariviere testified for the accused in relation to the 1993 and 1997 letters. He was Chief of the Canoe Lake band from 1992 to 2010. He has three years of University education at the University of Regina (1971, 72 and 73). He in fact signed the 1993 and 1997 letters as Chief of the Canoe Lake Band. He is presently Senator of the Federation of Sovereign Indian Nations of Saskatchewan. He confirmed the meeting with the Fishing Co-op, which was the genesis for the two letters. [43] His explanation was as follows: Transcript 46, lines 18 28 Oh, okay. So there so there came time in in in the in 1993 when when these two parties here, the the the the chief-and-council and the and and the Fishermen’s Co-op these two parties met. And there came time where they decided that that that that conservation efforts are needed in in Jans Bay? Yes. Why did that happen? Well, just just because what what had said earlier. They they wanted to conserve the fish. They they didn’t want to have they didn’t have the the lakes over over-fished. [44] He confirmed that the members of the Co-op were all band members. In fact the Co-op built fish processing plant on the shores of Canoe Lake with the support of Band Council. He then went on to interpret the wording of “all fishing” in the letters to apply only to commercial fishing and not “Treaty sustenance fishing rights”. [45] From his evidence it appears the letters came from initiatives of Band Council and not at the request of the Provincial Government. He confirmed the Chief and Council are usually the main authority for band members. He also confirmed concern at the time that “there was overfishing by local residents.” [46] In the end Mr. Lariviere was very aware of the conflicts he faced in relation to the wording “this will mean the closure of Jans Bay and the Narrows area from all fishing all year” and his attempt to explain this did not include “Treaty fishing rights”. [47] It was also very clear that he understood the difference between the words “commercial fishing”, “Treaty fishing” and “all fishing”. Further he stated: Transcript 69, lines 28 39 Are you aware of any documents from chief-and-council ever provided to the Government of Saskatchewan in which chief-and-council objected to the Government closure or expressed any concerns about the closure? No, I’m not aware of that. No. And so, again, you were you were chief from 1992 until 2010? That was it, yeah. And at no time during that period that you were chief did you ever write letter or make phone call to representatives of the Government of Saskatchewan expressing your concerns about the closure? Yeah. no, can’t remember. If if did, don’t don’t remember. [48] In the end Mr. Lariviere’s evidence in trying to interpret the letters was of little assistance to the Court. His recollections at the time of signing the letters were somewhat selective and the Court finds it can place little weight on his interpretation of the wording found in the letters. [49] Mr. Francis Xavier Iron, who is the present Chief of the Canoe Lake Band also testified in relation to the November 9, 2016 letter. From his evidence he clearly understood the difference between commercial fishing and “Treaty Sustenance Fishing Rights”. He acknowledged the 1993 and 1997 letters did not differentiate between the two and referred to “all fishing” and could be interpreted to prohibit sustenance fishing by local residents. [50] He also confirmed the November 9, 2016 letter from the Band was signed by Council member and was provided to the Government. He was aware of both the charges against Mr. Desjardin and the 2016 letter. He acknowledged since then he has not initiated any contact with Government nor within Band council to retract the letter or proffer different wording for the letter. [51] He himself knows of the Jans Bay closure and does not fish in those waters. He has always been aware of the Jans Bay closure. His response to the same is as follows: Transcript page 159, lines 21-24, 160, lines 17 And during any of the time that you’ve been in First Nation government, either as counselor or as as Chief, have you expressed any concerns or objections to government about the closure? No. MR. FYFE: So we’ll just put that aside for now. When you were councillor. What about about as Chief, would you have had the capacity to express an objection or concern with anything that Government was doing, whether it’s the closure or anything else? No. But they’ll be getting it now. You’re beginning it now? Oh, yeah, it’ll come. Oh, it will come? Okay. As result of this litigation? No, no. Just it’s such big issue, that we should have addressed it long time ago. [52] Mr. Desjardin gave evidence in his own defence. At the invitation of defence the Court visited his residence and viewed the location where he was fishing on May 15, 2015. summary of his evidence is as follows: he is age 62 and has fished and hunted all his life. On the date in question he was fishing for food for their evening meal. Over the years he had different employment including heavy equipment operator. He owns truck and often transports his boat to Canoe Lake, which is five minute drive, and other nearby lakes to partake in sustenance fishing. He has certain pension income and his wife is also employed. As he ages his preference is to fish in Jans Bay, however he can clearly access other bodies of water to fish. Analysis and Conclusions [53] Mr. Desjardins admits to the actus reus but puts forth his Treaty right to fish wherever and whenever he wants. The onus and evidentiary burden to prove violation of his Treaty rights shifts to Mr. Desjardin to prove the same on balance of probabilities. (Sparrow at para 112). [54] His Treaty right to fish is expressly subject to government regulation within the wording of Treaty No. 10 “subject to such regulations as may from time to time be made by the government.” See also: Goodstriker, 2012 ABPC 319 (CanLII) [Goodstriker]; Lefthand Bruce McKenzie, 2006 SKPC 51 (CanLII) [McKenzie]; and Kristjan Pierone, 2018 SKCA 30 (CanLII) [Pierone]. [55] In other words, the right to fish is internally limited by the scope of the regulations closing Jans Bay to all fishing. [56] The Alberta Court of Appeal’s decision in Lefthand is closely on point. In Lefthand Justice Slatter held that conservation and safety regulations are contemplated by the Treaties as an internal limit to fishing and hunting rights: [99] First, are the regulations part of bona fide scheme of management and conservation of the game stocks? Second, are the regulations contrary to any express promises or covenants in the Treaty or elsewhere? Third, is there any evidence that the scheme has been structured in way that discriminates against the aboriginal fishery, and to what extent do the regulations give others priority to the game stocks? Fourth, are the regulations reasonable, in the sense that they are rational and proportional to the conservation objective? Fifth, what practical effect do the regulations actually have on the Indians ability to exercise their right to hunt and feed themselves? See also: McKenzie; Pierone; and Couillonneur, 2002 SKPC 10 (CanLII). [57] “No absolute priority or exclusivity need be given to the Aboriginal fishers, so long as meaningful recognition is given to their rights.” Lefthand, para 111, Badger, 1996 CanLII 236 (SCC), [1996] SCR 771, para 70. [58] The evidence, which is unchallenged by any defence expert evidence, clearly establishes the regulations are solely based on an integrated, absolutely necessary conservation scheme. The closure area applies to all users of the resource. The waters outside the closure area, the balance of Canoe Lake, are subject to number of severe restrictions on recreational and commercial fishing, both in terms of seasonal closures and catch limits. At the same time those waters are open to sustenance fishing all year round with no catch limits. In other words, the balance of the conservation scheme puts no infringement whatsoever on Treaty fishing. [59] If the Court is wrong on the internal restriction then it must turn to the principles established by the Supreme Court of Canada in Sparrow. These guidelines were set out in Lefthand at para 79: The Sparrow Principles [79] The leading case in this area is still Sparrow (which involved fishing rights in British Columbia), as it has been interpreted by some of the later cases. The facts in Sparrow can be distinguished in some important respects from the present two appeals. Sparrow concerned fishing rights in British Columbia, and did not concern treaty, or the Transfer Agreements of 1930. It therefore did not consider aboriginal rights that were inherently subject to an express “right to regulate”. Sparrow covered number of important topics: (a) it set out the scope and meaning of s. 35 of the Constitution Act, 1982; (b) it confirmed that aboriginal fishing rights evolve over time; (c) it held that any extinguishment of aboriginal rights prior to 1982 must have been plain and obvious; (d) it held that the scope of pre‑contact, unsurrendered aboriginal right must be determined by examining how the right was historically exercised; (e) it recognized trust‑like relationship between the Crown and the aboriginal peoples, and held that aboriginal rights must be recognized and interpreted with that in mind; (f) it held that not every interference with an aboriginal right constitutes an infringement of that right (at pg. 1112). The interference must be examined for unreasonableness, undue hardship, and interference with the preferred means of exercising the right. An interference that meets this test and “unnecessarily” infringes right is then said to be “prima facie infringement”. (g) it concluded that aboriginal rights are not immune from regulation, but that government regulation that “infringes upon or denies” an aboriginal right (i.e. is prima facie breach) must be “justified” (at pp. 1101, 1109‑10, 1113). To be justified the regulation must be in furtherance of valid objective, and must meet fluid test having regard to the fiduciary duties of the Crown, the allocation of scarce resources, the priority to be given to the aboriginal food fishery, whether the infringement has been minimized, whether compensation is possible, whether the aboriginal communities have been consulted, and other relevant factors. [60] The generous approach to the interpretation of Indian treaties was elaborated upon by Cory, in Badger at para 41, where he states: First, it must be remembered that treaty represents an exchange of solemn promises between the Crown and the various Indian nations. It is an agreement whose nature is sacred. See R. v. Sioui, 1990 CanLII 103 (SCC), [1990] S.C.R. 1025, at p. 1063; Simon v. The Queen, 1985 CanLII 11 (SCC), [1985] S.C.R. 387, at p. 401. Second, the honour of the Crown is always at stake in its dealing with Indian people. Interpretations of treaties and statutory provisions which have an impact upon treaty or aboriginal rights must be approached in manner which maintains the integrity of the Crown. It is always assumed that the Crown intends to fulfil its promises. No appearance of "sharp dealing" will be sanctioned. See Sparrow, supra, at pp. 1107-8 and 1114; R. v. Taylor (1981), 1981 CanLII 1657 (ON CA), 34 O.R. (2d) 360 (Ont. C.A.), at p. 367. Third, any ambiguities or doubtful expressions in the wording of the treaty or document must be resolved in favour of the Indians. corollary to this principle is that any limitations which restrict the rights of Indians under treaties must be narrowly construed. See Nowegijick v. The Queen, 1983 CanLII 18 (SCC), [1983] S.C.R. 29, at p. 36; Simon, supra, at p. 402; Sioui, supra, at p. 1035; and Mitchell v. Peguis Indian Band, 1990 CanLII 117 (SCC), [1990] S.C.R. 85, at pp. 142 43. [61] Having concluded that Treaty No. 10 provides the right to fish for food, the question now turns to whether the Jans Bay closure regulations is an infringement of that right. In Goodstriker, para 60, 61 and 62 the Court stated: [60] Having concluded that Treaty provides right to fish for food within the parameters established by the NRTA, the question now turns to whether the fishing regulation that closes all fishing on specific parts of the St. Mary’s River and its tributaries for period is an infringement of that right. The Defendants have the burden of showing that the effect of the legislation is to interfere with the exercise of their right so as to demonstrate prima facie infringement, which would then require the Crown to justify such infringement: (R Sparrow, 1990 CanLII 104 (SCC), [1990] SCR 1075 at p.1112). [61] What amounts to prima facie infringement has been described in various ways. Some of them are as follows: “an adverse restriction on the ... exercise of the right to fish for food” (Sparrow, p.1112) circumstances that “clearly impinge upon”, the right (R Nikal, 1996 CanLII 245 (SCC), [1996] SCR 1013 at para.106) “unnecessarily infringe the interests protected” by the right (Sparrow, p.1112-1113) meaningful demonition of the ... “rights” (R Gladstone, 1996 CanLII 160 (SCC), [1996] SCR 723 at para.43) “more than mere inconvenience” (Nikal, para.100) [62] In Morris 2006 SCC 59 (CanLII), [2006] SCR 915 para.47-53 the Court makes it clear that an “insignificant interference” with treaty right is not an infringement. [62] In this case, the evidence establishes Mr. Desjardin could easily fish in other nearby waters. It is just that his preference is and more convenient to fish in Jans Bay. He has not established on balance of probabilities “prima facie” infringement as contemplated by the jurisprudence. [63] If the Court is in error about prima facia infringement then it must proceed to an analysis of what is often referred to as the test in Sparrow. [64] In Sparrow, 1990 CanLII 104 (SCC), [1990] SCR 1075, [1990] WWR 410, the Supreme Court of Canada, dealing with case involving an Indian’s right to fish for food off the coast of British Columbia, set out guidelines to use in looking at legislation that might affect an existing Aboriginal right. At page 437, Chief Justice Dickson and Mr. Justice La Forest, speaking for the Court, said: The first question to be asked is whether the legislation in question has the effect of interfering with an existing aboriginal right. If it does have such an effect, it represents prima facie infringement of s. 35(1) [of the Constitution Act, 1982]. To determine whether the fishing rights have been interfered with such as to constitute prima facie infringement of s. 35(1), certain questions must be asked. First, is the limitation unreasonable? Second, does the regulation impose undue hardship? Third, does the regulation deny to the holders of the right their preferred means of exercising that right? The onus of proving prima facie infringement lies on the individual or group challenging the legislation. [65] Upon full analysis the Court would be of the view that the Saskatchewan Fishery Regulations, 1995, SOR 95/233 are not prima facie infringement of the accused’s Treaty fishing rights. [66] If the Court is in error on that point then it must proceed to the next step in Sparrow which is the justification process. [67] The justification test set out by the Supreme Court in Sparrow involved two main questions: 1) Is there valid legislative objective? [68] In Sparrow the Chief Justice stated at 438: If prima facie interference is found, the analysis moves to the issue of justification. This is the test that addresses the question of what constitutes legitimate regulation of constitutional aboriginal right. The justification analysis would proceed as follows. First, is there valid legislative objective? Here the court would inquire into whether the objective of Parliament in authorizing the department to enact regulations regarding fisheries is valid. The objective of the department in setting out the particular regulations would also be scrutinized. An objective aimed at preserving s. 35(1) rights by conserving and managing natural resource, for example, would be valid. Also valid would be objectives purporting to prevent the exercise of s. 35(1) rights that would cause harm to the general populace or to aboriginal peoples themselves, or other objectives found to be compelling and substantial. [69] This suggests valid objective will be one that is important enough to outweigh the Aboriginal right. The Supreme Court has stated valid objective would be one aimed at the conservation or management of natural resource. [70] As stated earlier, the uncontradicted evidence clearly establishes the need to protect the fish stocks which was the sole intent of the regulations. 2) Second stage involves the honour of the Crown? This in turn raises two questions: a) Has there been as little infringement as reasonably possible in order to affect the desired outcome? Considering the evidence the answer to that is yes. b) Has the Aboriginal group in question been consulted with respect to the regulation? Considering the three letters of 1993; 1996 and 2016 the logical interpretation of the letters and inference to be drawn is that the answer is yes. [71] It may be that some Aboriginal leaders feel the closure could or should maybe be revisited. However, there is no expert evidence presently available to create foundation for logical revisitation. In addition, the evidence establishes this has been very cooperative effort over the last thirty plus years between Canoe Lake community and the Government to deal with this in logical, objective, conservation focussed way to protect the fish population while still respecting the Treaty right to fish. [72] In conclusion, the accused has failed to show a breach of his Treaty fishing right that would raise a defence or a Charter remedy to the charge against him:1) The challenged regulations are within the implied common law limitations on Aboriginal fishing rights;2) Alternatively the regulations are within the proviso of Treaty No. 10 and constitutional legislative enactments for “regulations to be made” by government;3) Alternatively, if the regulations are not within the implied or express limitations of the right, evidence does not establish a prima facie infringement of the right;4) Alternatively, if there was a breach, said breach meets the justification principles set out in Sparrow and Pierone. [73] The Court finds the accused guilty as charged. D.A. Lavoie,

/n The accused was charged with violating s. 7(2)(b) of the Saskatchewan Fishery Regulations, 1995 by unlawfully fishing in an area of Canoe Lake, specifically Jans Bay, that had been closed to all fishing since 1993 because of overfishing by the local commercial fishery industry. The accused, a status Indian with Aboriginal and Treaty 10 rights, was fishing for food. He had used a net in the restricted area and had caught eight suckers, two walleye and one northern pike. The Bay was very close to the residence of the accused on the Canoe Lake First Nation and was his preferred area to fish. The remainder of Canoe Lake was subject to restrictions governing all fishing but open to unlimited Treaty sustenance fishing all year round. The accused admitted to the actus reus of the offence. Under the Constitutional Questions Act, 2012 the accused gave notice that he would argue that s. 7(2)(b) of the regulations was invalid because it restricted his Treaty and Aboriginal right to fish food in the restricted area as defined by the Regulations; infringed his Treaty and Aboriginal right to fish for food as protected by s. 35(1) of the Constitution Act, 1982; and infringed his Treaty and Aboriginal right to fish for food as protected by s. 25 of the Charter of Rights. The agreed Statement of Facts confirmed the accused’s Aboriginal Treaty status and right to sustenance fishing. The Crown’s major witness was an expert in fish biology and he testified that the restricted area had been closed to protect it for walleye spawning. He stated that the closed area could not be opened for sustenance fishing. The conservation effort had been supported by the Canoe Lake Band Council./n HELD: The accused was found guilty. The court found that the accused had failed to show a breach of his Treaty fishing right that would raise a defence or a Charter remedy to the charge against him: 1) the challenged regulations were within the implied common law limitations on Aboriginal fishing rights; 2) alternatively, the regulations fell within the provisions that permitted such regulations in Treaty 10; 3) alternatively, if they were not within the implied limitations of the right, the evidence had not established a prima facie infringement of the right; 4) alternatively, if there was a breach, it met the justification principles set out in Sparrow and Pierone.

b_2018skpc52.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2006 SKQB 176 Date: 2006 04 13 Docket: D.I.V. No. 004480/2002 Judicial Centre: Moose Jaw (formerly Assiniboia), Family Law Division BETWEEN: NADINE MARIE PONDER (formerly Therrien) and MICHAEL GEORGE THERRIEN Counsel: L. Lee Mountain for the respondent, Michael George Therrien Ronald J. Miller for the Reginald E. Sauer FIAT GUNN J. April 13, 2006 [1] Michael Therrien brings an application for a court order requiring Reginald Sauer to withdraw as solicitor for Nadine Therrien. [2] The basis of the application is that the parties participated in Collaborative Law process whereby it is alleged by Mr. Therrien that confidential information was shared. Mr. Therrien submits that it would be conflict of interest for Mr. Sauer to continue to represent Ms. Therrien, as the issues between the parties have not been settled. Mr. Therrien further relies on the provisions of the collaborative law agreement signed by the parties. [3] There is dispute on the facts concerning what was discussed at the initial meeting of the parties with their lawyers. The Parties’ Views Nadine Ponder( formerly Therrien) [4] Ms. Ponder (formerly Therrien) deposes to the following: 2. retained my current lawyer, Reg Sauer, of Richmond Nychuk law firm in October, 2003 when decided would be moving to Texas.... 3. was notified by Michael in late November ... that he retained Mr. Merv Nidesh. Attached as Exhibit “B” is true copy of the December 11, 2003 correspondence sent by my lawyer to Mr. Nidesh. [That correspondence provides in part the following:] You may recall that we spoke to each other on November 27, 2003 regarding Nadine and Michael Therrien. At that time you indicated that you had met with Michael, but you were not formally retained. Following that conversation wrote to Michael Therrien suggesting that he and Nadine resolve their custody issues through the collaborative process. Attached is copy of my November 27, 2003 correspondence to Michael. On December 8, 2003, Michael contacted Nadine to inform her that he had met with you. He indicated that he did not want to go to court and would prefer to use mediation or collaborative process. Please confirm whether you are now representing Michael Therrien. If Michael is interested in the collaborative process, our client would like to see first meeting occur before Christmas. look forward to hearing from you. 4. We were not able to schedule our first meeting until January 9, 2004 at my lawyer’s office in Regina. attended that meeting with my lawyer, Mr. Nidesh and Michael. Both Mr. Sauer and Mr. Nidesh explained to Michael and at that meeting that we had two versions of the Collaborative Contract to choose from. One version required our lawyers to withdraw if matters proceeded to court and the other version allowed us to keep our lawyers if we chose to. 5. It was my position at this meeting that did not want to incur the additional cost or delay involved in retaining new counsel if we could not resolve matters. Michael agreed and we decided to sign the version of the Collaborative Contract which did not require our counsel to withdraw if matters went to court. 6. On March 11, 2004 Michael contacted me to inform me that he was no longer interested in proceeding with the collaborative meetings. then instructed Mr. Sauer to inform Mr. Nidesh that would be bringing court application. Attached as Exhibit “C” to this my affidavit is true copy of the March 12, 2004 correspondence from Mr. Sauer to Mr. Nidesh. [That correspondence provided the following in part:] ... [Michael] indicated that he is no longer interested in attending any further collaborative meetings. In light of this information, Nadine has instructed me to give you the notice required under section 13.4 of the Collaborative Contract that she intends to bring court application returnable after the 30 day waiting period from the date on which Michael notified her that he withdrew from the process. 8. On July 13, 2004 was contacted by the R.C.M.P. and notified that required new Court Order before could cross the border into the United States with the children. also received letter in the mail from Michael’s new lawyer, Lee Mountain. Attached as Exhibit “E” to this my affidavit is true copy of the July 12, 2004 correspondence from Lee Mountain. [The correspondence provided the following in part:] This office acts as solicitor for Michael Therrien of Willow Bunch.... Mr. Therrien has instructed this office to make court application changing the principal residence of the children from you to him.... Could you please advise this office of who your new lawyer will be so that we can provide copies of the court papers for the Application we are preparing now, to them. The lawyer you used in the collaborative law process would have signed an agreement that he could not continue to act for you if no settlement was reached collaboratively. We will be making an Interim application for court order providing that you cannot take the children out of the province.... [Emphasis added] Michael Therrien [5] Michael Therrien deposes to the following in his affidavit of February 27, 2006: 2. That in December of 2003 and January of 2004 took part in Collaborative Law process with Nadine Marie Therrien. Nadine’s lawyer in that process was Reginald E. Sauer, mine was Merv Nidesh. Collaborative Law Contract was signed by us dated January 9th, 2004.... 3. The Collaborative Law process encourages private and confidential information to be shared at meetings with clients and lawyers, whether or not that information is shareable in court process. would be severely prejudiced if Nadine’s lawyer, who took part in the collaborative law process were allowed to continue to act as her lawyer at trial. The spirit of confidentiality of collaborative law meeting is broken if lawyer that takes part in one can act at trial. 5. did not agree that our lawyers would not have to withdraw. That is not included in the contract. have obtained another lawyer, as required by the Contract, the petitioner has not, despite being asked to do so. When signed this contract it was my belief that if the collaborative law process did not work both of our lawyers would be required to withdraw. We had discuss [sic] at the meeting that that was the main reason that collaborative law could work. It would take the meat out of the process and violate the confidentiality of the process if we went through that process and our lawyers were allowed to continue to act at trial. That was NOT my understanding when signed the Contract. My understanding was that both lawyers would withdraw as set out in par. 13.4. [Emphasis added] [6] Michael Therrien deposed to the following in his affidavit of March 15, 2006: 2. On January 9, 2004 attended Collaborative Law meeting at Reg Sauer’s office in Regina. do not recall seeing another draft of the Collaborative Law Contract that has been filed as Exhibit “E” in the Affidavit of Reginald Sauer, dated March 1st, 2006. have never read that document. have never been given copy of it. do not recall talking about 2nd contract at the meeting. 3. have reviewed the minutes of our Collaborative Law meeting held January 9th, 2004. The minutes were prepared by Reg Sauer. The minutes of the meeting make no mention of discussing two contracts or that there was any agreement that the lawyers need not withdraw.... 4. received letter dated November 27th, 2003, from Reginald E. Sauer.... Mr. Sauer was describing to me what the Collaborative Law process is by sending to me sheet entitled “Collaborative Law Common Questions and Answers”. When read this got an understanding of what Collaborative Law is. The outline Mr. Sauer sent me does not include two versions of collaborative law process. [The first paragraph of the Common Questions and Answers is the following:] 1. What is Collaborative Law: Collaborative Law is concept developed by Minneapolis lawyer named Stu Webb approximately ten years ago. Mr. Webb was discouraged and disheartened by the negative effects of the traditional and legal court process on families during family breakdown. The key concept he developed was that the lawyers and clients would sign an agreement at the outset promising to negotiate in good faith. In addition, the lawyers would promise that if the case was not settled, they would withdraw as would their law firms and the parties would seek new lawyers.... 5. did not agree that our lawyers would not have to withdraw. was not aware there was any type of collaborative law process where the lawyers can stay on in court case. 9. When went to Mountain and Mountain Law Firm to have consent order prepared, in the summer of 2004 did so not because was dissatisfied with Mr. Nidesh’s services, but because believed could not use the same lawyer as set out in the Collaborative Law Contract. [Emphasis added] The consent order referenced by Mr. Therrien was presented to the court by Ms. Mountain July 21, 2004. In her letter to the court Ms. Mountain said the following in part: “The husband and wife used collaborative law to negotiate settlement but did not reach one. Later they reached an agreement which they asked me to register as consent court order. Mr. Therrien advised that the solicitors on record could not continue to act due to the collaborative law agreement. The Lawyers’ Views Reginald Sauer [7] Mr. Sauer deposes to the following in his affidavit of March 1, 2006 filed in response to the application by Michael Therrien: 2. On February 23, 2006 received telephone call from Lee Mountain requesting that provide her with copy of the Collaborative Contract that had been signed by our clients. Lee Mountain also questioned whether could continue to represent the Petitioner in these proceedings. Attached as Exhibit “A” to this my affidavit is true copy of the February 23, 2006 correspondence that faxed to Lee Mountain as result of our conversation. The signed Collaborative Contract that is referred to in my February 23, 2006 correspondence is attached as Exhibit “A” to the Respondent, Michael George Therrien’s February 27, 2006 affidavit. The correspondence provides the following in part: ... attach copy of the Collaborative Contract that was signed by Nadine and Michael. also attach copy of the January 7, 2004 correspondence to Mr. Nidesh confirming that there would be two versions of the Collaborative Contract available for the parties to review at the first meeting on January 9, 2004. At that meeting Nadine and Michael decided to sign the version of the Collaborative Contract that did not disqualify counsel from continuing to act if the matter went to court.... 3. Attached as Exhibit “B” to this my affidavit is true copy of the January 7, 2004 correspondence addressed to Mr. Merv Nidesh that was referred to in my February 23, 2006 correspondence to Lee Mountain. The January correspondence referred to contains the following in part: ... As discussed, will have two versions of the Collaborative Contract available for the parties to review at that time.... 4. Attached as Exhibit “C” to this my affidavit is true copy of my file notes relating to telephone conversation that had with Merv Nidesh on January 6, 2004. My notes which were made at the time the telephone conversation took place state “have both forms of K’s avail one keep lawyer if ct, one new lawyer if ct”. 5. On February 24, 2006 received letter from Lee Mountain dated February 21, 2006 which indicated that she had received the Collaborative Law Agreement and stated “if you do not agree to withdraw we will be making an application to the court to request that you do”. Attached as Exhibit “D” to this my affidavit is true copy of my February 24, 2006 correspondence to Lee Mountain responding to her correspondence. That correspondence said the following in part: ... The issue of the lawyers continuing to act for the parties if the matter went to court was specifically addressed with both Nadine and Michael. They chose to agree that their lawyers could continue to act for them if the matter proceeded to court. 7. At the time the Collaborative Contract was signed on January 9, 2004 it was the intention of both parties and their lawyers that the meetings would be treated as without prejudice meetings and that both parties would be entitled to retain their lawyers in the event matters proceeded to court. [Emphasis added] [8] Mr. Sauer filed supplemental affidavit sworn March 14, 2006. In it he provides the following additional information: 3. In preparation for the January 9, 2004 meeting had prepared two versions of the Collaborative Contract. The first version included paragraphs 13.1, 13.2 and all of paragraph 13.5 in the Collaborative Contract [which deal with the withdrawal of counsel specifically] ... The second version of the Collaborative Contract was the version that Michael and Nadine ultimately signed.... 4. At the January 9, 2004 meeting Mr. Nidesh and explained to our clients that the standard version of the Collaborative Contract required their lawyers to withdraw if matters were not resolved and the parties had to proceed to court. We also explained that they had an option to delete that requirement which would allow them to retain their lawyers if matters proceeded to court. 5. Michael and Nadine decided to sign the version of the Collaborative Contract that would allow them to keep their lawyers for future court proceedings. [Emphasis added] Merv Nidesh [9] Mr. Nidesh deposes to the following in his affidavit of March 21, 2006: 2. That in January of 2004 took part in Collaborative Law process with Michael George Therrien, and Nadine Marie Therrien. Nadine’s lawyer in that process was Reginald E. Sauer. Collaborative Law Contract was signed by us dated January 9th, 2004, and have been advised, copy was filed as Exhibit “A” to the Affidavit of Michael George Therrien, sworn February 20th, 2006 in this matter. 3. That have looked through my client file. do not have, from reviewing my file, copy of any other Collaborative Law Contract. Specifically have reviewed copy of the document that was “Draft Collaborative Law Contract that has been filed as “Exhibit “E” in the Affidavit of Reginald Sauer, dated March 1st, 2006. do not have copy of that document, nor did have one that later mailed to my client. 4. have reviewed the Minutes of the Collaborative Law meeting held January 9th, 2004. There is no mention made in the minutes of discussion of or review of two contracts. My recollection of the meeting was that the children were the main focus of the discussion. It is possible that two different contracts were discussed but have no recollection of whether it was or not. 6. My file includes no notes or other correspondence, including any letters to my client, in regard to lawyers either withdrawing, or not being required to withdraw as result of the Collaborative Law process. do not have any recollection of whether this was discussed with either of the parties or Reginald Sauer. DISCUSSION [10] The conflict in the facts was apparent at the time of the initial application. The parties were given leave to file additional evidence on the issues which were in conflict. The additional evidence did not resolve the conflicts. [11] Mr. Sauer acknowledges that the only way to resolve the conflicts would be by holding a viva voce hearing. On that basis, Mr. Sauer agrees to withdraw as counsel, so the parties may proceed to pre-trial and a trial if necessary on the issues. [12] As Mr. Miller has agreed to act as counsel for Ms. Ponder for the pre-trial, it is set for April 28, 2006. make no order as to costs.

FIAT: The respondent brings an application for a court order requiring Reginald Sauer to withdraw as solicitor for the petitioner. The basis of the application is that the parties participated in a Collaborative Law process whereby it is alleged by the respondent that confidential information was shared. The respondent also relies on the provisions of the collaborative law agreement signed by the parties. HELD: 1) The conflict in the facts was apparent and was not resolved by additional evidence. 2) Mr. Sauer agreed to withdraw as counsel so the parties may proceed to pre-trial and a trial without the necessity of a viva voce hearing.

6_2006skqb176.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2013 SKQB 90 Date: 2013 03 15 Docket: Q.B.G. No. 1356 of 2012 Judicial Centre: Saskatoon BETWEEN: JAMES GLEN RICHARDSON and STEPHANIE ERIN RICHARDSON APPELLANTS (DEFENDANTS) and ROBERT WESLEY DEVLIN HANCOCK RESPONDENT (PLAINTIFF) Counsel: Davin R. Burlingham for the appellants (defendants) Robert Wesley Devlin Hancock respondent (plaintiff), self-represented JUDGMENT GABRIELSON J. March 15, 2013 Introduction [1] This is an appeal from a Small Claims Court judgment dated August 20, 2012. The grounds of appeal listed in the notice of appeal are as follows: a) That the learned Trial Judge erred in failing to weigh necessity and qualification before determining the admissibility of certain opinion evidence tendered on behalf of the Plaintiff. b) That the learned Trial Judge erred in failing to conduct the trial in reasonable and just fashion by denying the Defendants an opportunity to make objections from time to time during the trial. c) That the Learned Trial Judge made palpable and overriding error in interpretation of the evidence and calculation of damages. The Learned Trial Judge found the Plaintiff had proven liability with respect to damaged triple-ply beam, the cost of which was small part of the Claim. The Learned Trial Judge then awarded damages for repair of broken concrete grade beam and for other repairs, in an amount much higher than damages would have been for the triple-ply beam, notwithstanding that liability as to the concrete grade beam was not established at trial. [2] The respondent, Robert Wesley Devlin Hancock (hereafter “Hancock”), purchased house having the civic address 515 Avenue North, Saskatoon, Saskatchewan, from the appellants James Glen Richardson and Stephanie Erin Richardson (hereafter “the Richardsons”), pursuant to Residential Contract of Purchase and Sale (“the contract”) dated July 4, 2007. As part of the contract, the Richardsons completed document entitled “Property Condition Disclosure Statement” (“the disclosure statement”), s. 3(j) of which provided as follows: 3(j) Are you aware of any structural defects in the dwellings/improvements? Answer: Yes some cracking in the house footing on the north side of the dwelling. [3] In accordance with the contract, Hancock took possession of the house in September of 2007. [4] In June of 2010, following large rainstorm, Hancock saw that water was entering the basement of the house. When he investigated the source of the water and removed the interior north wall in the basement, he saw second wall behind the first wall. Behind the second wall he found that large chunk of the concrete footing and concrete grade beam were broken and had slid into the space behind the interior basement wall. When he sought professional’s opinion, he was advised that the appearance of the broken edges of the concrete footing appeared to be indicative of significant passage of time and that the main triple-ply wooden beam (the “wooden beam”) which had sat upon the concrete grade beam was also rotten and would have to be replaced. [5] Hancock entered into contract with Mighty Joe’s Contracting to have the north foundation replaced, including the wooden beam. The contract price was $19,265.40 plus electrical, plumbing, and insulation supplies for total cost of $19,606.74. In November of 2011, Hancock sent demand for payment of these repair costs to the Richardsons who responded indicating they were unaware of any issues beyond what was disclosed at the time of purchase and denied all responsibility for Hancock’s cost of repairs. [6] On February 15, 2012, Hancock commenced an action in the Provincial Court of Saskatchewan Civil Division in which he claimed judgment in the amount of $19,606.74 plus pre-judgment interest and costs. trial was held in Small Claims Court on May 16, 2012. In written decision dated August 20, 2012 (2012 SKPC 132 (CanLII), 403 Sask.R. 171), the Provincial Court judge (Whelan, P.C.J.) held that: (1) there was structural defect in the north basement wall of the house during the time that the Richardsons owned the house; (2) the Richardsons were aware of the seriousness of the defect; (3) the statements made by the Richardsons in the disclosure statement were misleading, and had been relied upon by Hancock to his detriment; (4) in covering the old retaining wall with new interior wall, the Richardsons had converted what was patent defect or one that was readily discoverable into latent defect; (5) the disclosure statement amounted to negligent misrepresentation; and (6) damages in the amount of $18,006.74 together with interest pursuant to The Pre-judgment Interest Act, S.S. 1984-85-86, c. P-22.2, from September 4, 2007 to the date of judgment plus costs were awarded. [7] It is from this judgment that the Richardsons have brought this appeal. Jurisdiction and Standard of Review [8] Section 39(1) of The Small Claims Act, 1997, S.S. 1997, c. S-50.11, provides that party may appeal judgment made pursuant to that Act to the Court of Queen’s Bench within 30 days after the date of the judgment. Section 40 of the Act provides that the appeal is in the form of an appeal on the record. Pursuant to s. 42, judge hearing the appeal may allow the appeal and give the judgment that the trial judge should have given, dismiss the appeal, or order that the action be returned to Provincial Court for new trial. [9] The standard of review in respect to appeals brought pursuant to s. 39 of the Act was dealt with in the case of Kitzul v. Ungar (1991), 1991 CanLII 7678 (SK QB), 90 Sask.R. 239, [1991] S.J. No. 24 (QL) (Q.B.), where Maurice J. stated at para. [3] This Court has no power under this section to rehear or retry case; it is limited to correcting errors of law and reversing unreasonable findings of fact. Findings of fact based on the credibility of witnesses are not to be reversed unless the trial judge made some palpable and overriding error which affected his assessment of the facts. The trial judge is in privileged position as trier of fact because he has the benefit of seeing and hearing the witnesses: Lensen v. Lensen, 1987 CanLII (SCC), [1987] S.C.R. 672; [1988] W.W.R. 481; 79 N.R. 334; 64 Sask.R. 6. [10] In the case of Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] S.C.R. 235, the Supreme Court of Canada referred to the role of an appellate court which would also apply to the appeal before me. At para. 23 that court stated: 23 We reiterate that it is not the role of appellate courts to second- guess the weight to be assigned to the various items of evidence. If there is no palpable and overriding error with respect to the underlying facts that the trial judge relies on to draw the inference, then it is only where the inference-drawing process itself is palpably in error that an appellate court can interfere with the factual conclusion. The appellate court is not free to interfere with factual conclusion that it disagrees with where such disagreement stems from difference of opinion over the weight to be assigned to the underlying facts. As we discuss below, it is our respectful view that our colleague’s finding that the trial judge erred by imputing knowledge of the hazard to the municipality in this case is an example of this type of impermissible interference with the factual inference drawn by the trial judge. Therefore, will review the trial judge’s decision to see if there are errors of law which should be corrected and to reverse findings of fact only if the trial judge has made some palpable and overriding error which affected her assessment of the facts. Ground No. Did the trial judge err in the admission of expert evidence? [11] Hancock gave notice of intention to call and did call as an expert witness, Joey Aubin of Mighty Joe’s Contracting. Mr. Aubin had investigated the cause of the water inflow and had made recommendations concerning the repairs needed. Mighty Joe’s Contracting completed the remedial work required to repair the foundation and support beams. [12] At trial, counsel for the Richardsons raised an objection in which he submitted that although Mr. Aubin was qualified to give expert evidence concerning the foundation repair, he was not qualified to give expert or opinion evidence in “diagnosing when structural problem occurred”. The trial judge noted the objection and dealt with it in the following fashion: THE COURT: Do you know what? think it would be just simpler if we didn’t didn’t deal with this as qualification of his expertise, hear how it comes out and then we can talk about it in argument. That’s what I’m inclined to do. MR. BURLINGHAM: agree with that, Your Honour. THE COURT: Okay. All right. So that means that am qualifying you to expert or to testify in the area of foundations and structural repair. All right. And we’ll turn it over to Mr. Hancock to lead his evidence. Not lead but pursue his chief. [13] Counsel for the Richardsons referred the court to the cases of R. v. Mohan, 1994 CanLII 80 (SCC), [1994] S.C.R. 9, 114 D.L.R. (4th) 419; and Rieger v. Burgess, 1988 CanLII 209 (SK CA), [1988] W.W.R. 577, 66 Sask.R. (C.A.). Counsel submitted that until such time as the trial judge has concluded that the witness was properly qualified in respect to specific area of expertise, the witness should not have been allowed to give opinion evidence in that area. Counsel submitted that in her trial decision at para. 34, the trial judge accepted Mr. Aubin’s evidence as to the rotten condition of the wooden beam and also his estimate as to how long structural problem had existed. The trial judge stated in her decision at paras. g. While there was uncertainty about the timing of the broken concrete grade beam, Mr. Aubin testified that rotten triple-ply beam had been problem for over ten years. ... accepted the evidence of Mr. Aubin regarding his observations and his opinion regarding the seriousness of and the length of time that the structural problem had existed. While the concrete grade beam may not have been broken when Mr. Richardson looked over the five foot retaining wall, found that the triple-ply beam was rotten and observable as such. [14] In the classic case of R. v. Mohan, supra, the Supreme Court of Canada laid out the following requirements for the admission of expert evidence at page 20: Admission of expert evidence depends on the application of the following criteria: (a) relevance; (b) necessity in assisting the trier of fact; (c) the absence of any exclusionary rule; (d) properly qualified expert. At para. 25 the court also considered what constituted properly qualified expert: [25] Finally the evidence must be given by witness who is shown to have acquired special or peculiar knowledge through study or experience in respect of the matters on which he or she undertakes to testify. [16] I am satisfied from my review of the transcript beginning at pages 91 to 96, that Mr. Aubin had the necessary experience in respect to foundation and structural repair that he could give expert evidence as to not only the type of structural repair but also the need for structural repair. Notwithstanding counsel’s objection to Mr. Aubin’s ability to diagnose when structural repair occurred, once qualified as an expert in the area of foundations and structural repair, Mr. Aubin could testify as to the nature of the foundation’s problems, including the wooden beam. The cause of the failure of foundation is not such specialized field as to need expertise beyond that of someone who is experienced in investigating, diagnosing and repairing foundations. Mr. Aubin had many years of experience in doing so. This is not case such as that referred to in Rieger v. Burgess, supra, where evidence of special form of injury known as post-concussive syndrome was found to be beyond the expertise of general surgeon even though he had some additional courses in trauma and orthopaedic surgery. [17] It must also be noted that Mr. Aubin testified not only as an expert witness but also as the person who carried out the investigation and repair of the foundation, including the wooden beam. As such, he was entitled to give evidence as to what he saw and did. Clearly he could give evidence as to an observation that he found that the wooden beam was rotten. He referred to the beam as “extremely rotten”. (page 101, transcript). He stated that to be rotten to that extent, “we’re talking 20 years of exposure. There’s no doubt in my mind.” (page 107, transcript). There was no evidence that something had happened which could have caused the wooden beam to become rotten or to fail in the years between when the house was sold by the Richardsons to Hancock (2007) and the time that the damage was discovered (2010). [18] I am satisfied that Mr. Aubin was an expert who was properly qualified by virtue of his years of experience and that the trial judge was entitled to accept his evidence as to the state of the foundation and how long it had been in such a state. Accordingly, I dismiss this ground of appeal. Ground No. Did the trial judge conduct the trial in reasonable and just fashion? [19] Counsel for the Richardsons submitted that the trial judge failed to allow the Richardsons’ counsel to register objections and also that the trial judge gave assistance to Hancock throughout the trial. Counsel submitted that the trial judge’s actions were improper and gave rise to reasonable apprehension of bias. Counsel referred the court to the cases of Brophy v. Hutchinson, 2003 BCCA 21 (CanLII), 27 C.P.C. (5th) 14; Vasdev v. Décor Home Enterprises Ltd., 2012 BCSC 420 (CanLII), [2012] B.C.J. No. 572 (QL); James v. Canada (Minister of National Revenue M.N.R.) (2000), 266 N.R. 104, [2000] F.C.J. No. 2135 (QL) (F.C.A.); and Miglin v. Miglin, 2003 SCC 24 (CanLII), [2003] S.C.R. 303. [20] Counsel for the Richardsons referred to four instances which counsel submitted were indicative of the trial judge’s bias. They were as follows: (a) At page 44, beginning at line 25: MR. BURLINGHAM: address the Court, Your Honour, he’s getting into speculation here. THE COURT: I’m going to let him continue. Thank you. MR. BURLINGHAM: Your Honour. THE COURT: He’s only really saying what we’re all wondering. Who put it there. And I’m going to let him continue, Mr. Burlingham. MR. BURLINGHAM: But THE COURT: can sift out what is not evidence and what is. MR. BURLINGHAM: To just going forward, Your Honour, am permitted to make objections to the plaintiff’s testimony? THE COURT: Certainly. (b) At page 53, beginning at line 21: MR. BURLINGHAM: Yes, it’s all contentious. This is do object to the hearsay being entered here. Can just note for the record also, with the greatest respect, it the Court is asking Mr. Hancock an awful lot of questions and it seems to be ensuring that all of this evidence gets in with the maximum possible elaboration. confess have not have not been in trial before with self-represented litigant. This is new to me. haven’t done this before but this this seems like something need to object to which is that the court is leading to ensure every bit of the evidence making sure he gets in everything. THE COURT: think you’re incorrect about that. MR. BURLINGHAM: Thank you. THE COURT: indicated at the outset that would ask questions by way of clarification. MR. BURLINGHAM: But this is what it seemed like THE COURT: But your objection is noted. MR. BURLINGHAM: But just my objection to clarify to clarify my objection, it seems like the Court is doing the examination-in-chief here, not just clarification but that’s with the greatest respect and have not done this type of trial before. (c) At page 77, beginning at line 10: MR. BURLINGHAM: Just answer my question. You didn’t know how big the crack was. THE COURT: He is answering your question. MR. BURLINGHAM: With respect, Your Honour, this THE COURT: Answer the question, please, sir. MR. BURLINGHAM: Just can make my can make my point? THE COURT: No, he’s going to answer the question. MR. BURLINGHAM: Objection. THE COURT: You have tendency to interrupt him. want to hear him fully. MR. BURLINGHAM: want to make my objection about that THE COURT: You made your objection. Answer the question. MR. BURLINGHAM: haven’t yet. THE COURT: Mr. Burlingham, that’s enough. Answer the question. (d) At page 78, beginning at line 14: MR. BURLINGHAM: If could just say what was trying to say, Your Honour. THE COURT: No. Just move on. You’re being very argumentative. Move on, please. You’re not here to argue with the Court, you’re here to get the truth out. Just proceed with your cross-examination. MR. BURLINGHAM: do have an objection would like to state for the record. THE COURT: Move on, Mr. Burlingham. Move on. know what your objection is. Go forward. MR. BURLINGHAM: haven’t stated it yet. THE COURT: We’re adjourning until 2:00 p.m. [21] In Miglin v. Miglin, supra, the Supreme Court outlined the test when it is alleged that the trial judge was biased. At para. 26, the court stated: 26 The appropriate test for reasonable apprehension of bias is well established. The test, as cited by Abella J.A., is whether reasonable and informed person, with knowledge of all the relevant circumstances, viewing the matter realistically and practically, would conclude that the judge’s conduct gives rise to reasonable apprehension of bias: .... finding of real or perceived bias requires more than the allegation. The onus rests with the person who is alleging its existence .... As stated by Abella J.A., the assessment is difficult and requires careful and thorough examination of the proceeding. The record must be considered in its entirety to determine the cumulative effect of any transgressions or improprieties. We see no reason to interfere with the Court of Appeal’s assessment of the record, nor with its conclusion that although the trial judge’s comments were intemperate and his interventions at times impatient, they do not rise to the level necessary to establish reasonable apprehension of bias. [22] There is strong presumption of impartiality on the part of trial judge. In the case of Wewaykum Indian Band v. Canada, 2003 SCC 45 (CanLII), [2003] S.C.R. 259, at para. 59, the court stated: 59 ... As was noted by L’Heureux-Dubé J. and McLachlin J. (as she then was) in S. (R.D.), supra, at para. 32, the presumption of impartiality carries considerable weight, and the law should not carelessly evoke the possibility of bias in judge, whose authority depends upon that presumption. Thus, while the requirement of judicial impartiality is stringent one, the burden is on the party arguing for disqualification to establish that the circumstances justify finding that the judge must be disqualified. [23] In the case of Sloboda v. Sloboda, 2007 SKCA 15 (CanLII), [2007] W.W.R. 440, the Saskatchewan Court of Appeal also reviewed the law regarding trial unfairness in the civil context. At para. 54, the court stated: 54 ... It is clear from the case law that trial judges do not rest mute. They are entitled to, and must, seek appropriate clarification and give direction and, in certain cases, disclose tentative conclusions as means of ensuring proper understanding of the case. [24] It must be remembered that this was small claims proceeding and that Hancock was self-represented. The somewhat unique nature of small claims proceedings where often one or both of the parties are self-represented, was aptly described by Preston J. in the case of Garry v. Pohlmann, 2001 BCSC 1234 (CanLII), 12 C.P.C. (5th) 107 at para. 52 The frequency of the trial judge’s interventions and the tone that he adopted in some of his statements lead to some concern. However, the proper test is whether his conduct denied the defendant fair trial or gave rise to reasonable apprehension of bias as that term is defined at law. Those questions must be answered in the context of the facts of the particular case. In small claims cases when litigants are unrepresented some will require more direction than others; sometimes that direction will have to be more forceful than at others; some litigants will require more assistance than others. The decisions concerning the manner in which individual proceedings are conducted are best left to the trial judge. The questions for court on an appeal of this nature are questions of trial fairness and the reasonable apprehension of fair-minded persons concerning the impartiality of the tribunal. These questions are to be answered upon an examination of the proceedings as whole. [25] In my opinion the trial judge’s comments and interventions did not go beyond the nature of a legitimate attempt to ensure that all of the evidence regarding the matters at issue was before the court and was of sufficient clarity so that the trial judge could understand it. As Hancock was self-represented, more questions of him were required than may have been appropriate or necessary in traditional civil trial. However, in my opinion, the Richardsons have not met the high onus of establishing that reasonably informed person would have an apprehension of bias on the part of the trial judge or reasonable belief that they received an unfair trial, would therefore dismiss this ground of appeal. Ground No. Did the trial judge err in the calculation as to damages? [26] Counsel for the Richardsons submitted that notwithstanding that the trial judge only found that the wooden beam was rotten and observable as such, that she awarded damages for all of Hancock’s losses, including the cost of repair of the cement foundation. Counsel referred to para. 34 of the trial judge’s reasons for decision where she stated the following: ... While the concrete grade beam may not have been broken when Mr. Richardson looked over the five foot retaining wall, found that the triple-ply beam was rotten and observable as such. Mr. Richardson constructed new walls in the basement, covering the old wall left in place on the north wall. In doing so he concealed structural defect. [27] find counsel’s submission in this regard to have no basis. The cause of action in this case was one of negligent misrepresentation. The trial judge found that the Richardsons were aware of structural defect which they covered by retaining wall, thereby converting patent defect into latent defect. The trial judge made finding of both fraudulent and negligent misrepresentation and her findings in this regard have not been challenged. [28] In cases of fraudulent misrepresentation, the proper measure of damages is that amount of money required to put the plaintiff in the position that the plaintiff would have been occupied not if the statement had been true but if the statement had not been made. See S.M. Waddams, The Law of Damages, 2nd ed., looseleaf (Toronto: Canada Law Book, 2009) at 5-19, para. 5.460. [29] In this case, had the state of the foundation and/or the wooden beam not been covered by the interior wall built by the Richardsons, the defect in the foundation, which included not only the rotten wooden beam, but also the cracks in the foundation, could have been discovered by Hancock or by his property inspector. Hancock may then have elected not to proceed with the purchase contract or alternatively remedied the defect before the wall collapsed inward. There is no evidence that the amount of work done was not necessary to repair the damage done when the foundation caved in and water entered the basement. [30] In my opinion, the trial judge made no palpable and overriding error regarding the calculation of damages and I would therefore dismiss this ground of appeal as well. Conclusion [31] This appeal is dismissed with costs of the appeal to the respondent. J. N.G. GABRIELSON

The appellants appealed a small claims judgment. The judgment had found the appellants liable for damages after the respondent, who had purchased a house from the appellants, discovered that water was entering his basement. When the respondent investigated the source of the water, he removed the interior wall of the basement and discovered that there was a second wall behind the first one. He also discovered that a large chunk of the concrete footing and concrete grade beam were broken and had slid into the space between the interior basement wall. The respondent obtained a professional opinion that suggested that the problem had been there for a significant period of time and that the wooden beam that sat on the concrete grade beam was rotten and would have to be replaced. The respondent was awarded judgment in the amount of the repair. The appellant appealed on the basis that the trial judge should not have considered the respondent's expert's opinion about the age of the defect, that the trial judge had crossed a line in assisting the self-represented plaintiff at the trial and that the trial judge erred in calculating damages. HELD: The appeal was dismissed. The respondent's expert was qualified as an expert concerning foundation repair and had the necessary experience to give expert evidence on the type of structural repair and the need for structural repair. Once qualified as an expert in the area of foundations and structural repair, he could testify on the nature of the foundation's problems, including the wooden beam. The witness was also the person who actually carried out the repair to the foundation and was entitled to give evidence on what he saw and did. The witness was properly qualified by virtue of his years of experience and the trial judge was entitled to accept his evidence as to the state of the foundation and how long it had been in such a state. The trial judge's intervention and comments to the appellant's lawyer at the trial did not go beyond the nature of a legitimate attempt to ensure that all of the evidence regarding the matters at issue was before the Court with sufficient clarity to allow the trial judge to understand it. The cause of action in this case was negligent misrepresentation. The trial judge found that the appellants were aware of the structural defect and had covered it up. The proper measure of damages is the amount of money required to put the plaintiff in the position he would have occupied if the negligent misrepresentation had not been made. In this case, the judge made no palpable or overriding error in calculating damages at the amount it cost to fix the foundation.

d_2013skqb90.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2005 SKQB 454 Date: 2005 10 25 Docket: Q.B. No. 753/2004 Judicial Centre: Prince Albert BETWEEN: LANI RAE ROBERTS and 627089 SASKATCHEWAN LTD. carrying on business as “E MAUTO BROKERS 1999” and KELLY EISWERTH Counsel: John D. (Jack) Hillson for the plaintiff Ronald J. Mills, Q.C. for the defendants JUDGMENT KONKIN J. October 25, 2005 [1] In this action, which is under the simplified procedure rules, the plaintiff seeks damages in the amount of $50,000 plus interest in accordance with the provisions of The Pre-judgment Interest Act, S.S. 1984-85-86, c. P-22.2. The claim is based on the allegation by the plaintiff that she loaned some $69,000 to the defendant Kelly Eiswerth on or about the 30th day of January 2001. The claim goes on to say that the defendants agreed to repay the loan in the amount of $1,500 per month, that some payments were made, but in the end, an amount of approximately $61,000 was still outstanding. The defendants deny that this transaction was loan to the individual Kelly Eiswerth, and argue that in fact it was an investment by the plaintiff and her then husband Ken Eiswerth into the auto brokering business known as Auto Brokers 1999 (“E M”), which was registered business name of the defendant company 627089 Saskatchewan Ltd. [2] summary trial was ordered in this issue on May 3, 2005. [3] The two issues in this case are as follows: 1. Was the advance made by the plaintiff loan to the defendant, Kelly Eiswerth, and/or his company 627089 Saskatchewan Ltd. carrying on business as M, or was that advance an investment by the plaintiff into that auto broker business? 2. If the advance was loan, how much is outstanding and by whom? [4] The plaintiff was married to Ken Eiswerth in 1989 and they remained married until their divorce in November 2004. Ken Eiswerth is the father of the defendant Kelly Eiswerth. [5] During the time that Ken and the plaintiff were married, the plaintiff received substantial amount of money from her father’s estate. This money was deposited into bank account in her sole name at branch of TD Canada Trust. In addition to the money from her father’s estate, the plaintiff also deposited the proceeds of the sale of the acreage that she and Ken had owned. The two of them purchased another house using some of the proceeds that flowed through her account. It appears that one of the reasons that the proceeds of the sale of the acreage were deposited into an account in her sole name was that her husband Ken was experiencing financial difficulties at the time. [6] From this account were made number of major financial transactions. These included: (a) $225,000 was deposited on or about the 8th day of September 2000; (b) $10,000 was withdrawn to pay joint debts of Ken and the plaintiff on or about September 8, 2000; (c) $175,000 was withdrawn by the plaintiff and invested in term deposit in September of 2000; (d) $38,000 was withdrawn for deposit on the new home for Ken and the plaintiff on September 26, 2000; (e) $76,000 was deposited in mid-October as the proceeds of the sale of Ken and the plaintiff’s acreage; (f) $69,550 was withdrawn as bank draft payable to Okanagan RV which was her first involvement with funds on behalf of M; (g) $69,550 was deposited into the account as payment from M; (h) $69,000 was withdrawn by cheque, which cheque was given to M; (i) number of other deposits from M, and at least one cheque payable to M, were made using this account. Various copies of bank statements with the plaintiff’s handwriting on them identified many of these transactions. [7] was business name registered by the defendant 627089 Saskatchewan Ltd. obtained licence to operate as motor dealer in November of 1999. The evidence of the plaintiff was that she helped the defendant Kelly Eiswerth obtain this registration. The copy of the licence tendered as an exhibit to the affidavit of Gail Giese shows that the registrant is in fact 627089 Saskatchewan Ltd. doing business as M. [8] The evidence at trial also was that the plaintiff and Ken Eiswerth operated another business through corporate entity. The plaintiff testified that she was familiar with the use of numbered company for the operation of business. [9] The first financial transaction between the plaintiff and was the purchase of motorhome by from an RV dealership in British Columbia. For that transaction, the plaintiff sent bank draft of $69,550 directly to Okanagan RV on behalf of M. The evidence was that shortly after that vehicle was purchased, it was sold and all of the money plus some profit or expenses were paid back to the plaintiff on or about the 30th day of January 2001. [10] The evidence of the plaintiff was that very shortly after being repaid, she wrote cheque for $69,000 to M. The cheque was not in evidence, but she stated that she wrote it to after discussion with her husband. The plaintiff also stated that the defendant Kelly Eiswerth had not requested this money and that she had decided on her own how much to advance. Her evidence was that her husband had said that they should invest some more money into Kelly’s business so that he could buy more vehicles. [11] From the time of this advance to until the commencing of this claim, various amounts were paid by to the plaintiff in denominations as little as $750 and as much as $3,000, and there were other transactions between M, the plaintiff and her husband Ken. Some of these other transactions included the repurchase by of Ken’s dump truck from the trustee in bankruptcy, and the “gift” of that dump truck to Ken, transaction where piece of equipment was bought by the plaintiff from and immediately resold at profit, and the purchase of other vehicles by the plaintiff from M. [12] The evidence was that there were no written contracts or other written evidence of any agreement between the plaintiff, the defendant Kelly Eiswerth, and/or the numbered company defendant evidencing the nature of this transaction. [13] There was no evidence of any direct payment from the plaintiff to the defendant Kelly Eiswerth. [14] The numbered company which had registered the name no longer carries on business. [15] The defendant Kelly Eiswerth is in similar business in the City of Prince Albert run by corporation called Tru-North RV, Auto Marine Sales Inc. The defendant Kelly Eiswerth is shareholder and director of this corporation. There is no evidence that this corporation is successor to the defendant numbered company by amalgamation or otherwise. ISSUE NO. Nature of the Payment by the Plaintiff [16] It is clear that the plaintiff advanced an amount of $69,000 to M. It is also clear that was registered business name of the defendant 627089 Saskatchewan Ltd. and that the plaintiff helped the numbered company register as motor dealer with Saskatchewan Justice. It is also clear that there were subsequent transactions between the plaintiff and M, payments made by and at least one transaction where the plaintiff issued further cheque of an amount in excess of $9,000 to for the purchase of another vehicle. There is the evidence of the plaintiff in cross-examination that after discussions with her husband Ken, it was felt that they should invest the $69,000 in Kelly’s business so that the business could buy more vehicles. There is evidence from the plaintiff that she felt she received profit from the first transaction. There is evidence that while in excess of $60,000 was owing by to the plaintiff, she chose to pay for another vehicle instead of deducting that amount from what was owed. There is also evidence that she categorized some of the payments from as “commission”. There is evidence that and/or Kelly benefitted the plaintiff and/or her husband by repurchasing equipment that the husband had lost to the trustee in bankruptcy and gifting it back to the husband. [17] The foregoing evidence weighs against the finding that this transaction was loan to the defendant Kelly Eiswerth. [18] In fact the only evidence that might suggest that this transaction was a loan to either of the defendants was that some of the payments made by E & M to the plaintiff were in the amount of $1,500, the amount that the plaintiff asserts was the monthly amount to be repaid by E & M for the loan. However, there was no evidence in the affidavit material of the plaintiff as to when the agreement to pay $1,500 per month was made and in her testimony, the plaintiff stated that when the decision was made to pay the $69,000 to the business, she did not have a discussion with the plaintiff Kelly Eiswerth about it. The only discussion she appears to have had was with her husband Ken, after which she wrote cheque to M. [19] On the basis of the materials filed and the evidence in the cross-examination held, find that the plaintiff has not proven that the monies advanced were loan to Kelly Eiswerth and/or the numbered company 627089 Saskatchewan Ltd. carrying on business as M. The claim on Issue No. fails. [20] As that claim fails, Issue No. becomes moot. [21] The defendant Kelly Eiswerth shall have his taxable costs on this action. J. D.B. KONKIN

The plaintiff sues the defendants for $50,000 plus interest. The claim is based on the allegation that the plaintiff loaned the defendant Kelly $69,000. The plaintiff claims the defendants agreed to repay the loan in the amount of $1,500 per month. HELD: The plaintiff's claim is dismissed. The only evidence that might suggest that this transaction was a loan to either of the defendants was that some of the payments made by the defendant to the plaintiff were in the amount of $1,500, the amount that the plaintiff asserts was the monthly amount to be repaid by the defendant for the loan. However, there was no evidence as to when the agreement to pay $1,500 was made. In her testimony, the plaintiff stated that when the decision was made to pay the $69,000 to the business, she did not have a discussion with the defendant, Kelly. The only discussion she seems to have had was with her husband after which she wrote a cheque to the defendant.

d_2005skqb454.txt

PROVINCIAL COURT OF SASKATCHEWAN PRINCE ALBERT IN THE MATTER OF INFORMATION #40150930 HER MAJESTY THE QUEEN G.G.H. S.C. Carter, P.C.J M. Friesen, CROWN PROSECUTORS, Prince Albert, SK. FOR THE CROWN. E.B. Stephens, STEPHENS, ARNOT LAW OFFICE, Prince Albert, SK. FOR THE DEFENCE. 1. The accused is charged with offences contrary to Sections 271(1) and 153 of the Criminal Code. The sexual assault and touching allegations allegedly occurred between January 15, 1998 and March 31, 1999. 2. The evidence of the complainant was that the accused touched her numerous times on her vagina and breasts. In all cases the touching was over top of her clothing. On one occasion she said that he “grabbed my butt”. 3. The complainant, her mother, her siblings and the accused all lived in house here in Prince Albert, Saskatchewan. The complainant’s bedroom was in the basement of the house adjacent to the room where the family watched TV. There was couch or love-seat in that room. The accused often slept on this couch. Sometimes he slept down there because he was angry with the complainant’s mother for not wanting to have sex with him. Sometimes he slept down there because of her tossing and turning in bed due to her arthritic pain. E.V., the complainant’s mother, said that the accused slept downstairs about two-thirds of the time. 4. The complainant, who was between the ages of 13 and 15 during the time frame in the Information, went to bed very late. Indeed, her mother testified that she often stayed up at least until midnight. The complainant often sat and watched television at night. Most of the allegations occurred in this room. 5. The complainant testified that the accused constantly came up to her, from behind, or in front, or sat beside her and touched her breasts or vagina. She said that he would even grope at her in this way when she was coming to and from her bedroom. He would accompany this conduct with statements concerning how sexy her legs were and how good she would be in bed. She would tell him to stop touching her and he would then stop but day or two later he would start at her again. He always used one hand. The touching was always over the top of her clothes. The touching only lasted seconds each time ending as soon as she said stop. All of this began after her brother, [E.] was born in October of 1997. 6. She recalled specific incidents of touching. In September 1998, she said that the accused got on top of her while she was on the couch watching television. He talked of her legs and how good she would be in bed. She threatened to scream (which would have alerted her mother) and the accused got off. After this incident she recalled the accused sitting down beside her as she was watching TV. He asked her to touch his private parts. She told him to go away. 7. She also recalled an incident in the kitchen her mother was out of the house and she was trying to make some lunch. She testified that the accused came over and “grabbed my butt”. She told him to stop and he did. 8. In March of 1999, the complainant called the police. She testified that the accused had become coming into her bedroom while she slept. She said that she woke up feeling him touching her vagina over top of her clothes. As soon as she woke up the accused “ran from the room as fast as he could”. She testified that this happened more than once. 9. No threats were ever made by the accused toward the complainant although she testified that at one time, after he and her mother had had an argument, he threatened to leave and take her baby brother, [E.] with him. That is the reason which she gave to the court for never saying anything about any of this to her mother. 10. The complainant’s mother, E.V., testified that she met the accused in May of 1996. Prior to this she had been recovering from an abusive relationship with her ex-husband. The court learned that when she first met the accused the children, including the complainant, did not live with her visiting only on the weekends. The accused began to live with her and he helped her to stabilize her life and home enough to allow the children to come back and live with her. She said that the accused tried to help her out with the children like step-father would do. He spent time with them. He also did laundry and housework. He backed her up in her disciplining of the children. At times he would work himself up by yelling at the children. On these occasions she said that she feared that he might start hitting them but he never did. 11. E.V. became pregnant. She gave birth to [E.]. She recalled coming home with the little baby on October 29 or 30 of 1997 to find the accused had been drinking for two days celebrating the birth of his son. The complainant began to laugh at the accused’s drunken stumbling. The accused then lunged at her and said “give me blow job”. E.V. became upset at this. She sent her daughter to bed. The next morning she told the accused that if he ever said anything like that again she would kick him out. The accused “looked kind of shocked”. 12. E.V. said that after this, her daughter’s behaviour and demeanor began to change. She began to complain of headaches. She had been an honour student but her grades began to fall and kept falling. By the end of the school year, June 1998, she had just barely scraped by. By next fall, now in grade 8, she constantly complained of being sick. She quit school altogether and didn’t return until she called the police in March 1999. 13. During this period of time, E.V. said that her daughter also became very self-conscious of her body. She wore only dark clothes and always covered herself up. She took to wearing t-shirt over her one-piece bathing suit. She became withdrawn and depressed. 14. At one point she said that her daughter pulled knife on E.V.’s best friend’s son. After this event, E.V. got medical help for her. psychiatrist placed her on anti-depressants which helped control her anger. Throughout all of this, E.V. said that she never had any concerns about the accused and his behaviour toward her daughter. He would often walk into her bedroom without knocking but he did that to other children as well. Although he was severely drunk as related above, she could only recall only one other time when he was that drunk. In fact, she said that it was rare for him to be drunk. Alcohol was not problem. It was only after the complainant called the police that the accused spoke to her about “provocative” behaviour on the part of the complainant. Her daughter never said anything to her. 15. The accused testified that he only touched the complainant’s buttocks once when she was reaching for something above the stove and began to fall. He said that he touched her breasts once when he took [E.] out of her arms against her wishes. He said that he fell on her once when she was lying on the couch. He said that he fell because he tripped over her younger sister, [P.], who was lying on the floor. He denied ever touching the complainant on her vaginal area or ever inviting her to touch him. 16. The accused testified that on few occasions the complainant “mischievously flaunted” herself in front of him. The first time that this happened was in 1996. E.V. was living in an apartment. The children were over for the weekend. They were all watching the movie “Raiders of the Lost Arc”. The complainant bent her legs up to her chest exposing her genitals. The second time was in 1998. The complainant had had shower upstairs. She came downstairs wrapped only in towel whereupon he said that she began to expose herself to him. 17. He went on to testify that on four occasions (July, September, October of 1998 and January of 1999) the complainant opened the bathroom door and watched as he took shower. He said that he told E.V. about this and told her to talk to her kids about what is right and wrong. 18. He said that there were also four occasions when the complainant walked into the bedroom and watched him and E.V. as they were having sex. Once he and E.V. were lying naked on the bed having just finished having sex and she walked right in. He had to throw her out of the bedroom. He recalled E.V. and the complainant struggling in the bedroom because the complainant refused to leave. The struggle took place in March of 1999. 19. As to his reasons for being in the bedroom, he said that he had to go in in order to collect dishes, plates and cups and that the reason he ran out of her bedroom was because he was chasing kittens. He insisted that he always knocked and said “I want your dishes”. 20. Deciding upon guilt or innocence in criminal case is not matter of choosing whom to believe based upon who appears to be most likely telling the truth. If an accused is to be found guilty it must because the trier of fact has been convinced beyond reasonable doubt of his guilt. Even when an accused’s testimony is not believed, he still must be acquitted if his evidence raises reasonable doubt or if the remaining evidence raises such doubt. Thus although the complainant and E.V.’s demeanour in the witness box, their careful, concise and clear answers were in some contrast to the accused’s must look to the evidence to determine if there is evidence which confirms or tends to confirm her testimony: see R.v. S.(T) 1995 CanLII 3957 (SK CA), [1995] 40 C.R. (4th) (Sask. C.A.). The following evidence tends to confirm the complainant’s testimony: 21. Clearly the accused had an opportunity. He often slept on the couch in the basement television room. Most of the incidents complained of happened in that room. 22. The accused also had the time in the sense that the complainant went to bed late in the evening or in the early morning hours at time when most of the household would be asleep. 23. The accused admitted that he came into her room (he said he thought she was awake) and ran out. He said that he was chasing kittens. That explanation sounded too contrived. No one had mentioned cats or kittens before although the accused did say that one of his jobs in the home was to clean up “dog shit”. 24. The accused said that he tried to or did tell E.V. about the “mischievous flaunting” and the shower-watching, but that she said that she was too tired or stressed out to deal with it. This does not accord with both the evidence of both E.V. and the accused about the drunken “blow job” request. She took that matter seriously and told the accused that he would be out on the street if it ever happened again. She would have taken any flaunting or shower-watching seriously as well in my view. The following evidence would have confirmed the complainant’s evidence if it had been supported by expert testimony: 25. The complainant’s evidence shows an escalating pattern of intrusive behaviour by the accused. When the behaviour finally escalated to groping at her in the bedroom while she was sleeping, she called the police. 26. Escalation of this type of activity is, as recall, characteristic “grooming” behaviour on the part of the sexual predators. However, do not believe that am entitled to take judicial notice of this. An expert witness in the area of sexual behaviour would have been extremely helpful to the court. 27. Similarly there is evidence of the complainant’s depression or withdrawal. Her sliding school performance, anger and self consciousness. This could very well have been because of the escalating assaults by the accused. However, another explanation may be her passage through puberty into society, that at least for girls, seems to put greater emphasis on body image as opposed to brains. An expert in the field of adolescent behaviour may have been of great assistance to the court here as well. The following evidence either does not confirm the complainant’s evidence or is capable of confirming the accused’s evidence: 28. The accused admits to touching her buttocks once, her breasts once, and to have been on top of her once. He has explanations for each of these incidents. One is that he fell on her. This seems bit far-fetched but am not prepared to say that it did not happen. The other explanations are not outlandish. They might be true. The “blow job” request obviously happened but none of the allegations concerned oral sex and in any event the accused was drunk. He was apparently rarely drunk. None of the complainant’s allegations involve alcohol nor was drunkenness alleged to be factor. 29. The absence of any complaint by the complainant to her mother might be consistent with her fear that the accused would leave and take the baby with him but the lack of complaint is also consistent with the accused’s innocence. 30. The “knife pulling” incident which resulted in anti-depressants for anger control cuts both ways when considered in conjunction with the alleged struggles in the bedroom. Perhaps his behaviour drove her to lose her temper. Perhaps her temper and dislike of the accused drove her to allege the behaviour against person whom she said she did not like and who she did not want living at the house. 31. In my view it would be very dangerous to convict the accused on the evidence before the court. Although his explanations for touching and his evidence of the complainant’s behaviour are at odds with the Crown’s evidence, there is simply not enough confirmatory evidence surrounding the allegations for there to be proof of guilt beyond a reasonable doubt. Although I am suspicious of his evidence I have compared and contrasted it with that of the Crown’s and, having done so, I am unable to find him guilty beyond a reasonable doubt. 32. The accused is, therefore, not guilty of either count on the Information. DATED this 20th day of December, A.D., 1999, at the City of Prince Albert, in the Province of Saskatchewan. S.C. Carter, Provincial Court Judge

The accused was charged with sexual assault and touching contrary to s.271(1) and 153 of the Criminal Code. The alleged offences occurred in the complainant's home when she was between the ages of 13 and 15. HELD: The accused was found not guilty on both counts. 1)There was insufficient confirmatory evidence for proof of guilt beyond a reasonable doubt. The evidence showed an escalating pattern of intrusive behaviour by the accused who admitted to touching her on two occasions and to have been on top of her once. His explanation that he fell on her was farfetched but the other explanations were not outlandish. None of the complainant's allegations involved alcohol nor was drunkenness alleged to be a factor. The evidence of the complainant's depression or withdrawal could have other explanations.

1999canlii12427.txt

J. Dated: 19990216 THE COURT OF APPEAL FOR SASKATCHEWAN ENDORSEMENT APPELLANT: McQUEEN AGENCIES LTD. RESPONDENT: LAWRENCE RONALD WARKEN COUNSEL: Ms. Catherine Sloan for the Appellant Mr. Kim M. Ford for the Respondent APPEAL HEARD: February 12, 1999 CORAM: The Honourable Chief Justice Bayda The Honourable Mr. Justice Tallis The Honourable Mr. Justice Sherstobitoff THE COURT [1] In this action brought by the respondent/plaintiff on a hail insurance contract for the 1996 crop year, the appellant, McQueen Agencies Ltd., appeals from an order entered in Queen’s Bench on October 15, 1998. This order dismissed the appellant’s motion for summary judgment on its counterclaim for insurance premiums payable by the plaintiff under the hailinsurance contract in question. The appellant’s motion for dismissal of the plaintiff’s action was also denied. [2] Although the appellant contends that the plaintiff’s claim is fixed at $3,373.50, being the amount of an appraisal award, the respondent/plaintiff challenges the validity of this appraisal award purporting to be made under The Saskatchewan Insurance Act and the statutory conditions that govern such appraisals.[1] [3] We agree that this appeal should be allowed in part. The respondent/plaintiff has no defence to the appellant’s counterclaim for premiums payable under the hail insurance contract. Although the respondent signed promissory note and tendered cheque for $10,870.00 payable on September 30, 1996, he stopped payment of the same with claim of set-off being advanced. [4] In the circumstances, we must treat the counterclaim as an independent action. There has been significant delay in these proceedings and it will probably be many months or longer before the plaintiff’s action is tried. The appellant, having satisfied the criteria in Bombardier Credit Ltd. v. Kostuchuk et al., 1994 CanLII 3870 (SK CA), [1994] 10 W.W.R. 257; 123 Sask. R. 89; 74 W.A.C. 89 (C.A.) at 272-273 and Winfield Developments Ltd. v. Banton Industries Ltd. (1996), 1996 CanLII 4931 (SK CA), 141 Sask. R. 21; 114 W.A.C. 21, is entitled to judgment for $10,870.00 with interest at the rate of 10%, as stipulated in the promissory note, together with costs in Queen Bench on the applicable tariff and costs in this Court on single column 5. Since the respondent/plaintiff has not accepted the amount tendered in payment of the appraisal award, the appellant’s prayer for relief in its motion is amended to claim the full amount of the premiums payable. [5] This summary judgment, under Rule 129, is granted without prejudice to the plaintiff’s right to proceed with his action for an alleged loss of $38,585.00. However, there are number of “housekeeping” items that must be addressed in order to facilitate the orderly disposition of the action. The pleadings must be put in order. With that in mind, we grant the appellant leave to amend its statement of defence to the plaintiff’s claim by pleading the relevant statutory conditions in The Saskatchewan Insurance Act, together with any additional material facts pertaining to that defence. As well, the appellant has leave to plead to any new matters raised in the respondent’s amended statement of claim. [2] [6] The respondent/plaintiff is granted leave to reply, if so advised, to the appellant’s amended statement of defence. [7] Leave is also granted to each party to re-open the examinations for discovery for the purpose of examining on the new issues raised by any such amendments. [8] In giving these directions we are not to be taken as passing on the admissibility of evidence or other legal issues pertaining to the matters raised in the amended pleadings. Since such matters are for the trial judge, it would be premature for this court to make any further comment. DATED at the City of Regina, in the Province of Saskatchewan, this 16th day of February 1999. [1] See appeal book page 96a, paragraph [8], of the reasons of chambers judge’s reasons. [2] See appeal book page 90a

The insurer appealed the October 1998 order which dismissed the appellant's motion for dismissal of the insured's action and for summary judgment on its counterclaim for insurance premiums payable under the hail insurance contract. The insured had signed a promissory note and tendered a cheque payable in September 1996 but stopped payment and advanced a claim of set-off. HELD: The appeal was allowed in part under Rule 129 without prejudice to the plaintiff's right to proceed for the alleged loss of $38,585. 1)The appellant was granted leave to amend its statement of defence by pleading the relevant statutory conditions in the Saskatchewan Insurance Act and any additional material facts and new matters raised by the amended statement of claim. The plaintiff was granted leave to reply. Each party was permitted to re-open the examinations for discovery. 2)The insured had no defence to the counterclaim for premiums which was a separate action. The prayer for relief was amended to claim the full amount of the premiums which were payable with interest at the rate of 10% as stipulated in the promissory note together with costs on the applicable tariff in Queen's Bench and in the Court of Appeal on single column 5.

c_1999canlii12244.txt

Defendant 1991 S.H. 78014 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: DEVELOPMENTS LIMITED, body corporate and H.C. DELANO, Registrar of Condominiums Respondent HEARD BEFORE: The Honourable Mr. Justice Hilroy Nathanson, in Chambers, at Halifax, Nova Scotia on June 26, 1991 DATE OF DECISION: June 26, 1991 (Oral) COUNSEL: D. Coles, Esq., for the applicant J. Davies, Esq., for the respondent 1991 S.H. 78014 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: DEVELOPMENTS LIMITED, body corporate and H. C. DELANO, Registrar of Condominiums Registrar NATHANSON, J.: (Orally) The applicant is the owner of certain lands concerning which he has informed the Registrar of Condominiums of his intention to seek registration pursuant to the Condominium Property Act, R.S.N.S. 1989, c.85. The land is subject to a right‑of‑way in favor of all landholders out of the original undivided piece of land. The structure sought to be registered as a condominium has been completed and does not physically encroach upon the right‑of‑way. An adjacent owner with rights over the right‑of‑way refuses to consent to the registration. The Registrar of Condominiums has advised the Applicant that s.11(b) of the Act prohibits him from registering declaration with respect to the property, such declaration being condition precedent to the operation of the Act, unless the owners of the right‑of‑way consent to the declaration. The Applicant has not formally applied to the Registrar of Condominiums for registration. The applicant is seeking an order in the nature of mandamus directing the Registrar to accept the applicant's property for registration under the Act without a declaration of consent from the users of the right‑of‑way or, in the alternative, a declaration that such consent is not required by that section of the Act. Dealing first with the procedural aspects and the availability of mandamus, there must be duty whose performance it is sought to coerce actually do, and that does not exist here. There is no such duty on the Registrar of Condominiums. The application has not been formalized and such duty would not arise until the application has been made and formalized. So mandamus is not available. declaration is available. is remedy for use where an individual wishes to establish the existence or scope of public duty. cannot see any reason here why the Court cannot declare what the scope of the duty of the Registrar of Condominiums is, in circumstances such as the present. So, the Court is prepared, if the facts are with the applicant, to grant declaration. The principal issue comes down to whether the right‑of‑way is registered encumbrance, for which consent must be obtained, pursuant to s. 11(b) of the Condominium Property Act. think that issue can be decided very quickly and very simply. The Act contains statutory interpretation or meaning of the word "encumbrance". It is set out in s. (1)(0), as follows: "In this Act, encumbrance means claim that secures the payment of money or the performance of any other obligation, and includes mortgage or lien." The Legislature hints what it means by "encumbrance" in giving us the examples of a mortgage and a lien. It does not allow broad meaning, but restricts us to the meaning as set out. That meaning requires claim that secures the payment of money or secures the performance of any obligation. It is the security feature that governs. is security that is the principal characteristic of mortgage and lien. would put into the same category debenture that secures charge against land, and might go so far as to include in that category certain types of leases. But there is no security aspect to a right‑of‑way and, therefore, a right‑of‑way is not an encumbrance as defined in s. 3(1)(o) of the Act. have been referred to the case of Equities Limited v. Courtyard Green Developments Limited et al (1985) 68 N.S.R. (2d), 72, decision of Chief Justice Glube. In that decision, there are two interesting sentences, on page 77, as follows: "I am unable to find that would have any right to insist that the Registrar requires their consent. find there was no requirement that execute the declaration and consent to the use of the property as condominium." The words quoted may very well be obiter, that is, not the basis of the decision, but they are strongly worded findings of the Court and are not to be disregarded. The decision is not, strictly speaking, binding on me, but it is extremely persuasive and happen to agree with those comments of the Chief Justice. The implication of Chief Justice Glube's words is that person who has right‑of‑way over servient tenement which becomes condominium is not required to execute the declaration and consent that are required by the Act. In the result, the Court is prepared to issue a declaration in favor of the applicant and pointing out to the Registrar of Condominiums that consent is not required of users of rights‑of‑way over servient tenements. The applicant will have its costs of this application in the amount of Seven Hundred and Fifty Dollars ($750.00). J. Halifax, Nova Scotia June 26, 1991 1991 S.H. 78014 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: DEVELOPMENTS LIMITED, body corporate and H. C. DELANO, Registrar of Condominiums

The applicant landowner sought to register a declaration with the respondent respecting a condominium property, which was subject to a right of way in favour of all the original landowners. An adjacent landowner refused to consent to the declaration. The applicant sought a declaration that the consent of the adjacent landowner was not required. Granting the application, that the word 'encumbrance' as defined in s.3(1)(o) of the Act involves a security feature and as there is no security feature to a right of way, unlike a mortgage or lien, it is not an encumbrance. The consent of the adjacent landowner, who had a right of way over a servient tenement, was not required.

b_1991canlii4243.txt

Q.B.C.R.N.J. No. 3147 J.C. M.J. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF MOOSE JAW BETWEEN: HER MAJESTY THE QUEEN and ACHIEL VAN DE WIELE Walter A. Wall for the Crown Michael Megaw for the accused JUDGMENT SCHEIBEL J. September 25, 1996 [1] The accused has been convicted of sexual assault. [2] The Crown, in seeking sentence of 1/2 to years, categorizes this offence as rape. They indicate there was no prior romantic connection between the victim and the accused, and that she pleaded with him not to do this. The Crown point out the victim suffered bruising and soreness from the incident. [3] The Crown submit that the victim incurred the displeasure of the community and lost her job because the community chose the accused's interest over hers. In addition, the Crown states the victim was harassed and had her property damaged and was forced to go for counselling. [4] The accused claims the victim lost her job because of her inability to satisfactorily perform her duties and that it had nothing to do with the sexual assault. They state the property damage and vandalism has no connection to this case. In any event, the defence claims the Crown has failed to prove this assertion. [5] The accused refers to the new sections in the Criminal Code with respect to alternative measures of sentencing and requests that he be given a non-custodial sentence. [6] Section 718.1 of the Criminal Code reaffirms the principle that sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [7] Section 718.2 states the sentence passed must also take into consideration that sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. [8] The Criminal Code goes on to say that sentence for similar offences committed in similar circumstances. In series of decisions, the Saskatchewan Court of Appeal have stated that there is three year threshold sentence for sexual assault where there is penetration. The sentence is to be increased or decreased from the three year term based on the circumstances of the individual case. [9] However, s. 718.2(d) of the Criminal Code provides that an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances. In addition, the Criminal Code states that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders. [10] Prior to these new provisions being enacted the Saskatchewan Court of Appeal held in R. v. Roberts (1995), 1995 CanLII 3924 (SK CA), 128 Sask.R. 158, that where there was sexual assault with no proof of actual penetration, electronic monitoring was not an option. In that case the Court of Appeal held that electronic monitoring is permitted only in cases involving offences which are non-violent and do not carry the presumption of incarceration. This principle was also advanced in R. v. McLeod (R.G.) (1992), 1992 CanLII 8279 (SK CA), 109 Sask.R. 8; 42 W.A.C. 8; 81 C.C.c.(3d) 83 (C.A.). [11] It is necessary to consider whether the new provisions of the Criminal Code change the established range of sentences for sexual assault. [12] All sexual assaults are serious crimes of violence and as such must be strongly denounced by the Court. sentence other than custodial term for this type of sexual assault would not meet the fundamental principle referred to in s. 718.1, that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [13] Nor would non-custodial sentence, in case such as this, meet the general principle of sentencing established over the years for such crimes. [14] This case arose in small town and virtually the entire community has lined up in support of either the victim or the accused. Those in support of the accused feel the accused should not be incarcerated. Those in support of the victim feel long term of imprisonment is justified. [15] It is clear that any sentence imposed will be viewed by one side or the other as too lenient or excessively high. [16] It is my duty to pass sentence that reflects the seriousness of the offence, that punishes the accused for his actions, that will deter the accused and others from committing such offences and one that will protect the public and maintain the public's confidence in the administration of justice. In addition, must pass sentence that is conducive to the rehabilitation of the offender and one that does not seek vengeance. [17] The accused is 58 years old. He has no prior criminal record. Until this event he appears to have led an exemplary life. Clearly alcohol was not only the major factor in the commission of this offence, but am satisfied the offence would not have occurred if the accused had not been drinking. Even though have concluded there was no actual penetration, nevertheless this was serious sexual assault. [18] The actions of the accused are totally out of repeated. Since the incident, the accused has abstained from alcohol and states he will never consume it again. The accused, in his address to the Court, gave serious heart- wrenching apology for his actions. He apologized to the victim, to his family and to the Court for his actions. He is deeply sorry for his involvement. [19] He is currently under doctors care and taking medication. His actions have affected him so gravely that he is on the verge of nervous breakdown. am firmly of the view that the accused will never re-offend in the future. [20] On the other hand, I cannot ignore the impact upon the victim. In addition to the assault she has lost her job in the community and is ostracized in the town. She is also currently on medication as result of this incident and is taking counselling. This offence has had grave consequences for her because some people appear to treat her as the offender rather than the victim. [21] This incident has been tragic for both parties, however, must not loose sight of the fact that it was the punished accordingly. [22] In the absence of mitigating factors, sentence in the range of three years would be just and fair. The following factors lead me to the conclusion that a lower sentence is justified in this case. 1. The accused has no prior criminal record; 2. This offence was motivated by alcohol and the accused has, since the incident, voluntarily quit using alcohol; 3. The accused was a model citizen until this offence; 4. The accused immediately removed his finger from the victim's vagina when she asked him not to do this and did not pursue the assault; 5. There was no penile penetration; 6. The accused has publicly apologized to the victim and to the Court for his actions and is genuinely filled with 7. The accused will loose his job as result of this incident; 8. The accused is suffering from serious health problems; 9. There is virtually no chance that the accused will ever commit another criminal offence; 10.A lengthy sentence will seriously affect the accused's ability to rehabilitate. [23] Taking all of the factors of sentencing into account, it is the sentence of this Court that you serve a term of 18 months in a provincial correctional centre. [24] Having imposed a custodial sentence of less than two years, I must now deal with s. 742.1 of the Criminal Code which permits the court to allow the accused to serve his term in the community. This section has just recently come into force. am not aware of any judicial cases applying this section in sexual assault cases. Indeed, electronic therefore I am of the view that given the seriousness of the offence, it would be contrary to the administration of justice to permit the accused to serve the sentence in the community even though the accused appears to meet the requirements of s. 742.1(a) and (b) of the Criminal Code. am left with no alternative. Therefore, the sentence must be served in a provincial correctional centre. [25] In addition, pursuant to the mandatory terms of s. 100 of the Criminal Code, the accused is prohibited from having any fire arms, ammunition or explosive substances for period of ten years from his release from prison.

The accused, convicted of sexual assault, requested a non-custodial sentence pursuant to s742.1 of the Criminal Code. HELD: The accused was sentenced to 18 months in a provincial correctional institution. 1)It would be contrary to the administration of justice in view of the seriousness of the offence to allow the accused to serve his sentence within the community even though he appeared to satisfy the requirements of s.742.1(a) and (b) of the Code. There were numerous adverse impacts on the victim. 2)Mitigating circumstances included the absence of a criminal record; his abstinence from alcohol since the assault; the absence of penile penetration; his remorse and apology to the victim and to the court; his serious health problems; his ability to rehabilitate and the fact that he was a model citizen prior to the assault.

b_1996canlii5100.txt

1992 C.H. 80004 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: GERALD ARTHUR CHABOT V. HER MAJESTY THE QUEEN HEARD: before the Honourable Justice F. B. William Kelly, Supreme Court of Nova Scotia, March 23, 1993. DECISION: March 23, 1993 RELEASED: July 6, 1993 COUNSEL: J. Scott D. Grant KELLY, J. (Orally) On the night of June 21, 1991, Corporal Matthews of the Dartmouth Police was conducting plain‑clothes surveillance of certain building in Dartmouth, Nova Scotia, as directed by his Police Chief who had based the instruction upon complaints that the place was operating as an "after‑hours" club. Surveillance had also been conducted by other persons prior to that time and the results were brought to the attention of Corporal Matthews. The essence of the observations were that number of people were entering and leaving the dub at late hours and were believed to be under the influence of alcohol. At about 11:40 p.m. on June 21, 1991, Corporal Matthews observed the accused Mr. Gerald Chabot and his wife enter these premises. About an hour and half later, at approximately 1:00 a.m. the following morning, Corporal Matthews noted the couple leaving the premises and Mr.Chabot driving off with his wife in their vehicle. Corporal Matthews then radioed two other police officers to stop the Chabot vehicle. He advised the court that it was his intention to seek information to be used in an attempt to obtain search warrant of the suspected after‑hours club for possible Liquor Control Act violations. Neither Corporal Matthews nor the two police officers who stopped Mr. Chabot observed the vehicle being driven in any irregular or improper manner. The two officers stopped the vehicle, and one of them noted strong smell of alcohol coming from Mr. Chabot's breath and his speech was somewhat slurred. Mr. Chabot was then taken to the police van and it was noticed that he was staggering and that his eyes were very red. Based on these observations, the constable arrested Mr. Chabot for impaired driving, read him the breathalyser demand, and gave him the usual Charter of Rights warning. Mr. Chabot was then taken to the police station where he eventually agreed to take the usual two breathalyser tests, which tests resulted in readings of 170 and 160 milligrams of alcohol in 100 millilitres of blood. At trial, Mr. Chabot was convicted by Judge Fran Potts of the breathalyser charge contrary to s. 253 (b) of the Criminal Code and was acquitted on s. 253 (a) charge for impaired driving. Included in Mr. Chabot's evidence was his statement that he had had two drinks of rum at another location prior to going to the alleged after‑hours place, and he stated that he had one beer at that location. He also advised the court that he had taken some mints and cough drops while at the police station and before he took the two breathalyser tests. The decision of Judge Potts has been appealed on four grounds, and it is submitted by counsel for the appellant that the four grounds can be encompassed into two issues as follows: (1) Was the arrest of the accused an arbitrary arrest and thus a violation of his rights under s. 9 of the Charter? If so, should the evidence thereby obtained as result of the Charier contravention be excluded? (2) Was the evidence of the amount the accused had to drink ‑ and the effect of the drink on the accused ‑ sufficient to constitute "evidence to the contrary" to rebut the presumption of s. 258 of the Criminal Code? If so, was it sufficient to result in an acquittal of the accused? Dealing first with the issue of arbitrary arrest, the ground of appeal in this regard states: That the learned Provincial Court Judge erred in law by admitting evidence obtained by the police as result of the police violating the defendants Charter of Rights by arbitrarily detaining him contrary to Section of the Charter when the police arrested him with view to questioning him in connection with an after hours club that was under investigation. It is clear that the judge found that Mr. Chabot was stopped as furtherance of the investigation of the police into the after‑hours club. The thrust of the appeal under this ground is that detention for the purpose of an investigation constitutes breach that is an arbitrary detention, and thus constitutes breach under s. of the Charter. Section states as follows: Everyone has the right not to be arbitrarily detained or imprisoned. There is no argument in this matter that Mr. Chabot was detained; "detained" in the sense of the Charter section. What is disputed is whether or not the detention was arbitrary. As authority for the submission that detention of this nature, that is detention to further an investigation, is contravention of the Charter, counsel for the appellant has referred me to R. Duguay, Murphy and Sevigny, [1989) 1989 CanLII 110 (SCC), S.C.R. 93, 56 D.L.R. (4th) 46, 46 C.C.C. (3d) (S.C.C.). This is decision of the Supreme Court of Canada where the majority found that the Ontario Court of Appeal had applied the proper principles of law to the facts of the particular case in excluding evidence. MacKinnon, A.C.J.O. speaking for the majority at the appeal level [(1985) 1985 CanLII 112 (ON CA), 18 C.C.C. (3d) 289,] stated at p. 296: In my view, on the facts as found by the trial judge, the arrest or detention was arbitrary, being for quite an Improper purpose namely, to assist in the investigation. This conclusion does not minimize the significance or importance of an experienced detective's 'hunch' or intuition. Such 'hunch' must, however, have some reasonable basis. It cannot be used as defence and explanation, without examination, for irrational and high‑handed actions. In that particular case, the majority of the Court of Appeal found that the arrest had not been made in good faith and was deliberate breach of the Charter made for an illegal purpose. They determined that the court could not turn blind eye to that conduct, for to do so would be condonation of police misconduct. What Duguay does stress is that detention based on reasonable grounds may not and probably would not contravene the Charter right of an accused. That is, if it can be established that the police officers in question had reasonable and probable grounds for their detention. In this regard, Judge Potts stated at p. 57 of the transcript of evidence as follows: Corporal Matthews then instructed other members of the Dartmouth City police who were operating police van to stop the defendant's vehicle. His instruction being that they were to stop the vehicle to check to see if there was any alcohol Involved with respect to the driver of the vehicle. Clearly from. his evidence the intention being that if the vehicle were stopped and it were found that the driver indeed was involved in the consumption of alcohol, they would then continue on to determine whether or not they might get evidence from Mr. Chabot with respect to this suspected after hours club. Certainly it was not random stop in the sense that not just any vehicle was being picked out to be stopped. The vehicle driven by the defendant was picked out particularly because the vehicle was observed at this particular residence; the defendant was observed to have entered this particular residence and to have remained there for some period of time; and he was observed leaving the residence and getting into the ‑‑ to his vehicle and indeed he was seen driving away from this particular area. And further on pp. 58‑59: Was there any reason to believe that Mr. Chabot had committed any offence? Certainly the Criminal Code sets out that peace officer may make demand for person to submit to an A.L.E.R.T. if he reasonably suspects that that person has alcohol in his body. On the evidence before me is there any evidence to from which the police could have reasonably suspected that Mr. Chabot had alcohol in his body? It seems to me under the circumstances of this particular case the observations that the police made with respect to this particular residence ‑‑ number of individuals who went to the residence, came out of the residence; number of individuals who were observed obviously to have been drinking as they emerged from that residence it seems to me under those circumstances the police would have had reason to suspect that the defendant had alcohol in his body. And certainly according‑to the evidence of Corporal Matthews that was the reason that he was having the vehicle stopped to determine if in fact the defendant had been involved in the consumption of alcohol albeit that his intention went further in the sense that were he successful in determining that the defendant had alcohol in his body he intended to further continue the investigation of the after hours club by questioning Mr. Chabot. Under the circumstances, therefore, before me find that the police had reason to suspect that the defendant had alcohol in his body. They therefore had grounds to stop the vehicle. Having grounds to stop the vehicle obviously they then proceeded after having stopped him to make certain observations from which they concluded that indeed the defendant's ability to operate motor vehicle was impaired by alcohol and under the circumstances would find that the defence has not established that the defendant's rights pursuant to Section have been infringed or denied and, therefore, there is no need to go onto further consideration with respect to Section 24(2). Counsel have assisted me by reference to various authorities regarding the nature of an arbitrary detention, and in particular to R. v. Hufsky (1988), 1988 CanLII 72 (SCC), 40 C.C.C. (3d) 398 (S.C.C.), and R. v. Ladouceur (1990), 1990 CanLII 108 (SCC), 77 C.R. (3d) 110 (SCC). Both decisions deal with the matter of arbitrary detention and random detention of an accused. In Hufsky at p. 407 the court discussed when the exercise of discretion of police officer becomes arbitrary. At that page, Le Dain, J., speaking for the court, stated that: discretion is arbitrary if there are no criteria, express or implied, which govern its exercise. The circumstances before Judge Potts were not dissimilar to the circumstances in R. v. Wilson (1990), 1990 CanLII 109 (SCC), 77 C.R. (3d) 137 (S.C.C.), where Cory, J., delivering the decision of the majority, stated at p. 142: Second, in this case the stopping of the appellant was not random, but was based on the fact that the appellant was driving away from hotel shortly after the closing time for the bar and that the vehicle and its occupants were unknown to the police officer. While these facts might not form grounds for stopping vehicle in downtown Edmonton or Toronto, they merit consideration in the setting of rural community. In case such as this, where the police offer grounds for stopping motorist that are reasonable and can be clearly expressed (the articulable cause referred to in the American authorities), the stop should not be regarded as random. As result, although the appellant was detained, the detention was not arbitrary in this case and the stop did not violate s. of the Charter. In the fact situation before me, it is clear that the police officers involved were not acting arbitrarily or in a random fashion. They, in fact, had advanced a reasonable basis and had an articulable cause for stopping the vehicle in question, and I find that Judge Potts was not in error in law or in her finding of facts in her decision in that regard. The second ground deals with whether the evidence of the amount of alcohol consumed and the extent that it might have constituted "evidence to the contrary" to rebut s. 258 of the Criminal Code. This issue encompasses the final three grounds of the appeal which state: That the learned Provincial Court Judge erred in law by failing to instruct herself correctly as to the admissibility or weight of evidence given by the accused as to the amount of alcohol he consumed over the relevant period. That the learned Provincial Court Judge erred in law by failing to give effect to the opinion of the crown expert that the amount consumed by the accused would not have given the readings which appeared on the certificate and therefore constituted evidence to the contrary. That the learned Provincial Court Judge erred in law by failing to instruct herself with respect to the burden on the Crown. In this respect, the defence submits that the evidence advanced by the accused as to the amount that he had to drink was proven through the Crown expert to be such that it should result in reading significantly less than the alcohol concentration forbidden under s. 258 of the Code. further submission is that there was evidence that the consumption of certain mints and cough drops might give higher reading than was caused by the presence of alcohol. Judge Potts considered the evidence to this effect and concluded at p. 119 of the transcript: The difficulty then have is clearing (sic) there is evidence from the defendant with respect to his belief at least as to how much alcohol he had to consume and clearly there is evidence from the Crown expert acknowledging that based on the defendant's own evidence with respect to what alcohol he had to consume that the ‑‑ that particular consumption would not support the readings which are contained on the Certificate of Analysis. As indicated earlier though the evidence of the expert is only as meaningful only becomes meaningful if it is based on reliable and admissible evidence. Certainly with respect to Mr. Chabot it is clear that with the exception of his evidence with respect to the consumption of the beer at this address on Chappell Street [the place under observation] there is essentially in my view no admissible evidence with respect to the other consumption that he spoke of. Indeed his evidence on the consumption of this rum was based according to his evidence on his conversations with his wife and what she told him with respect to how that alcohol was served clearly that is evidence which is hearsay evidence. And hearsay evidence being evidence or being information supplied by third party and evidence which the defence or the Crown in particular circumstances seeks to adduce for the proof of it. Certainly there are lots of circumstances in which both‑ Crown and defence are entitled to present evidence of what third party has said provided that it is not being introduced to prove the truth. In this particular circumstance if it is not being introduced for the truth of it, then it seems to me it has no meaning whatsoever because if it's not being used for the truth of it, then it has no meaning in terms of the subsequent opinion of the expert. Under the circumstances, therefore, it seems to me that cannot rely even as much as acknowledge the evidence of Miss Baughan [the expert] that based on the defendant's testimony as to what he had consumed would not square with the results of the breathalyser that opinion has no meaning in my view where it is based on the evidence of the defendant, evidence which in my view is not admissible. The submission of the appellant is that there was some admissible evidence supporting the appellant's submission regarding consumption, other than the evidence of his wife, and that was statement made at page 66 of the transcript by the appellant himself in response to question as to whether he was relying on what his wife told him and is as follows: No. I'm relying on what know and what she told me, yes. We were together. I'd have no reason to tell you different. Essentially, based on that response, the appellant contends that there was some evidence as to the amount the appellant had drank on the night in question. Very briefly, his evidence was that he had two drinks and that he believed from what his wife had told him those two drinks were poured from small bottles, and based on either his own estimate or estimates from his wife, those bottles would contain one and one‑half ounces of rum each. In R. v. Kays (1987), 62 C.R. (3d) 193 (S.C.,A.D.), Chipman, J.A., delivering the decision of the court, reviewed authorities on the consideration of "evidence to the contrary' to rebut the presumption of the breathalyser offence. After reviewing these authorities at pp. 197‑202, he concluded at pp. 202‑203: On the basis of the foregoing authority am of the opinion that "evidence to the contrary" within the meaning of s. 241(1)(c) [now s. 258(1)(c)] of the Criminal Code must be evidence which raises reasonable doubt that the accused's blood‑alcohol concentration, at the time of the alleged offence, exceeded 80 mg of alcohol in 100 ml of blood. It is not enough that the evidence offered merely shows that the accused's blood‑alcohol concentration may have been either higher or lower than the readings set out in the certificate. The proposition enunciated in Crosthwait, supra, that "evidence to the contrary" must raise reasonable doubt that the accused's blood‑alcohol concentration exceed the permissible level has been accepted and applied in number of instances. The difficulty with the evidence tendered in the case at bar is that it does not tend to show that the respondent's blood‑alcohol level was within the permitted limits. It is at most evidence from which court might conclude that that level could at the time of the alleged offence have been different from the level in the certificate. do not find that the learned Provincial Court Judge misinterpreted the evidence "to the contrary". find she applied the correct principles of law in relation to the evidence of the expert and the evidence of alcohol consumption. do not find that the trial judge failed to instruct herself as to the admissibility or weight of the evidence relating to alcohol consumption by the accused. She concludes her decision as follows: Under the circumstances there being no admissible evidence upon which the expert could express that opinion am not satisfied under the circumstances that there is evidence which is capable in this circumstance of being evidence to the contrary and with respect to the first count on the information, that is the charge contrary to Section 253(b) of the Criminal Code, find that the Crown has established its case beyond reasonable doubt and find the defendant guilty of the offence as charged. am satisfied that in applying the burden the learned trial judge properly instructed herself on the law, that is, that the burden is on the Crown to establish the case beyond reasonable doubt. I find generally that the verdict of the learned trial judge was a verdict based on allthe evidence, one which a jury properly instructed and acting judicially could reasonably have rendered I therefore dismiss the appeal J. Halifax, Nova Scotia

The appellant was detained after leaving a suspected 'after hours' club which was under surveillance by police. He was charged with a breathalyzer offence, and was convicted. He appealed, arguing his s. 9 Charter rights had been violated. He also contended the evidence of the amount of alcohol he had consumed on the night in question constituted 'evidence to the contrary' which rebutted the presumption in s. 258 of the Criminal Code. Dismissing the appeal, that the police officers were not acting arbitrarily or in a random fashion when they detained the appellant, and had a reasonable basis for stopping his vehicle. The appellant's contention he consumed only two small bottles (1-1/2 ounces each) of rum, plus some cough syrup and mints, did not constitute evidence to the contrary to rebut the presumption of the breathalyzer offence. On Appeal.

3_1993canlii4594.txt

D.P. BALL QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2016 SKQB 160 Date: 2016 05 09 Docket: CRM 80 of 2015 Judicial Centre: Regina BETWEEN: HER MAJESTY THE QUEEN and JAY JAMES DRYSDALE Counsel: David Kim Jones for the Crown Andrew Hitchcock for the accused JUDGMENT ZARZECZNY J. MAY 9, 2016 INTRODUCTION [1] On August 7, 2014, Jay James Drysdale was panhandling, along with companion, at the 7-Eleven convenience store at the corner of Winnipeg Street and Victoria Avenue in Regina. Mr. Drysdale is First Nations and he was homeless at the time. He and his companion had much to drink that day and Mr. Drysdale was intoxicated. He had verbal confrontation with Simon Brown, security officer providing loss protection services to the 7-Eleven. Mr. Drysdale returned to his dufflebag short distance away from the confrontation, took out kitchen butcher knife and walked towards Mr. Brown. Frightened, Mr. Brown, and second security officer also in his company, ran Mr. Brown to his SUV vehicle in the parking lot short distance away. Mr. Drysdale pursued him to the vehicle and slashed one of the vehicle’s tires with the knife he was still carrying. Mr. Drysdale left the scene, went to the rear of the 7-Eleven building and, in an alleyway, went into yard and threw away the knife. Police attended, arrested and charged him with the offence that he faced at his trial. THE INDICTMENT [2] The indictment sworn against Mr. Drysdale dated October 1, 2015 charges as follows: 1. THAT HE, the said Jay James Drysdale on or about the 7th day of August, A.D. 2014 at or near Regina, Saskatchewan, did in committing an assault on Simon Brown threaten to use a weapon, to wit: a butcher knife, contrary to section 267(a) of the Criminal Code. [3] This case rests primarily upon its facts. For that reason, will review the evidence presented in some detail. The Crown called five witnesses who gave evidence at the trial including Simon Brown and his security officer in training, Jason Hedstrom, Cst. Tyler Lerat and two bystander witnesses, Michael Dyck and Adam Fretz. The defence called Mr. Drysdale to give his evidence. The evidence of these witnesses, which will now review, provided the facts and circumstances of this case. [4] Cst. Lerat testified that he was uniformed officer on patrol the early evening of August 7, 2014. He received call to attend at the 7-Eleven store at Victoria Avenue and Winnipeg Street from his dispatcher who had received call that man with large knife was at that location and that he had chased victim and slashed tire on the victim’s car. Cst. Lerat attended at the scene and spoke to number of witnesses who reported seeing the individual in question running into yard at 1925 Winnipeg Street. second police vehicle and officers attended and they apprehended and arrested Mr. Drysdale. Cst. Lerat inspected the yard at 1925 Winnipeg Street and he found and seized large “butcher knife” entered as Exhibit P1 at the trial. [5] Simon Brown, the primary victim of these circumstances, testified that he is the Regional Manager of Impact Security Group, company whose security services were engaged by 7-Eleven to provide loss prevention mainly shoplifting, but as well general store security, at its location on Victoria Avenue and Winnipeg Street. At that location, he was accompanied by Jason Hedstrom, another security officer in training employed by Impact. Both were dressed in casual clothes. [6] Mr. Brown testified that he and Mr. Hedstrom were in the 7-Eleven store but walked out of the front main door and took position sitting on ledge, distance away from it. Mr. Brown was having cigarette when the accused, Mr. Drysdale, came up to him and at very close quarters, held cigarette to his face. Mr. Brown admits saying to Mr. Drysdale, in stern voice, “Get the fuck out of my face”. He did not recall seeing Mr. Drysdale before the events of this day but he had seen Mr. Drysdale panhandling by the main entrance of the store before the confrontation. [7] Mr. Brown testified that it appeared Mr. Drysdale was angered by Mr. Brown’s stern comment. He saw Mr. Drysdale walk away, returning to the area of the front entrance of the store where he had apparently left dufflebag. He observed Mr. Drysdale rummaging through his dufflebag and throwing out cans and bottles that were in it. He then saw Mr. Drysdale pull large knife out of his bag and, with the knife in his hand, walking towards him. [8] Seeing this, Mr. Brown testified he took off running into the parking lot. Mr. Drysdale chased after him. Mr. Brown ran to his SUV vehicle at the end of the parking lot, some 100 feet away, followed all the while by Mr. Drysdale. Mr. Brown got into his vehicle and locked the doors. He saw Mr. Drysdale come up to the vehicle, heard him yell something, and heard him hitting the vehicle with the knife. Mr. Brown called 9-1-1on his cell phone and testified he “thought my life was in danger”. In his rear view mirror, he observed Mr. Drysdale with the knife in his hand and saw him making stabbing motion downward towards his vehicle. He then saw Mr. Drysdale heading towards the back alley at the rear of the 7-Eleven store. Mr. Brown followed in his vehicle, which now had flat tire. He saw Mr. Drysdale, still with the knife in his hand, run into yard, observed the police arriving, and Mr. Drysdale being arrested. [9] few days later, Mr. Brown returned to the 7-Eleven store and recovered video tape depicting some of the events that occurred. He delivered copy to the Regina Police Service, retaining one for his records. As it would later come to light, the copy delivered to the Police Service was misplaced, however, Mr. Brown’s copy was discovered after the case for both the Crown and defence was closed. By an Agreed Statement of Facts, entered as Exhibit P4, both defence and Crown counsel agreed to open the case, have the video tape entered as Crown exhibit and played. [10] Jason Hedstrom testified to much the same effect as did Mr. Brown. What he remembered of the verbal altercation between Mr. Brown and Mr. Drysdale was slightly different than testified to by Mr. Brown. Mr. Hedstrom testified that Mr. Brown said “Get the fuck out of my face or I’ll knock you out”. [11] Mr. Hedstrom, too, was frightened when he saw Mr. Drysdale coming towards he and Mr. Brown with large knife. He testified that he was “fairly petrified” and ran quickly block or so away from the scene of the initial confrontation between Mr. Brown and Mr. Drysdale. He testified he saw Mr. Drysdale chase after Mr. Brown with the knife in his hand. [12] Mr. Brown testified, on cross-examination, that he was six feet tall and approximately 265 pounds at the time and Mr. Hedstrom that he was also six feet tall and approximately 275 pounds. Both accepted that Mr. Drysdale was considerably smaller than either one of them. Messrs. Michael Dyck and Adam Fretz were two bystanders who lived in the neighbourhood and were walking to the 7-Eleven where they intended to buy some confections. Mr. Dyck testified that he saw two persons outside of the 7-Eleven, one being Mr. Brown and the other the accused, Mr. Drysdale. He testified he saw the accused becoming upset, saw Mr. Drysdale going to dufflebag, digging through it and pulling out the knife. [14] He described Mr. Drysdale as being very upset and yelling. He saw him with the knife in his hand going towards Mr. Brown. He saw Mr. Brown running away and the accused chasing him to his vehicle. He saw Mr. Drysdale stab the tire of the vehicle with the knife. He then observed Mr. Drysdale walking behind the 7-Eleven into an alley, still with the knife in his hand. He testified that he thought Mr. Drysdale to be drunk and that he saw can of beer in his hand during the altercation with Mr. Brown. [15] Mr. Dyck followed the accused into the back alley and saw him throw the knife he still carried away in the yard of residence backing onto it. He eventually went into that back yard, saw where the knife was lying, and after one arrived, showed the police officer where it was. [16] Mr. Adam Fretz’s testimony was much to the same effect as Mr. Dyck’s. He was the individual in the company of Mr. Dyck. He, too, saw and heard the altercation between “native guy”, as he described Mr. Drysdale, and two individuals who later became identified as Messrs. Brown and Hedstrom. [17] Mr. Fretz had specific recollection of seeing Mr. Drysdale digging through dufflebag, throwing cans and bottles out of it and pulling out the knife which he then had in his hand. He observed Mr. Drysdale chasing Mr. Brown to his car, slashing tire on the car and Mr. Drysdale taking off down the back alley. He, too, thought he saw the accused with can of beer in his hand, which he specifically identified as an MGD (Miller Genuine Draft) beer. He observed the accused run into yard in the alley at the back of the 7-Eleven store. [18] Mr. Drysdale, the accused, gave evidence and his account of the events differed to some degree from that given by the Crown witnesses. He testified that at the time he was homeless and approximately five feet eight inches tall, weighing 145 pounds. He admitted to having lots to drink the day of this incident and that he and his companion went to the 7-Eleven store to panhandle and get more money. He testified that at the 7-Eleven store he “blacked out” only to find himself, when he came out of it, standing in front of two guys. He recalled he offered them cigarette “for being in their personal space”. He testified one of the guys said he would punch him out. As best he could recall, that individual (accepted to be Mr. Brown) said something to the effect “Get the fuck out of my face or I’ll beat the fuck out of you”. [19] Mr. Drysdale testified that he was nervous, that he went back to his bag to show them he was not afraid of them. He got his knife, intending to “show them had more power than them”. He admits that he had the knife in his hand and testified he walked towards the two men who he testified were walking towards him. They looked at him and ran away. He testified that the two men “made me feel small”. He testified, in chief, that it was not his intention to stab Mr. Brown, but rather he grabbed his knife “to make myself bigger than those two men”. [20] At one point in his examination-in-chief he admitted going after Mr. Brown to his vehicle, but at another point said although he followed one of the men, he stopped because he felt he had made his point. He then testified he did not follow the man to his vehicle. [21] Mr. Drysdale testified he tried to get away from the area, intending first to cross Winnipeg Street. He still had the knife with him. He testified he was prevented from doing so by large black vehicle that was blocking his way. He then turned and went into the back alley at the back of the 7-Eleven store. He said that on number of occasions, the black vehicle chased him in the back alley, and blocked his way and caused him to go into panic mode. That is when and where he testified he stabbed the vehicle’s tire. Mr. Drysdale then testified he went into yard where he admitted he threw the knife away. [22] On cross-examination, he admitted not only to drinking for most of the day with his companion, but as well taking the drug methadone. He testified that he blacked out at the 7-Eleven, which meant that he did not remember anything until he recovered to find himself in the personal space of Mr. Brown. He admitted he went for his knife to show them that “I wasn’t alone”. He stated that if they intimidated him, he would intimidate them back by showing his knife “I was pretty drunk”. He testified that it was his friend, not he, who had the MGD beer in his hand. [23] Mr. Drysdale further testified, on cross-examination, that after the verbal confrontation with Mr. Brown, he admitted Mr. Brown did not “come after me” and that he (Mr Brown) did not yell after him. He admitted that he went to his bag, got his knife and reiterated that his intention was to show the two men that he was not alone. He admitted that Mr. Brown never touched him or hit him and again, that Mr. Brown did not follow him to his bag. His intention, he stated, was to intimidate Mr. Brown. He testified that he thought he probably said “want piece of this” when approaching Mr. Brown with his knife. He said Mr. Brown and his friend ran away when they saw him with the knife, that he went after Mr. Brown when he ran away (this is illustrated in the video tape), testifying his purpose was to ensure that Mr. Brown would not come back after him. He accepted that he went to the back alley to get away from the black vehicle which was blocking his way as he attempted firstly to cross Winnipeg Street, and thereafter blocking his way, on number of occasions, in the back alley behind the 7-Eleven, two or three times. He testified, as he did in chief, that it was at that time that he stabbed the tire of the vehicle. He did not see nor recognize who the driver of it was. [24] The main issue for the determination of the court in respect to this case is whether or not Mr. Drysdale is guilty of the offence as charged in the indictment. Counsel for Mr. Drysdale raises self-defence as defence to the charge against him, thereby also placing self-defence in issue in this case. ANALYSIS The Criminal Code [25] Section 267(a) of the Criminal Code, RSC 1985, C-46, the section with which Mr. Drysdale is charged, provides in part as follows: 267 Every one who, in committing an assault, (a) carries, uses or threatens to use weapon or an imitation thereof, ... is guilty of an indictable offence and liable to imprisonment for term not exceeding ten years [26] Section 265 of the Criminal Code defines assault, in part, as follows: 265 (1) person commits an assault when (b) he attempts or threatens, by an act or gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; [27] Finally, s. of the Criminal Code defines “weapon” as follows: In this Act, weapon means any thing used, designed to be used or intended for use (a) in causing death or injury to any person, or (b) for the purpose of threatening or intimidating any person The Evidence [28] Because of stipulation made by counsel for the defendant, there is no issue respecting the identification of Mr. Drysdale. There is also no question that the Crown has established, beyond a reasonable doubt, that the offence charged occurred on the date and at the location alleged in the indictment and that the butcher knife entered as Exhibit P1 is clearly a weapon as defined by s. 2 of the Criminal Code. [29] I also have no hesitation in finding and concluding that it was Mr. Drysdale who initiated the confrontation between he and Mr. Brown by walking up to him and, in very close quarters, as Mr. Drysdale himself testified, getting into his personal space. also accept that the evidence proves, beyond reasonable doubt, that Mr. Brown said something to Mr. Drysdale that caused him to become upset, go to his dufflebag, retrieve the large butcher knife in it (it was 15 inches long and the blade 10 inches), and that Mr. Drysdale then approached Mr. Brown and Mr. Hedstrom with the knife in his hand. am also satisfied, beyond reasonable doubt, that the Crown has established that by these actions, Mr. Drysdale threatened to apply force to Mr. Brown and that Mr. Brown believed, on reasonable grounds, that Mr. Drysdale had the present ability to effect his purpose, namely to threaten to apply force to him. Clearly Mr. Brown did not consent to him doing so. [30] By his own evidence and admissions during both examinations-in-chief and cross-examination, Mr. Drysdale condemned himself. He admits that it was he who initiated the confrontation with Mr. Brown by being “in his personal space”, that Mr. Brown, although saying something offensive to him, nevertheless did not touch him nor did he go after Mr. Drysdale when Mr. Drysdale left the scene of the verbal confrontation to go to his dufflebag and retrieve the knife. He admits that his purpose was to intimidate the two men (a word that he used) and to show them that “he wasn’t alone”. His intention was to make himself bigger, which the court took him to mean that although he was smaller than the two men he was confronting, the large knife would compensate for their differences in size. He admitted in his evidence that when Mr. Brown ran away, he followed with the knife still in his hand. [31] Where Mr. Drysdale’s evidence differs from those of the five Crown witnesses, it does so on peripheral events and circumstances and not on the main circumstances containing the elements of the offence charged. The one exception is his evidence regarding the stabbing of tire on the SUV vehicle which he testified took place in the alley behind the 7-Eleven. This directly contradicts the evidence not only of Mr. Brown, but as well, the eye-witness evidence of Messrs. Dyck and Fretz, two bystanders having no involvement with the confrontation Mr. Drysdale had with Mr. Brown. have concluded that the evidence of these latter witnesses on this point reflects what occurred both at Mr. Brown’s vehicle in the parking lot and in the alley. [32] My colleague, Mr. Justice Mills, in the case of Severight, 2010 SKQB 278 (CanLII), 357 Sask 304, had occasion to consider and apply the provisions of s. 267(a) of the Criminal Code in that case. That case, too, involved an individual carrying knives moving towards individuals, in that case, police officers. The case is an illustration of the dangerous consequences of such an action not only for the individuals who are victimized by such actions but as well, an accused, who in that case, was shot by one of the peace officers. At para. 44, quoting from the decision of Justice Batten in the case of Madsen (1991) 1991 CanLII 7629 (SK QB), 95 Sask 290 (QB), Justice Mills adopted the principle stated in that case as follows: ... "It is not necessary to constitute the offence of assault that the accused actually apply force or even intend to do so. It is sufficient if he threatens to do so and has the present ability to do so. Mens rea lies in the intention to threaten not in the intention to carry out that threat." [emphasis added] See also: Horncastle (1972), 1972 CanLII 1320 (NB CA), NBR (2d) 821 (NBSC) at 262 and 263; Jorden (2000), 2000 CanLII 19647 (SK PC), 196 Sask 300 (PC)) Self-defence [33] Counsel for Mr. Drysdale argues that this Court should find that self-defence is applicable in all of the circumstances established by the evidence given in this case. He relies upon s. 34 of the Criminal Code which provides as follows: 34 (1) person is not guilty of an offence if (a) they believe on reasonable grounds that force is being used against them or another person or that threat of force is being made against them or another person; (b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and (c) the act committed is reasonable in the circumstances. (2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors: (a) the nature of the force or threat; (b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; (c) the person’s role in the incident; (d) whether any party to the incident used or threatened to use weapon; (e) the size, age, gender and physical capabilities of the parties to the incident; (f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident; (g) the nature and proportionality of the person’s response to the use or threat of force; and (h) whether the act committed was in response to use or threat of force that the person knew was lawful. [34] In his submissions, counsel for Mr. Drysdale points to the evidence to establish that Mr. Brown threatened Mr. Drysdale. Counsel also submitted that it is not for the accused to establish self-defence but the burden rests with the Crown to establish, beyond reasonable doubt, that self-defence is not applicable in all the circumstances and, therefore, that this defence does not succeed. accept these submissions. [35] Mr. Hedstrom testified Mr. Brown said words to the effect “Get the fuck out of my face or I’ll knock you out”. Mr. Drysdale testified Mr. Brown said “Get the fuck out of my face or I’ll beat the fuck out of you”. Mr. Hitchcock submitted these words, in either case, constituted the use of “threat of force” made by Mr. Brown against Mr. Drysdale. also accept that submission. [36] Mr. Hitchcock goes on to submit that Mr. Drysdale was entitled to defend himself by taking the actions that he did, which are the subject matter of this charge against him. He further points to the fact that both Mr. Brown and Mr. Hedstrom were far bigger in size and weight than Mr. Drysdale and that, in and of itself, would be threatening to the latter. The accused’s comments, that he intended to make himself bigger by having and carrying the knife, reflects his mental state and the impact that Mr. Brown and Mr. Hedstrom’s size and Mr. Brown’s statement to him had on Mr. Drysdale namely they threatened him. [37] Mr. Hitchcock submitted for the court’s review the cases of Bladon, 2011 ABPC 145 (CanLII); B.E.N. (2000), 2000 CanLII 19579 (SK PC), 190 Sask 109 (PC) and Rice, 2013 BCPC 196 (CanLII), each being cases, as Mr. Hitchcock submitted, illustrating decisions where the courts either applied self-defence or rejected it. In addition to illustrating the analysis appropriate to application or non-application of self-defence, these cases illustrate the importance of an analysis of the particular facts and circumstances applicable to reach the appropriate legal result. It is also noteworthy that some of the cases pre-date the recent amendments to s. 34 of the Criminal Code. As the Supreme Court of Canada observed in the case of Ryan, 2013 SCC (CanLII), [2013] SCR 14, self-defence is justification based on the principle that it is lawful in defined circumstances to resist force or threat of force with force. [38] When one considers the factors set out in ss. 34(2), I have concluded, in all of the circumstances, that the nature of the force or threat that was presented by the size of Mr. Brown and Mr. Hedstrom, and the words used by Mr. Brown spoken to Mr. Drysdale, were not of a nature that would warrant, as reasonable, the action subsequently taken by Mr. Drysdale against Mr. Brown. I have reached this conclusion for a number of reasons, including the fact that it was Mr. Drysdale who initiated the confrontation by his approach to and very close contact with Mr. Brown. While Mr. Brown’s reaction and his statement was regrettably crude, disrespectful and insensitive to Mr. Drysdale and his circumstances, nevertheless the fact that he did not further assail Mr. Drysdale, nor touch him, nor, as Mr. Drysdale admitted on cross-examination, pursue him as he left, could only lead to the reasonable conclusion that Mr. Brown considered the matter over and he had no intention to use any force against Mr. Drysdale, nor was its use imminent within the meaning of ss. 34(2)(b). [39] While it is the case that the ss. 34(2)(d) factors clearly establish that both Mr. Brown and Mr. Hedstrom were much bigger than Mr. Drysdale and because of the latter’s apparent state of intoxication would be far more physically capable, if force were to be used, no physical force was actually used by Mr. Brown against Mr. Drysdale nor anything done or action taken by him after he verbally accosted Mr. Drysdale that would support reasonable conclusion that Mr. Brown’s use of force was imminent or posed threat to Mr. Drysdale. There was no history between these individuals as contemplated by ss. 34(2)(f), (f.1) nor does ss. 34(2)(h) apply. [40] I have concluded, as argued by the Crown, that Mr. Drysdale’s actions in leaving the area of confrontation and going back to his dufflebag to retrieve the knife and thereafter approaching Mr. Brown with the knife in his hand, pursuing him in the parking lot as he ran away, and using the knife to slash Mr. Brown’s vehicle’s tire, was completely out of proportion to any reasonable response to any threat that Mr. Drysdale may have perceived was made or presented by Mr. Brown in the circumstances of this case. [41] I have concluded that the Crown has established, beyond a reasonable doubt, that the facts and circumstances of this case do not give rise to the defence of self-defence. Mr. Drysdale’s actions were not reasonable in the circumstances and do not constitute lawful protection of himself from any use or threatened use of force against him by Mr. Brown. Nor was it reasonable for Mr. Drysdale to believe that there was a threat of use of force made against him warranting the measures that Mr. Drysdale took. [42] The accused testified but, as pointed out, where his evidence is at odds with that of the Crown’s witnesses, it is on peripheral matters only. His evidence does not raise reasonable doubt as to his guilt nor does it, in the context of the whole of the evidence and law have reviewed, leave reasonable doubt about his guilt. (R D.W., 1991 CanLII 93 (SCC), [1991] [43] have concluded that the Crown has established, beyond reasonable doubt, all of the elements of the offence and that the facts and circumstances of the case do not establish self-defence within the meaning of s. 34 of the Criminal Code after my analysis of those factors set out in ss. 34(2). In the result, I find the accused guilty as charged. J. T. C. ZARZECZNY

Criminal Law – Assault with a WeaponCriminal Law – Defences – Self-defence The accused was charged with assault by threatening to use a weapon, a butcher knife, contrary to s. 267(a) of the Criminal Code. The accused was panhandling outside a store when he and one of two security officers had a verbal confrontation. The accused walked towards the security officer with a butcher knife. The security officer ran to his vehicle and the accused followed him and slashed a tire on the security officer’s vehicle. The attending officer was directed to a yard where he located the accused. A knife was also located in the yard. A videotape from the store was entered as an exhibit and played for the court. The accused was considerably smaller than either of the security officers. The accused testified that he was homeless and had a lot to drink the day of the incident. He indicated that he “blacked out” and was in front of two security officers when he came to. He said that he offered them a cigarette for being in their personal space and one of the men told him that he would punch him out. The accused indicated that he got the knife out of the bag just to show the men that he was bigger than them. He said that he did not intend to stab them. At one point the accused admitted following the security officer to his vehicle and at another point said he did not. The accused said he then tried to get away from the area but was prevented from doing so by a large black vehicle. The accused said he eventually stabbed the vehicle’s tire because it was blocking his way and he went into panic mode. The accused raised the issue of self-defence. HELD: There was no question that the Crown established the offence beyond a reasonable doubt. The court found that the accused initiated the confrontation by walking up to the security officer and getting very close to him. The court found that the Crown witness’s evidence was preferred over the accused’s where it differed, namely the slashing of the vehicle tires. The court accepted the accused’s submission that the security officer told the accused to get out of his face or he would knock him out or something to that effect. The court considered the factors set out in s. 34(2) and concluded that the force or threat faced by the accused due to the size of the security officers and the words used by one of them did not warrant the action taken by the accused. The court offered numerous reasons for the conclusion: the accused initiated the confrontation; the security guard did not touch or further go after the accused; no physical force was used against the accused; and there was no history between the accused and security officer. The accused’s actions were out of proportion to any reasonable response to any threat. The court held that the Crown established, beyond a reasonable doubt, that the facts and circumstances of the case did not give rise to the defence of self-defence. The accused was found guilty as charged.

4_2016skqb160.txt

E. J. Gunn Editor’s Note: Corrigendum released on January 17, 2011. Original judgment has been corrected with text of corrigendum appended. NOVA SCOTIA COURT OF APPEAL Citation: Gilbert v. Giffin, 2010 NSCA 95 Date: 20101125 Docket: CA 319253 Registry: Halifax Between: Phyllis Gilbert v. James Douglas Giffin, Daimler Chrysler Services Canada Inc., and Coseco Insurance Company Respondents Docket: CA 319252 Between: James Douglas Giffin v. Daimler Chrysler Services Canada Inc., Coseco Insurance Company and Phyllis Gilbert Respondents Judge: The Honourable Justice David P.S. Farrar Appeal Heard: October 6, 2010 Subject: Summary Judgment, CPR 13.04 (2009) Motor Vehicle Act, R.S.N.S. 1989, c. 298, s. 2(ak) and s. 62(1) Interpretation Vicarious Liability Requirements Summary: The appellants appealed a decision granting summary judgment to the respondent, Chrysler, granting summary judgment to Chrysler on the basis that it was not vicariously liable for the negligence of Giffin. Held: Appeal dismissed. The Chambers judge committed no error in determining that the action against Chrysler had no reasonable chance of success. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 17 pages. NOVA SCOTIA COURT OF APPEAL Citation: Gilbert v. Giffin, 2010 NSCA 95 Date: 20101125 Docket: CA 319253 Registry: Halifax Between: Phyllis Gilbert v. James Douglas Giffin, Daimler Chrysler Services Canada Inc., and Coseco Insurance Company Respondents Docket: CA 319252 Between: James Douglas Giffin v. Daimler Chrysler Services Canada Inc., Coseco Insurance Company and Phyllis Gilbert Respondents Judges: MacDonald, C.J.N.S.; Saunders and Farrar, JJ.A. Appeal Heard: October 6, 2010, in Halifax, Nova Scotia Held: Appeals dismissed per reasons for judgment of Farrar, J.A.; MacDonald, C.J.N.S. and Saunders, J.A. concurring. Counsel: John P. Barry, Q.C. and Nadia M. MacPhee, for the appellant Phyllis Gilbert W. Augustus Richardson, Q.C., for appellant James Giffin C. Christopher Robinson, Q.C. and Ian Dunbar, for the respondent Daimler Chrysler Services Canada Inc. M. Darlene Willcott, for the respondent Coseco Insurance Company not appearing Reasons for judgment: [1] In two appeals, which we heard together, the appellants Phyllis Gilbert and James Giffin appealed from the decision of The Honourable Justice Arthur J. LeBlanc dated October 23, 2009, wherein he granted motion for summary judgment brought by the respondent Daimler Chrysler Services Canada Inc. (“Chrysler”) on the claim brought against it by the appellant Gilbert. [2] Gilbert and Giffin were involved in motor vehicle accident on June 12, 2003. Gilbert sued Giffin, her insurer and Chrysler for compensation in respect of injuries she sustained in the accident. Gilbert’s claim against Chrysler was that it was vicariously liable for the negligence of Giffin. The insurer was not participant in the motion or on this appeal. [3] Gilbert and Giffin both appeal to this Court alleging that the Chambers judge erred in granting Chrysler’s motion. [4] For the reasons which will now develop, would dismiss both appeals with costs to Chrysler. [5] On February 16, 2001, Giffin entered into an agreement to lease vehicle from Courtesy Chrysler for three year term. Giffin had an option to purchase the vehicle at the expiry of the lease for the amount of $18,104.00. [6] The lease was assigned from Courtesy Chrysler to Chrysler. [7] On June 12, 2003, Giffin and Gilbert were involved in motor vehicle accident. As result of that accident, Gilbert suffered personal injuries for which she filed suit against Giffin, her insurer, and Chrysler seeking compensation for the injuries. [8] The only allegation against Chrysler was that it was responsible in law for the negligence of Giffin. [9] The motion for summary judgment was heard by the Chambers judge on April 19, 2009. The evidence was by way of affidavit or admissions. None of the parties challenged the others’ evidence by way of cross-examination or otherwise. [10] The learned Chambers judge granted Chrysler’s motion for summary judgment. [11] Four grounds of appeal are raised in the Giffin factum. The Gilbert factum raises the same four grounds of appeal plus an additional ground of appeal. The issues on appeal may be summarized as follows: 1. whether the Chambers judge properly applied the law with respect to summary judgment; 2. whether Chrysler is “owner” within the meaning of s. 2(ak) of the Motor Vehicle Act, R.S.N.S. 1989, c. 298; 3. whether Chrysler is in the business of renting cars within the meaning of s. 62(1) of the Motor Vehicle Act; 4. whether the law of vicarious liability extends to cover leasing companies; 5. whether Chrysler is vicariously liable for any negligence attributed to Giffin. [12] will address the alleged errors after discussing the standard of review. Standard of Review [13] The parties have correctly identified the proper standard of review. The Chambers judge’s decision had final or terminating effect on the allegations against Chrysler, such that the standard of review is whether there arose an error of law resulting in an injustice. An error of law that affects the result constitutes an injustice. (AMCI Export Corp. v. Nova Scotia Power Inc., 2010 NSCA 41 (CanLII), 10; Turner v. Halifax Municipality, 2009 NSCA 106 (CanLII), 14). 1. Whether the Chambers judge properly applied the law with respect to summary judgment; [14] The prerequisites for summary judgment to dismiss an action are first that the applying defendant shows that there is no genuine issue of material fact requiring trial; and second, that the responding plaintiff fails to show that his claim has real chance of success (Guarantee Co. of North America v. Gordon Capital Corp., 1999 CanLII 664 (SCC), [1999] S.C.R. 423 at 27). [15] The Chambers judge correctly cited the test. The question is whether he erred in its application. [16] The material facts of this matter are not in dispute. Simply put, Giffin entered into lease agreement to lease car from Courtesy Chrysler. The lease agreement was assigned to Chrysler. Giffin, while driving the leased vehicle, was, subsequently, involved in an accident which resulted in personal injuries to Gilbert. [17] There were no issues of credibility and no need to weigh the evidence with respect to the version of events. [18] On this appeal, Gilbert argues that Chrysler’s alleged liability could not be decided without “full factual record”. Giffin argues that “complex legal questions” should not be decided on summary judgment. Both of these arguments run contrary to the decision of this Court in Holstein v. Eikelenboom, 2004 NSCA 103 (CanLII) at 30: [30] For reasons that are not clear to me, the learned Chambers judge concluded that only after full trial where the judge might “examine all the surrounding circumstances” or where “[a]ll, the circumstances both before and during the hearing before the Committee” could be considered would it be possible to decide if waiver had occurred. With respect, all of the surrounding circumstances were already well known. The material facts, as found by the Chambers judge, were not in dispute. The record as to what occurred prior to and in the presence of the panel is evident from the transcript of the hearings and the answers to interrogatories of Mr. Kestenberg. This is not case where the motions judge had to reconcile competing affidavits from opposing sides. The only disagreement between the parties concerned the application of the law of waiver to undisputed facts in order to decide whether waiver had in fact occurred. This is precisely what occurred in Gordon Capital, supra, where the only dispute concerned the application of the law, point with which the Court quickly dispensed in rather terse prose: The application of the law as stated to the facts is exactly what is contemplated by the summary judgment proceeding. [19] If there are no material facts in dispute, as is the case here, judge in Chambers must apply the law to the undisputed facts before him. The judge must decide issues of law, regardless of how complex they may be. There is no useful purpose in sending matter to trial where the only question to be decided is one of law. [20] Gilbert argues that the issue of liability between lessor and lessee is “novel and complex” and, therefore, should not be determined on summary judgment application. In support of her position, she relies upon this Court’s decision in Lienaux v. Campbell, 1998 CanLII 1828 (NS CA), [1998] N.S.J. No. 142 (Q.L.)(C.A.) where Cromwell, J.A. (as he then was) in writing for the Court held at 14: [14] Summary judgment applications are not the appropriate vehicle for determining disputed facts, difficult questions about the appropriate inferences to be drawn from facts or complex legal questions. This application raised all of these. (My emphasis) [21] The last sentence of 14 is not included in Gilbert’s citing of Cromwell, J.A. nor is the paragraph which immediately preceded 14 which held: [13] Virtually every element of the appellants' case is contested by the respondent. Whether there was personal obligation to contribute, whether the source of funds was required to be as the appellants allege, whether there was dishonesty, whether it induced action and caused deprivation are all in issue. The record before the Chambers judge simply did not meet the very heavy onus on the appellants of clearly demonstrating entitlement to judgment. Paragraph 13 and the final sentence in 14 add context to the decision in Lienaux. The complex legal issues in that case arose out of disputed facts and the appropriate inferences and legal consequences to be drawn from those facts (To similar effect, see also AMCI, supra). To suggest that the phrase “complex legal issues” should be read in isolation from the rest of the paragraph and the paragraph which preceded it is too narrow focus. It was never intended to be read in isolation from the context in which it was written. Lienaux, supra, is not authority for the proposition that complex legal issues cannot be determined on summary judgment motion. [22] Neither complexity, novelty, controversy nor contentiousness will exclude case from summary judgment motion where there are no material facts in dispute. [23] The Chambers judge did not err in determining there were no material facts in dispute and it was incumbent on him to make the determinations of law arising from those undisputed facts. [24] The issue before the Chambers judge, and before us, was the second step of the summary judgment test whether the appellants established that their claim for vicarious liability against Chrysler had real chance of success. These issues are all questions of law and are addressed under the appellants’ other grounds of appeal. will now turn to those grounds of appeal. Issues #2 and #3 2. Whether Chrysler is an “owner” within the meaning of s. 2(ak) of the Motor Vehicle Act, R.S.N.S. 1989, c. 298; 3. Whether Chrysler is in the business of renting cars within the meaning of s. 62(1) of the Motor Vehicle Act; [25] These two grounds of appeal are inter-related and will address them together. [26] Giffin argues that this appeal turns on the interpretation of two provisions of the Motor Vehicle Act, ss. 2(ak) and 62(1): 2. In this Act ... (ak) "owner" means person who holds the legal title of vehicle and includes transferee or in the event vehicle is the subject of an agreement for the conditional sale or lease thereof with the right of purchase upon performance of the conditions stated in the agreement and with an immediate right of possession vested in the conditional vendee or lessee, or in the event mortgagor of vehicle is entitled to possession, then the conditional vendee or lessee or mortgagor shall be deemed the owner for the purpose of this Act; 62 (1) The owner of motor vehicle engaged in the business of renting motor vehicles without drivers, who rents vehicle without driver to another, otherwise than as part of bona fide transaction involving the sale of the motor vehicle, permitting the renter to operate the vehicle upon the highways, shall be jointly and severally liable with the renter for any damages caused by the negligence of the latter in operating the vehicle and for any damages caused by the negligence of any person permitted to operate the vehicle by the person renting the same and with the express or implied permission of the owner. [27] Giffin raises two arguments with respect to these provisions. 1. Section 62(1) imposes strict liability in its own right; and 2. Section 2(ak), when read together with the “reverse onus” imposed on owners by s. 248, has roughly the same effect of imposing strict liability. [28] will deal summarily with the second aspect of Giffin’s argument. [29] Section 2(ak) when read in light of s. 248 does not impose any liability on the owner of motor vehicle. It is simply provision relating to the onus of proof of liability. The applicable provisions of s. 248 provide: 248 (1) Where any injury, loss or damage is incurred or sustained by any person by reason of the presence of motor vehicle upon highway, the onus of proof (a) that such injury, loss or damage did not entirely or solely arise through the negligence or improper conduct of the owner of the motor vehicle, or of the servant or agent of such owner acting in the course of his employment and within the scope of his authority as such servant or agent; (b) that such injury, loss or damage did not entirely or solely arise through the negligence or improper conduct of the operator of the motor vehicle, shall be upon the owner or operator of the motor vehicle. 2) Subsection (1) shall not apply where the injury, loss or damage is incurred or sustained by (a) reason of collision of motor vehicle or motor vehicles with another motor vehicle or other motor vehicles, and the action is brought or the counterclaim is made by the person who was at the time of the collision the owner or operator of one of such motor vehicles; [Emphasis added] (3) person operating motor vehicle, other than the owner thereof, shall be deemed to be the servant and agent of the owner of the motor vehicle and to be operating the motor vehicle as such servant and agent acting in the course of his employment and within the scope of his authority as such servant and agent unless and until the contrary is established. [30] As is apparent on its face, s. 248(1) does not apply where the loss or damages occasioned by the collision of motor vehicles, (s. 248(2)(a)) such is the situation in this case. [31] The only potential application of s. 248 in this case is s. 248(3) which deems person operating motor vehicle to be the servant and agent of the owner of the motor vehicle unless the contrary is established. [32] Counsel, in argument, acknowledged that there was no issue on that point. Giffin was not acting as the servant or agent of Chrysler in the operation of the motor vehicle at the time the accident occurred. As a result, s. 248 has no application on the facts of this case. The reverse onus provision simply does not apply. [33] will now turn to the issue of whether the Chambers judge erred in determining that s. 62(1) of the Act did not apply. [34] The Chambers judge, when addressing this argument, concluded at 64 of his decision: [64] I am satisfied that there is not a real chance of success on the arguments advanced by Mr. Giffin respecting Chrysler\'s alleged liability by operation of the Motor Vehicle Act. Neither the argument that the lease between Chrysler and Mr. Giffin was actually a rental contract pursuant to s. 62 of the Act, nor the claim that Chysler is an owner pursuant to s. 2(ak), have a real chance of success on the undisputed facts. The lease plainly falls into the "lease with right of purchase" exception to the definition of "owner." [35] The Chambers judge continued at 39-40 of his decision: [39] cannot accept the argument that s. 62 can be applied so as to impose liability in circumstances such as these, where ss. 248(1) and 2(ak), which speak directly to the situation, indicate different result. The lease contains the characteristics noted in s. 2(ak); it cannot realistically be depicted as "rental contract" as defined in s. 62. Further support for this conclusion can be found in s. 61, which, along with s. 62, falls under the heading of "For Rent Cars." Subsection 61(1) provides: Every person engaged in the business of renting motor vehicles without drivers who rents vehicle without driver, otherwise than as part of bona fide transaction involving the sale of the motor vehicle, shall maintain record of the identity of the person to whom the vehicle is rented and the exact time the vehicle is the subject of the rental or in possession of the person renting and having the use of the vehicle and every such record shall be open to inspection by the Registrar, an officer of the Royal Canadian Mounted Police, chief of police, an inspector of motor vehicles, or by any other person upon signed order of any such official, and it shall be an offence for any such owner to fail to make or have in his possession or to refuse an inspection of the record as required in this Section. [40] With this record‑keeping requirement, the Act is contemplating situation distinct from lease with an option to purchase as described in s. 2(ak). conclude that there is no real chance of success based on the argument under s. 62. [36] agree with the Chambers judge. Giffin’s argument on this point has no real chance of success. [37] At the heart of Giffin’s argument on this point is that “Gold Key Lease” is not “an agreement for the conditional sale or lease thereof with the right of purchase upon performance of the conditions stated in the agreement” (s. 2(ak)) but is instead rental agreement “otherwise than as part of bona fide transaction involving the sale of motor vehicle” (s. 62(1)). What this argument overlooks, even if you accept that the Gold Key Lease does not fall within s. 2(ak) (which do not), is that it does not fit within the other subsections of s. 62, in particular, s. 62(3) and 62(5) which provide as follows: 62(3) Whenever the owner of motor vehicle rents the vehicle without driver to another it shall be an offence for the latter to permit any other person to operate the vehicle without the permission of the owner. (5) No owner of motor vehicle engaged in the business of renting motor vehicles without drivers shall rent any such vehicle under any contract or agreement unless and until the Registrar has approved of form of agreement to be entered into by the owner and the renter. [38] The Gold Key Lease does not place any restrictions on Giffin with respect to the use of the motor vehicle. Section 62(3) emphasizes high level of control that is involved when an owner rents vehicle to an individual as contemplated by that section. Under s. 62 it is an offence for an individual to drive rental car without the owner’s permission. There is no suggestion, nor is there any evidence that Chrysler exercised the high level of control that is mandated by s. 62. [39] Section 62(5) also mitigates against Giffin’s argument. It provides: (5) No owner of motor vehicle engaged in the business of renting motor vehicles without drivers shall rent any such vehicle under any contract or agreement unless and until the Registrar has approved of form of agreement to be entered into by the owner and the renter. [40] There is no evidence, nor any suggestion, that the Gold Key Lease was required to be filed or was filed with the Registrar. [41] This is further support for the conclusion that the lease agreement does not fit within the type of rental agreement contemplated by s. 62 of the Motor Vehicle Act. [42] Giffin’s argument assumes that if the lease agreement does not fall within s. 2(ak) of the Act then it must fall within s. 62 of the Motor Vehicle Act. That is simply not so. The Gold Key Lease has none of the characteristics of rental agreement as contemplated by s. 62 (see Nixon v. Robert, infra, 58). [43] For these reasons, Giffin’s argument on this point must fail. Issues #4 and #5 4. Whether the law of vicarious liability extends to cover leasing companies; 5. Whether Chrysler is vicariously liable for any negligence attributed to Giffin. [44] Both of these issues deal with vicarious liability at common law. As such, will address them jointly. [45] This is the primary argument on behalf of the appellant Gilbert. In essence, she argues that the Chambers judge erred in failing to properly apply the law in Bazley v. Curry, 1999 CanLII 692 (SCC), [1999] S.C.R. 534, S.C.J. No. 35 (Q.L.) and the law that has developed since that case was decided. [46] She argues that the Chambers judge failed to provide any analysis of the Bazley criteria and in failing to do so committed an error of law. [47] With respect, disagree. [48] The Chambers judge cites, at length, from Bazley (¶ 45-48). He then outlines the arguments made on behalf of the appellant and the respondent for and against the principles as enunciated in Bazley. [49] Following the recitation of these arguments he concludes at 65 that the appellants have failed to show that there was any real chance of success based on the law of vicarious liability. Again, agree with the Chambers judge for the reasons will explain. [50] In Bazley, supra, the Court was addressing whether non-profit organization, operating two residential care facilities for the treatment of emotionally troubled children was vicariously liable for an employee’s tortious conduct in sexually abusing resident of the facility. After consideration of the law and policy considerations, the Court concluded: 41 Reviewing the jurisprudence, and considering the policy issues involved, conclude that in determining whether an employer is vicariously liable for an employee’s unauthorized, intentional wrong in cases where precedent is inconclusive, courts should be guided by the following principles: (1) They should openly confront the question of whether liability should lie against the employer, rather than obscuring the decision beneath semantic discussions of “scope of employment” and “mode of conduct”. (2) The fundamental question is whether the wrongful act is sufficiently related to conduct authorized by the employer to justify the imposition of vicarious liability. Vicarious liability is generally appropriate where there is significant connection between the creation or enhancement of risk and the wrong that accrues therefrom, even if unrelated to the employer’s desires. Where this is so, vicarious liability will serve the policy considerations of provision of an adequate and just remedy and deterrence. Incidental connections to the employment enterprise, like time and place (without more), will not suffice. Once engaged in particular business, it is fair that an employer be made to pay the generally foreseeable costs of that business. In contrast, to impose liability for costs unrelated to the risk would effectively make the employer an involuntary insurer. (3) In determining the sufficiency of the connection between the employer’s creation or enhancement of the risk and the wrong complained of, subsidiary factors may be considered. These may vary with the nature of the case. When related to intentional torts, the relevant factors may include, but are not limited to, the following: (a) the opportunity that the enterprise afforded the employee to abuse his or her power; (b) the extent to which the wrongful act may have furthered the employer’s aims (and hence be more likely to have been committed by the employee); (c) the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise; (d) the extent of power conferred on the employee in relation to the victim; (e) the vulnerability of potential victims to wrongful exercise of the employee’s power. 42 Applying these general considerations to sexual abuse by employees, there must be strong connection between what the employer was asking the employee to do (the risk created by the employer’s enterprise) and the wrongful act. It must be possible to say that the employer significantly increased the risk of the harm by putting the employee in his or her position and requiring him to perform the assigned tasks. The policy considerations that justify imposition of vicarious liability for an employee’s sexual misconduct are unlikely to be satisfied by incidental considerations of time and place. For example, an incidental or random attack by an employee that merely happens to take place on the employer’s premises during working hours will scarcely justify holding the employer liable. Such an attack is unlikely to be related to the business the employer is conducting or what the employee was asked to do and, hence, to any risk that was created. Nor is the imposition of liability likely to have significant deterrent effect; short of closing the premises or discharging all employees, little can be done to avoid the random wrong. Nor is foreseeability of harm used in negligence law the test. What is required is material increase in the risk as consequence of the employer’s enterprise and the duties he entrusted to the employee, mindful of the policies behind vicarious liability. [51] Bazley is distinguishable, on its facts, from the present situation. It involved an employee committing an intentional tort on vulnerable victim during the course of his employment. [52] However, Bazley, supra, was considered in non-employer/employee relationship recently by the Supreme Court in Fullowka v. Pinkerton’s of Canada Ltd., 2010 SCC (CanLII). In Fullowka, the appellants sought to impose vicarious liability on the national union for the intentional actions of the members of local. The Court concluded that the national union was not vicariously liable and held: [142] The question of whether vicarious liability should be imposed is approached in three steps. First, the court determines whether the issue is unambiguously determined by the precedents. If not, further two‑part analysis is used to determine if vicarious liability should be imposed in light of its broader policy rationales: Bazley v. Curry, 1999 CanLII 692 (SCC), [1999] S.C.R. 534, at para. 15; John Doe v. Bennett, 2004 SCC 17 (CanLII), [2004] S.C.R. 436, at para. 20. The plaintiff must show that the relationship between the tortfeasor and the person against whom liability is sought is sufficiently close and that the wrongful act is sufficiently connected to the conduct authorized by the party against whom liability is sought: Bennett, at para. 20. The object of the analysis is to determine whether imposition of vicarious liability in particular case will serve the goals of doing so: imposing liability for risks which the enterprise creates or to which it contributes, encouraging reduction of risk and providing fair and effective compensation: Bennett, at para. 20. [53] The three step analysis in Fullowka may be summarized as follows: 1. Has the issue of vicarious liability been unambiguously determined by the precedents? 2. If not, has the plaintiff shown that the relationship between the tortfeasor and the person against whom liability is sought is sufficiently close? 3. If the relationship is sufficiently close, is the wrongful act sufficiently connected to the conduct authorized by the parties against whom liability is sought? [54] Turning to the first part of the three step process, as previously explained, Chrysler is not the owner of the motor vehicle for the purposes of the Motor Vehicle Act. However, it is still the legal title holder to the vehicle. [55] Vicarious liability does not exist at common law between the owner of motor vehicle and its driver. In Co-operators Insurance Association v. Kearney, 1964 CanLII 21 (SCC), [1965] S.C.R. 106 the Supreme Court of Canada held at p. 115: ... There was not, of course, at common law, any liability upon the owner of motor vehicle for damages caused by the negligent driving of that vehicle when the driving was not that of the owner or of his servant. [56] Similarly, in Dawson v. Mitchell (1985), 1985 CanLII 1118 (AB QB), 59 A.R. 325, the Alberta Court of Queen’s Bench held: [13] At common law there was no liability on the owner of motor vehicle, merely by reason of ownership, for injuries which the motor vehicle might occasion while being driven by another: ... [57] The lender of vehicle is also not liable for the negligent driving of borrower at common law. In Fraser v. Ross (1983), 59 N.S.R. (2d) 254 (S.C.) Justice Burchell remarked as follows at 10: The mere loan of vehicle for the convenience of the borrower and the giving of consent or permission to operate it were not sufficient to establish an agency or master and servant relationship at common law. Such relationship only came into existence if the servant or agent was on the business of his principal or master, was carrying out his instructions or was under his direction and control. [58] Similarly, an individual who rents vehicle to another is not vicariously liable for the negligence of the renter at common law. This is true even when the vehicle is rented for use as commercial taxi. In Nixon v. Robert (1983), 1983 CanLII 2826 (NS SC), 59 N.S.R. (2d) 245 (S.C.). O’Brien rented vehicle to Robert to use in taxi service. Robert was involved in an accident with the Plaintiff, and the Plaintiff sued O’Brien and Robert. The Plaintiff claimed O’Brien was vicariously liable for the negligence of Robert. Justice Hallett dismissed the claim against O’Brien, finding that he was not vicariously liable for the negligence of Robert. [59] am satisfied that the authorities unambiguously establish that Chrysler is not vicariously liable for the negligence of Giffen. There is no common law of vicarious liability between the owner of a vehicle and its driver. The fact that the vehicle is subject to the lease does not change the basic relationship between Chrysler, the owner of the vehicle at common law and Giffin, the driver. [60] Although the question of vicarious liability is settled by the first step of the Fullowka three-step analysis, it would also fail on the second and third steps. [61] In Fullowka fired striker evaded security and entered mine, set an explosive device, and as he intended, it was detonated by trip wire killing nine miners. Their survivors and another worker sued the national union, inter alia, alleging vicarious liability. [62] After citing 142 above, the Court concluded that the relationship between the national union and the union members was not sufficiently close to justify imposing vicarious liability on the national union for their unlawful acts. [63] Similarly, in the present case, the relationship between Chrysler and Giffin is not sufficiently close to justify imposing vicarious liability for his negligent acts. [64] Vicarious liability for leasing companies, like Chrysler, does not align with the authorities, the leasing company does not control the use of the leased vehicle, leasing, in and of itself does not create an “enterprise risk” and, Giffin’s manner of operating the motor vehicle is in no way furthering Chrysler’s interests. Finally, Chrysler did not have any control, or ability to control the manner in which the vehicle is being driven by Giffin. [65] In short, the policy considerations set out in Bazley, supra, do not exist for imposing vicarious liability on Chrysler. [66] Gilbert, in her factum, suggests that to determine vicarious liability we must ask and answer the questions raised by the “Bazley tests”. With respect, the analysis mandated by Bazley, and subsequently Fullowka, does not mandate that the questions in the form posed by the plaintiff be invariably answered as kind of rigid template in the analysis of whether party is vicariously liable for the wrongful acts of another. Bazley was commenting on the relevant factors to be considered when determining vicarious liability related to intentional torts in an employment setting (see Bazley, supra, p. 41). The relevant factors will vary on case-by-case analysis. The trial judge committed no error in his determination that Chrysler was not liable for the negligence of Giffin. [67] For all of these reasons, would dismiss these grounds of appeal. [68] would dismiss both appeals with costs to the respondents in the amount of $1,500.00 plus taxable disbursements; one-half of that amount is to be paid by each appellant. Farrar, J.A. Concurred in: MacDonald, C.J.N.S. Saunders, J.A. NOVA SCOTIA COURT OF APPEAL Citation: Gilbert v. Giffin, 2010 NSCA 95 Date: 20101125 Docket: CA 319253 Registry: Halifax Between: Phyllis Gilbert v. James Douglas Giffin, Daimler Chrysler Services Canada Inc., and Coseco Insurance Company Respondents Docket: CA 319252 Between: James Douglas Giffin v. Daimler Chrysler Services Canada Inc., Coseco Insurance Company and Phyllis Gilbert Respondents Revised Judgment: The text of the original judgment has been corrected according to this erratum dated January 17, 2011 Judges: MacDonald, C.J.N.S.; Saunders and Farrar, JJ.A. Appeal Heard: October 6, 2010, in Halifax, Nova Scotia Held: Appeals dismissed per reasons for judgment of Farrar, J.A.; MacDonald, C.J.N.S. and Saunders, J.A. concurring. Counsel: John P. Barry, Q.C. and Nadia M. MacPhee, for the appellant Phyllis Gilbert W. Augustus Richardson, Q.C., for appellant James Giffin C. Christopher Robinson, Q.C. and Ian Dunbar, for the respondent Daimler Chrysler Services Canada Inc. M. Darlene Willcott, for the respondent Coseco Insurance Company not appearing Reasons for judgment: [69] In paragraph [53], sub-paragraph 3., second line, substitute the word “contact” with the word “conduct”.

The first defendant was the lessee and driver of a motor vehicle that was involved in a motor vehicle accident with the plaintiff. The second defendant was the lessor of the vehicle. The plaintiff brought an action against both the lessor and lessee, arguing that the second defendant was liable, both as the owner of the vehicle under the Motor Vehicle Act and pursuant to common law vicarious liability, for the lessee's negligence. The second defendant successfully applied for summary judgment, with the court finding that the lessor was not liable under the Motor Vehicle Act as the lease was not a 'rental contract' as defined in s. 62 of the Act and the lessor was not an 'owner' as defined in s. 2(ak) and the current state of the law did not suggest that a claim of vicarious liability had a real chance of success between a lessor and lessee. Both the plaintiff and the first defendant appealed. Appeal dismissed; the reverse onus provision in s. 248 does not apply in this case; the argument that the lease was not a conditional sales agreement but rather a rental agreement had no real chance of success and the fact that a vehicle is subject to a lease does not change the fact that there is no vicarious liability at common law between the owner and the driver of a vehicle.

7_2010nsca95.txt

J. 2000 SKQB 190 QB A.D. 2000 No. 49/2000 J.C.M.J. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF MOOSE JAW BETWEEN: ROYAL BANK OF CANADA, and GERARD ROBERT ALDRIDGE, RESPONDENT R. Shawn Smith for Applicant Gerard R. Aldridge for self FIAT MACDONALD, J. April 26, 2000 This application under Section 2 of The Saskatchewan Farm Security Act requires consideration of the following points in relation to the provisions of Act; 1) The purpose of The Saskatchewan Farm Security Act as set out in Section of the Act. 2) The motion materials filed by the applicant are deficient and ought to a least include; a) copy of the notices of intention with proper proofs of service. b) copy of the documents preporting to be the “equitable mortgage” to which the materials filed refer. (2) c) certified copy of the title to the land in question to establish that the “equitable mortgage” is registered and that the proper parties are before this court. d) all material intended by the applicant to be used to discharge the burden of proof described in Section 18 of the Act. e) specific deposition as to whether the land in question is or has been “homestead”. 3) The Farm Land Security Board ought to complete it mandatory tasks under Section 12 under the Act and provide its report in the format described in the legislation. The apparent refusal by the respondent to provide information should not be allowed to derail the process of financial review as information is available from other sources to deal with the matters in Section 12 (12)(a) and (b). The review if necessary could express the limitations evident from any refusal by the respondent to participate. The Board may apply incentives to the respondent to participate by following the procedures in Sections 12(4), (5) and(7) of the Act. 4) The deficiency in the applicant’s motion might ordinarily merit simple dismissal of the application, but Section 20 of the Act would then give the respondent grace period of one year. This result would be unwarranted given that the scheme of the legislation is to encourage discussions between debtors and creditors and the only material before me indicates that the respondent has refused to participate in the discussions on the mortgage issues. 5) Accordingly, the application is adjourned to August 21, 2000 at 1:30 p.m. and leave is given to each of the applicant and respondent to file further materials. The Farm Land Security Board is requested to provide its report to the court following the procedures set out in Section 12 of the Act, by that same date. 6) No costs to any party. 7) The registrar is instructed to send copy of this fiat to the Farm Land Security Board.

This application under s.2 of the Saskatchewan Farm Security Act (SFSA) requires the Court to consider a number of points in relation to the act. The applicant's materials are deficient. Several necessary documents must be filed. In addition, the Farm Land Security Board has not completed its mandatory tasks under the Act. HELD: Application adjourned and leave is given to each party to file further materials. The Farm Land Security Board is requested to provide its report to the Court. Ordinarily, the deficiency in the applicant's motion might merit dismissal, but the Act would then give the respondent a 1 year grace period. This result is unwarranted given that the scheme of the legislation is to encourage discussions between debtor and creditor and the respondent has refused to discuss mortgage issues. Further, the respondent's refusal to provide information should not be allowed to derail the process of financial review by the Farm Land Security Board. No costs to any party.

6_2000skqb190.txt

J. Court No. 1690 IN THE COURT OF QUEEN'S BENCH PROVINCE OF SASKATCHEWAN IN BANKRUPTCY IN THE MATTER OF THE BANKRUPTCY OF DOMINIC EUSTACE BETWEEN: DOMINIC EUSTACE and HER MAJESTY THE QUEEN in Right of Canada, as represented by the Minister of National Revenue OBJECTING CREDITOR and PEAT MARWICK THORNE INC. TRUSTEE Court No. 191 IN THE MATTER OF THE BANKRUPTCY OF VERONICA ANN EUSTACE BETWEEN: VERONICA ANN EUSTACE and HER MAJESTY THE QUEEN in Right of Canada, as represented by the Minister of National Revenue OBJECTING CREDITOR and PEAT MARWICK THORNE INC. TRUSTEE C.I. McCannell on behalf of the bankrupts G. Berscheid on behalf of Her Majesty the Queen Ian Schofield on behalf of the trustee JUDGMENT MacPHERSON C.J.Q.B. March 1, 1996 To avoid needless duplication will refer throughout to Dr. Dominic Eustace as "Dr. Dominic" and to Dr. Veronica Ann Eustace as "Dr. Veronica". The two doctors are both medical practitioners and have been practicing medicine together in Wolseley, Saskatchewan, since 1973. Dr. Dominic is 51 years of age and Dr. Veronica 49 years of age. They have seven children, five of whom are 18 years of age or older and are studying for undergraduate or post-graduate university degrees. The other two children are aged 14 and 16; the younger lives at home, attending school in Wolseley, and the other is studying grade 12 in France. Each doctor filed in bankruptcy in 1995 and in eachcase the major unsecured creditor is Revenue Canada. Neither doctor meets the 50% threshold of ss. 173(1)(a) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, as amended by S.C. 1992, c. 27 ("the Act"), and it is possible, perhaps likely, that each of them has committed one or more of the sins outlined in ss. (b) to (m). However, there has been no suggestion of any knowing dishonesty on the part of either of them. As in many bankruptcies, they have both been poor business managers for example, Dr. Dominic at the outset of the bankruptcy declared $371,450.00 of unsecured creditors, but the trustee has determined that the actual amount is $138,109.70 of which $11,764.74 is the claim of Revenue Canada. In Dr. Veronica's case, she declared unsecured creditors of $386,450.00, whereas the trustee has determined the actual amount is $132,386.70, which is entirely the Revenue Canada claim. In spirited argument presented by Mr. Berscheid, counsel for Revenue Canada, he pointed out, and it was not disputed, that the combined medical earnings of the two doctors in the four years prior to the bankruptcy averaged about $18,000.00 per month, and the expected after-tax family income averaged $10,200.00 per month. There seems no reason why this income level cannot be maintained. Based on RevenueCanada\'s Superintendents Guideline of Payments (which I takeinto account along with all other factors), this monthlyfamily income after-tax and reasonable living expenses shouldleave $3,349.00 per month for the benefit of creditors. Hewent on to argue that as a condition of discharge, the twodoctors should make combined payments of $3,349.00 per monthfor a period of 36 months for a total of $120,564.00 over thethree year period. I have carefully considered Mr. Berscheid\'spresentation as well as the written brief which he filed andthe numerous cases referred to therein, but I am of the viewthat the payments proposed by him are unreasonably high in allthe circumstances. In reaching this conclusion, have taken into account the expenses of the doctors as set out in their affidavits and the able argument of their counsel, Mr. McCannell. The doctors have heavy family responsibilities, although it is at least questionable the extent to which they should be expected to support their children who are studying at the university level. As to the daughter who is presently studying for her grade 12 in France, although no evidence was given as to the cost of maintaining her, it is apparent to me that the cost must be substantially higher than maintaining her at their home in Wolseley where she can also study at the grade 12 level. The doctors must also consider the financial wisdom of maintaining two substantial homes, one in Wolseley and one in Saskatoon, both of which carry heavy mortgage payments, as well as municipal taxes and normal upkeep. They must also take steps to curtail their other monthly spending. Dr. Dominic has made a substantial contribution toSaskatchewan, both locally and provincially. He has served as President of the Saskatchewan College of Physicians and Surgeons, he is presently mayor of the Town of Wolseley and he has contributed in many other ways as well for these contributions, he is entitled to great credit. However, thisdoes not relieve either doctor from making reasonable paymentsto the trustee as a condition of their discharge from thebankruptcy. They have wisely entered into an agreement with chartered accountant to act as their financial manager, and copy of that agreement dated February 9, 1996, is exhibited to Dr. Dominic's affidavit; this is recognition of their past financial mismanagement and is commendable arrangement for them given their past difficulties. It is my hope that the doctors will continue their medical practice in Wolseley believe can take judicial notice of the fact there is anything but an overabundance of doctors in rural Saskatchewan. also believe they will be better able to continue their Wolseley medical practice if the stigma of their bankruptcies is removed. For this reason Ifeel the consent judgment option under ss. 172(2)(c) of theAct is most appropriate, both for the doctors and thecommunity they serve. Having taken into consideration all of the foregoing, order as follows: 1.In respect of the bankrupt, Dr. Dominic Eustace: (a)If he consents to judgment there will be ajudgment in favour of the trustee in the amount of $45,000.00to apply to the unsecured claims. (b)The judgment shall not be enforced so long as thebankrupt pays to the trustee the sum of $1,250.00 per month onthe first day of each and every month commencing on the firstday of April, 1996, and continuing thereafter on the first dayof each month for a total period of 36 months. (c)The judgment will not bear interest. (d)The trustee shall apply the said payments firstly in payment of its reasonable fees and distribute the balance from time to time pro rata amongst the unsecured creditors. (e)Upon the bankrupt consenting to this judgment, thebankrupt shall receive an absolute discharge. 2.In respect of the bankrupt, Dr. Veronica Ann Eustace: (a)If she consents to judgment there will be ajudgment in favour of the trustee in the amount of $45,000.00to apply to the unsecured claim. (b)The judgment shall not be enforced so long as thebankrupt pays to the trustee the sum of $1,250.00 per month onthe first day of each and every month commencing on the firstday of April, 1996, and continuing on the first day of eachmonth thereafter for a total period of 36 months. (c)The judgment will not bear interest. (d)The trustee shall apply the said payments firstly in payment of its reasonable fees and distribute the balance from time to time to the sole unsecured creditor, Revenue Canada. (e)Upon the bankrupt consenting to this judgment, thebankrupt shall receive an absolute discharge. C.J.Q.B. In Bankruptcy

Two doctors filed in bankruptcy in 1995 and in each case the major unsecured creditor was Revenue Canada. Neither met the 50% threshold of ss.173(1)(a) of the Bankruptcy and Insolvency Act and each likely committed one or more acts of bankruptcy under ss.(b) to (m). However there was no suggestion of dishonesty. The combined medical earnings in the four years prior to the bankruptcy averaged $18,000 per month and the after-tax family income averaged $10,200 per month. HELD: A consent judgment under ss.172(2)(c) was ordered such that if each doctor consented to the payment of $45,000 to be paid at a rate of $1,250.00 per month for 36 months without interest there would be an absolute discharge. 1)The payments proposed by Revenue Canada of $3,349.00 per month were unreasonably high in all the circumstances. 2)Their contributions to the community did not relieve either doctor from making reasonable payments to the trustee as a condition of their discharge from the bankruptcy.

3_1996canlii6774.txt

CANADA PROVINCE OF NOVA SCOTIA 1992 S.H. 72115 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: CONTINENTAL SEAFOODS LIMITED and THE MINISTER OF FINANCE Respondent HEARD: before the Honourable Mr. Justice F. B. W. Kelly, Supreme Court of Nova Scotia, Trial Division September 5, 1991 in Chambers. DECISION: September 5, 1991 COUNSEL: Mr. Harvey Morrison, Esq., for the applicant Mr. Duncan Beveridge, Esq., for the respondent DECISION RELEASED: March 25, 1992 CANADA PROVINCE OF NOVA SCOTIA 1992 S.H. 72115 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: CONTINENTAL SEAFOODS LIMITED Appellant and THE MINISTER OF FINANCE Respondent KELLY, J.: (Orally) This is an appeal pursuant to s. 19 of the Health Services Tax Act, R.S.N.S. 1967, c. 126 in respect of a decision of the Provincial Tax Commission to cancel a claim for a refund of health services tax by the applicant, Continental Seafoods Ltd. The Act has since been significantly amended by R.S.N.S. 1989, c. 198. Continental had applied to the Commission for a refund of the tax paid on certain refrigeration equipment which was installed in a new facility for pickled whole herring in Shelburne, Nova Scotia. This product was mainly to be supplied on contract to the Soviet Union. The contract contained stringent quality specifications governing the processing of this product which included a phase where the pickling occurs in a cooler facility for 28 to 45 days at a strictly controlled temperature of 0ºC to ‑2ºC. The new facility comprises roughly 38,000 square feet and includes three large cold rooms of similar capacity and dimension. The plant was intended to be used mainly to produce barrels of pickled salted herring for sale to Russia and eastern European countries. The plant was to be used both for production and also for storage of products produced elsewhere by Continental or its related companies. The cold storage rooms can be used for (a) refrigerator rooms for temperature control of the processing of pickled herring (b) cold storage of pickled herring or variety of products, and ©) storage of other frozen products. In fact, one of the cold rooms was used only for storage of frozen products that belonged to Continental and related companies and unrelated companies on fee for storage basis. When pickled herring is not being processed, the refrigeration equipment is used to provide air conditioning and cold storage capacity for Continental or these companies. In 1988 Continental contracted with J. H. Lock Sons Limited to furnish the labour, materials and equipment for the refrigeration system in the plant. The contract price of $550,467 included all provincial and federal government sales tax. Germain Mechanical and Electrical Limited acted as subcontractor for J. H. Lock to complete the contract work on the refrigeration system. It also contracted directly with Continental for various electrical and mechanical plumbing tasks. Health services tax was paid by Germain and J. H. Lock or subcontractors used by them on material and equipment used in relation to the construction of the cold storage processing plant at Shelburne. In early 1989, Continental applied for refund of health services tax paid on the refrigeration equipment in the amount of $58,791, which included work done by the two contractors, J. H. Lock and Germain. The Provincial Tax Commission advised Continental that the refund claim had been "cancelled as contract was for New Cold Storage System which does not qualify for exemption under s. 10(1)(h)(I)". Relevant parts of this section read as follows: 10(1) The following classes of tangible personal property are specifically exempted from the provisions of this Act: nan (h) machinery and apparatus and parts thereof which are to be used or which are used in the manufacture or production of goods for sale; (i) materials consumed or expended in the manufacture or production of goods for sale; (j) goods purchased for the purpose of being processed, fabricated, or manufactured into, or incorporated into goods for the purpose of sale; Section 1(ca) provides as follows: (ca) 'manufacture or production' means the transformation or conversion of raw or prepared material into different state or form from that in which it originally existed as raw or prepared material but does not include production or processing; Thus, under s. 10(1)(h) and (I) of the Act machinery and materials used in the 'manufacture or production' of goods for sale are exempt from taxation. Continental forwarded Notice of Objection relating to the cancellation to the Provincial Tax Commissioner which stated in part: In further support of our submission, we refer you to the Northland Fisheries decision, dated November 25, 1986 from which we quote "Raw fish must be protected from spoilage. Without the insulated boxes" (or in the instant case, refrigeration equipment) the fish would be transformed or converted into rather unmarketable product. Where it is necessary to move the raw fish from one area to another, these insulated boxes" or in the instant case, the refrigeration equipment "are necessary apparatus used to produce saleable product. nan In closing, it is readily understood that some of this refrigeration equipment capacity will serve as cold storage only while the main purpose for the expansion was to provide for the herring pickling operation and other curing and drying of salt fish as referred to in Mr. MacLean's letter. This firm did expect some reduction in the total amount claimed but however did not expect complete cancellation thereof. May we therefore suggest as compromise that the client is prepared to accept 50% safety margin to ensure that your Division has no unacceptable revenue loss. The Commissioner allowed the objection in part and indicated that rebate of $14,467.43 would be paid to Continental. This decision was based on disallowing any exemption for the mechanical plumbing and electrical services provided by Germain and by determining that only portion of the refrigeration capacity was used for production purposes. The Commissioner allowed 35% of the $41,335.50 tax paid by J. H. Lock to be rebated in the amount of $14,467.43. An appeal from this decision was made to the Minister of Finance pursuant to s. 18(5) of the Act in July of 1989 and the Minister discussed this appeal in decision dated January 26, 1990. This decision concludes as follows: Consideration of the exemption from health services tax claimed by the Appellant in respect of the equipment in the context of clauses 10(1)(h) and 1(ca) of the Act, as interpreted by the Supreme Court of Nova Scotia in Northland Fisheries Limited v. Nova Scotia (Minister of Finance), leads me to conclude that in order to be eligible for exemption from health services tax pursuant to clause 10(1)(h) of the Act, machinery and equipment must be used in the actual transformation or conversion of the product actually being produced for sale. Machinery or apparatus used prior or subsequent to that actual transformation or conversion is not eligible for the tax exemption. The function described by the Appellant of the equipment cannot, in my opinion, be reasonably said to be fully part of the manufacture or production of its product so as to bring it within, subject to the definition in clause 1(ca), the exemption available in clause 10(1)(h) of the Act. The appeal will therefore be dismissed and the assessment for health services tax, as varied by the Provincial Tax Commissioner, upheld. The appellant contends that the Minister and the Commissioner were incorrect in not allowing the exemption for the refrigeration equipment in full. The submission is that it was inappropriate to apportion the tax to be refunded if the equipment is exempt and is used in any degree in the manufacturing process. In Silver Spoons Desserts Enterprises Ltd. v. Nova Scotia (Minister of Finance) (1989), 89 N.S.R. (2d) 363; 227 A.P.R. 363 (S.C.A.D.) Jones, J.A. reviewed the history of the legislation and particularly s. 10(1)(h)(I) and (j) and noted that the exemption does not depend on the degree to which the goods are used in the manufacturing process. At p. 375 he noted with approval the comments of Jones, J. in Forest Products Terminal Corporation Ltd. v. New Brunswick (1985), 58 N.B.R. (2d) 371, at p. 380: Once it has been established that the machinery or apparatus is 'used directly in the process of manufacture or production, this is sufficient. The use of the machinery or apparatus need not be exclusively in the manufacturing or production process nor does it matter the percentage of use that it attributed to such process as opposed to other processes'. Irving Oil Limited v. Provincial Secretary of the Province of New Brunswick, 1980 CanLII 176 (SCC), [1980] S.C.R. 787, 29 N.B.R. (2d) 529; 66 A.P.R. 529; 31 N.R. 291; Pigeon, J., pp. 537 and 538 N.B.R.; Re Michelin Tires Manufacturing (Canada) Ltd. (1976), 15 N.S.R. (2d) 150; 14 A.P.R. 150; Cooper, J.A., p. 168. In Northland Fisheries Limited v. Nova Scotia (Minister of Finance) (1986), 77 N.S.R. (2d) 361; 191 A.P.R.361, Maclntosh, J. stated at pp. 364‑365: If it is the aim of the Legislature to narrow the scope of tax exemptions in this area, it is incumbent upon it to state its aim with clarity. Elimination of the word 'process' by the 1982 amendment tends to accomplish this aim to some degree. 'process' normally refers to some continuous operation and includes an operation which is merely incidental to the main purpose which is being served. (per Stroud's Judicial Dictionary (4th Ed.), p. 2130.) nan Despite its inept drafting, the definition section tends to exempt from taxation only that machinery or apparatus involved in the actual transformation or conversion of the material. Machinery or apparatus used prior or subsequent to this period of 'manufacture or production' is now, by virtue of the said 1982 amendment, not tax exempt. On the facts before him, Macintosh, J. held that insulated fish boxes were "involved in the active transformation" of fish because they were used to transform or convert the fish into different state; from perishable to non‑perishable. Here the use of the cold rooms was clearly part of the pickling process. The specification of the Russian contracts required that a significant part of the processing occur in a controlled almost freezing temperature, making it necessary for the use of refrigeration equipment. The use of a cold room in the process performed a function that was part of the manufacture or production of the product, pickled herring. With respect, the Minister was wrong in concluding otherwise. The Minister also upheld the Commissioner's decision to apportion the tax thus appearing to imply that the refrigeration facility was, at least in part, exempt from tax. The essence of the Commissioner's decision was that as part of the refrigeration process only was used in the manufacture or production of the pickled herring, he could exempt that portion and tax the rest. It would appear that the practice of apportionment of this kind has been rejected in Silver Spoons Desserts Enterprises Limited v. Nova Scotia (Minister of Finance), supra, (1989), 89 N.S.R. (2d) 363; 227 A.P.R. 363 (S.C.A.D.) which determined there is no power under the Act for the Commissioner to assess tax on prorated basis based on the extent the machinery or equipment is used in the manufacturing or production process. It would thus appear that even though only part of the refrigeration equipment was used in this process, all of it is exempt. Counsel for the Minister argued at the hearing that Continental was not entitled to an exemption for the refrigeration unit. The submission is that Continental paid no Health Services tax in that it was directly paid by the two contractors, J. H. Lock and Germain. The thrust of the submission was that the contracting companies were the "purchaser" under the Act and therefore they, not Continental, were the only parties with the right to seek refund. As authority for this proposition referencewas made to Installations Electriques, G. Bradley Ltee. v. Nova Scotia (Attorney General) (1987), 77 N.S.R. (2d) 327; 191 A.P.R.. 327 (S.C.T.D.); leave to appeal refused 89 N.S.R. (2d) 270. The applicant protests that this is new matter, not presented by the parties or considered by the Commissioner or the Minister, and is not proper consideration on appeal. Section 19 deals with the right of appeal from the decision of the Minister and the powers of the court on appeal are provided in 19(4); (4) The judge shall hear the appeal and the evidence adduced before him by the appellant and Her Majesty in summary manner, and shall decide the matter of the appeal. Upon the request made to the judge by any party to the appeal, the hearing may be held in camera. It is argued by the respondent that s. 19(4) should be applied in liberal way to allow additional grounds to be argued at this stage. This is judicial proceeding where the legislation does not provide much by way of procedural requirements and the practice of counsel is to accommodate the deficiencies of the Act to ensure as much procedural fairness as possible. In the absence of consent from the other party, do not feel it is appropriate in the circumstances to allow party to raise new ground not submitted to or argued before the Minister or Provincial Tax Commissioner. The information that was before the Commissioner and the Minister was the same information presented to this court. There well may be appropriate circumstances where the court might allow such new submission, but do not feel this is one. See Ponnamma v. Arumogam, [1905] A.C. 383 (C.P.C.), National Telephone Company Limited v. Postmaster General, [1913] A.C. 546 (H.L.) and United Dominions Trust Ltd., [1954] W.L.R. 1345 (M.R.). In the latter case Evershed M.R. stated at p. 1351; As matter of principle, the Court of Appeal has always been strict in applying the rule that an appellant from county court, unless the other party consents, cannot be allowed in this court to raise new point of law not raised below. After all, the county court is intended to serve litigants of relatively small means, and it is not in accordance with the public interest that party, who has fought case in county court and been defeated, should then come to this court and raise in this court new point, and put his case in an entirely different way as matter of law and so make the other party, hitherto successful, litigate the matter again at the risk of having to pay the costs not only below but in this court. The result of my findings above is that the decision of the Provincial Tax Commissioner, as upheld by the Minister, to allow refund on the refrigeration equipment is approved, but that the tax paid should not have been apportioned based on the use of the equipment in production. This would mean that the tax paid relevant to the J. H. Lock contract in the amount of $41,335.50 should be refunded. In the result, the appeal is allowed and the appellant is awarded its costs. J. Halifax, Nova Scotia CANADA PROVINCE OF NOVA SCOTIA 1992 S.H. 72115 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: CONTINENTAL SEAFOODS LIMITED and THE MINISTER OF FINANCE DECISION OF JUSTICE KELLY

The plaintiff appealed the defendant's decision to grant a partial tax refund only under the Health Services Tax Act. The plaintiff had sought a full refund of tax paid on refrigeration equipment at a pickled herring plant (whose product was to be supplied on contract overseas) on the ground the equipment was used in the 'manufacture or production of goods for sale.' The contract stipulated that most of the processing occur at controlled cold temperatures. The defendant apportioned tax based on the time the equipment was used in the actual 'transformation or conversion' of the product. For the plaintiff, that (1) the tax exemption did not depend on the extent to which the equipment was used in the manufacturing process; and (2) since the contract required most of the process to occur under refrigeration, the use of a cold room was part of the 'manufacture or production' of the product.

e_1991canlii4217.txt

J. 2000 SKQB 355 Q.B.J. A.D. 1998 No. 32 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: HER MAJESTY THE QUEEN and BYRON LESLIE DERKSEN Q.B.J. A.D. 1998 No. 32 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: HER MAJESTY THE QUEEN and KERRY PAUL BEGRAND-FAST Mark Brayford, Q.C. Hugh M. Harradence, Q.C. for the applicants W. Rod Donlevy for the Crown FIAT LAING J. August 16, 2000 [1] The applicants, who are charged separately with cultivating marihuana and possession of marihuana have plead not guilty to the charges. They are scheduled for separate trials this fall before Judge and jury. As is the practice in this jurisdiction, defence counsel have brought a Charter motion in advance of jury selection to set aside: (1) A section 186 CCC 60 day authorization for electronic surveillance on each accused dated January 30, 1997 primarily directed at their residences and their cell phones. (2) A section 487.01(4) 9 day video surveillance authorization dated March 19, 1997 for the residence of the applicant Derksen authorizing the observance of the applicant Begrand-Fast. (3) A search warrant to search the residence of the applicant Derksen dated April 1, 1997 which resulted in the seizure of 365 marihuana plants and led to the present charges. [2] number of grounds were advanced by defence counsel which will be dealt with more specifically hereinafter. In general terms it is the position of the applicants that the authorization for electronic surveillance should be set aside, and as information obtained from the electronic surveillance was utilized in obtaining the video surveillance warrant and the subsequent search warrant both of these warrants should also be set aside on the basis they are derivative of the electronic authorization which is alleged to be unlawful. The applicants seek to have the evidence obtained pursuant to the authorizations and warrant excluded from trial, and state it is also an appropriate case to direct a stay of proceedings on all charges against both applicants. [3] In addition the applicants seek to set aside the search warrant on the basis that police officers allowed two news media camera crews onto the Derksen premises to film during the course of the search. It is alleged that this action on the part of the police rendered the search unreasonable under s. 8 of the Charter. In this respect the applicants rely on the British Columbia Court of Appeal decision of R. v. West (1998), 1997 CanLII 3792 (BC CA), 12 C.R. (5th) 106. Preliminary Inquiry Evidence [4] At the outset of the hearing Crown counsel took exception to the fact that applicants’ counsel were relying on portions of questions and answers from the preliminary inquiry in support of their application. indicated to applicants’ counsel that preliminary inquiry evidence could not be considered for admissibility until it was made evidence on this application which would require that those portions of the preliminary inquiry transcript sought to be relied upon should be made evidence in this proceeding by way of an affidavit attaching the same. Applicants’ counsel undertook to do so and the argument proceeded on the assumption they would, and this undertaking has been complied with. [5] Crown counsel’s position was that evidence tendered at this hearing is part of the trial evidence and as such should be tendered viva voce, and in any event evidence given at the preliminary inquiry should not be used as trial evidence in the absence of any of the exceptions justifying admission of preliminary inquiry evidence. Crown counsel candidly agreed that the Crown often consents to the use of preliminary inquiry evidence on Charter applications such as this, but maintains that where the Crown does not agree, the Court should apply the normal rules of evidence. [6] Applicants’ counsel stated that in his experience the Crown usually agreed to the admissibility of preliminary inquiry evidence on this type of Charter application and also relied on an earlier fiat of Grotsky J. of this court in Stensrud v. R., 1986 CanLII 3310 (SK QB), [1987] W.W.R. 234. That was case that dealt with the old “Wilson” type of application where it was necessary for applicant defence counsel to establish prima facie case of fraud, material non-disclosure or misleading disclosure before the sealed authorization packet could be opened up to determine whether in fact there had been such conduct on the part of the police officers obtaining the authorization. Grotsky J. relied on previous Ontario decisions to point out that if defence counsel was not entitled to explore such matters at the preliminary inquiry it would be difficult if not impossible in most cases to establish the necessary prima facie grounds for opening up of the sealed packet. He held that it followed that once such cross-examination had occurred at the preliminary inquiry that evidence may be used on the application for review of the authorization. [7] The Ontario Court of Appeal in the recent decision of R. v. Dawson (1998), 1998 CanLII 1010 (ON CA), 123 C.C.C. (3d) 385 ruled that preliminary inquiry judge does have the right to grant leave to allow the cross-examination of witnesses with respect to an authorization for electronic surveillance using the same criteria set out by Sopinka J. in R. v. Garofoli (1990), 1990 CanLII 52 (SCC), 60 C.C.C. (3d) 161 (S.C.C.) at p. 198. At p. 198 Sopinka J. stated: With respect to prolixity, am in favour of placing reasonable limitations on the cross-examination. Leave must be obtained to cross-examine. The granting of leave must be left to the exercise of the discretion of the trial judge. Leave should be granted when the trial judge is satisfied that cross-examination is necessary to enable the accused to make full answer and defence. basis must be shown by the accused for the view that the cross-examination will elicit testimony tending to discredit the existence of one of the pre-conditions to the authorization, as for example the existence of reasonable and probable grounds. When permitted, the cross-examination should be limited by the trial judge to questions that are directed to establish that there was no basis upon which the authorization could have been granted. The discretion of the trial judge should not be interfered with on appeal except in cases in which it has not been judicially exercised. While leave to cross-examine is not the general rule, it is justified in these circumstances in order to prevent an abuse of what is essentially ruling on the admissibility of evidence. Carthy J.A. speaking on behalf of the Court in R. v. Dawson, supra, concluded: My conclusion is that given the 1993 amendments to s. 187 of the Code, there is no reason that the granting of leave to cross-examine should be the preserve of the trial judge. Why should legitimate discovery be delayed? Why should provincial court judge not be permitted to apply very simple test to assure against prolixity, irrelevance, and well-known policy concerns? can see none and s. 540(1)(a) is strong directive to that end. This should not be considered as usurpation of the trial judge’s function. Cross-examination will disclose facts to the accused, but they will only become admissible at trial by leave of the trial judge. [8] Where leave is granted at the preliminary inquiry stage to conduct cross-examination of police witnesses with respect to an authorization as it was in this case, it is not obvious why such evidence should not be admissible on an application at trial to set aside the authorization, bearing in mind the Crown has the right to call evidence to expand, explain or add to the evidence elicited at the preliminary inquiry. It would appear to be an absolute waste of time and money to require duplication of such evidence on the Charter hearing. [9] It was ruled that the evidence given at the preliminary inquiry relevant to this application was admissible, subject to the right of the Crown to call amplification evidence. In this case the Crown did not do so. The Edited Transcript [10] In this matter, the Crown produced to defence counsel an edited copy of the affidavits used to obtain the electronic surveillance and video surveillance warrants as part of its disclosure. The editing included deletion of all dates on which the police obtained information and certain other material presumably deleted to protect the identity of the one principal source of information that there was “grow” operation at the Derksen residence located on an acreage in the Vanscoy district of Saskatchewan. Applicants’ counsel did not apply pursuant to s. 187(7) for better disclosure of the edited portions of the affidavit. [11] In R. v. Garofoli, supra, Sopinka J. in outlining the procedure to be followed noted at p. 351 that if the Crown can support the authorization on the basis of the material as edited, the authorization is confirmed. However, if the editing renders the authorization insupportable, then the Crown may apply to have the trial judge consider so much of the excised material as is necessary to support the authorization. No such application was made by the Crown in this instance. The affidavit in support of the authorizations in this matter are therefore to be considered solely on the basis of the edited copies. Authorization for Electronic Surveillance [12] The primary ground advanced by the applicants in their submissions to set aside the authorization for electronic surveillance is the police did not try any investigative procedures available to them before applying for the authorization, and as the matter was not urgent s. 186(1)(b) of the Criminal Code was not complied with. The Affidavit in Support [13] The affidavit in support of the authorization in this matter was not lengthy consisting of eight pages, only three and one half of which deal with factual information. Leaving aside information related to addresses, telephone numbers, vehicles, etc., the portions of the affidavit that identify the commission of an offence or the identity of persons who might be involved in such offence are set out hereafter. 2. THAT on 1996, was informed by Cst. Keith ATKINSON of the Saskatoon Police Service, who verily believed this to be true, that on the 1996, confidential and reliable source advised him that Les DERKSEN is slum landlord and lives on an acreage off the Cominco Mine road on the south side near the top of the hill. DERKSEN has paved race track on his property which he paid cash for and recently purchased new Harley Davidson motorcycle which he also paid cash for. DERKSEN’s only work is as slum landlord and he doesn’t make enough money to afford his lifestyle. 3. THAT on 1996, was advised by confidential and reliable source, who verily believe to be true, that: a) Les [Derksen] and Kerry FAST large marihuana grow site at Les’ residence. Les’ girlfriend, Debbie, is aware of the grow site. b) Les lives on an acreage off the Cominco Mine road about three miles West of Vanscoy, Saskatchewan. d) The residence is white house with large deck sitting on hill surrounded by race track, about three miles West of Vanscoy. e) The heat generated from the grow site is used to heat quonset on the property. f) When the grow site was originally built, Les bypass the electrical meter. THAT have known this source since 1994 and have been the source’s principal handler. This source has been used on numerous occasions and has been accurate and reliable. Throughout this affidavit, in every case where information comes from this informant, has personal knowledge. 8. THAT on 1996, conducted inquiries with Saskatchewan Power Corporation who advised that the account on the acreage located at the R.M. of Vanscoy #345, South-East 1/4, Section 3, Township 35, Range 8, West of the 3rd Meridian is registered to Leslie DERKSEN. The power consumption is read yearly and the yearly consumption rate fluctuated uncharacteristically from 20,093 kw/hr. in 1993; 22,548 kw/hr. in 1994; 40,082 kw/hr. in 1995; and 29,131 kw/hr. in 1996. 9. THAT on 1996, was advised by confidential and reliable source, who verily believe to be true, the same source previously referred to in Paragraph 3, that: a) Les DERKSEN marihuana grow operation at his residence near Vanscoy. The balance of this paragraph consisting of sub-clauses (b) to (h) have been edited out. 13. THAT on 1997, was advised by confidential and reliable source, who verily believe to be true, the same source previously referred to in Paragraph 3, that: a) Les DERKSEN has marihuana plants It will be noted the foregoing factual information with respect to an offence consists of the same source on two occasions in 1996 communicating information about marihuana grow site at the Les Derksen residence, and on one occasion in 1997 advising that Derksen has marihuana plants. Applicants’ counsel suggested that as result of the editing the information in the edited affidavit does not disclose current offence. In their submission, until the blanks were filled in the references could be to the past or to the future. It is not obvious why the Crown edited out the period to which the information relates. With respect to para. 3(a) and 9(a), supra, the edited portion consists of more than one word as evidence by the length of the deletion. However, on the basis of para. 3(a) which states that Les’ girlfriend, Debbie, is aware of the grow site and para. 13(a) that Les Derksen has marihuana plants, hold that the affidavit does disclose current offence. [14] The affidavit goes on in paras. 18 21 to explain why an authorization is being requested. These paragraphs state as follows: 18. THAT am of the opinion that Byron Leslie DERKSEN and Kerry Paul FAST represent an impregnable group of associates and any attempt to have an undercover operator penetrate this group would fail as Byron Leslie DERKSEN and Kerry Paul FAST will only conduct drug business with people they have known for some time. 19. THAT the sources mentioned throughout this affidavit have limited knowledge of Byron Leslie DERKSEN and Kerry Paul FAST’s criminal activity. None of these sources desire to introduce an undercover police officer to Byron Leslie DERKSEN and Kerry Paul FAST as they fear for their safety once their identity becomes known as police agent. 20. THAT surveillance in rural setting will produce limited evidence in relation to Byron Leslie DERKSEN and Kerry Paul FAST’s operations and will immediately tip Byron Leslie DERKSEN and Kerry Paul FAST off that they are under investigation and we would certainly not discover where they transport the marihuana to or from, where they process the marihuana in preparation for sale, how the marihuana is paid for and what money laundering techniques are utilized other than by the interception of private communications. 21. THAT the execution of any search warrant will produce limited evidence in relation to Byron Leslie DERKSEN and Kerry Paul FAST’s operations and will immediately tip Byron Leslie DERKSEN and Kerry Paul FAST off that they are under investigation and we would certainly not discover where they transport the marihuana to or from, where they process the marihuana in preparation for sale, how the marihuana is paid for and what money laundering techniques are utilized other than by the interception of private communications. The four foregoing paragraphs are all “boilerplate” as evidenced by the fact that the same four clauses were used by the same officer at about the same period of time in the case of R. v. Dosch (1998), 1998 CanLII 13840 (SK QB), 176 Sask. R. 21 (Sask. Q.B.). It is with respect to the foregoing “boilerplate” paragraphs that the applicants’ counsel cross-examined police officers at the preliminary inquiry. [15] Paragraph 22 of the affidavit then went on to request an authorization permitting the interception of private communications at the residences of each of the accused with view to obtaining evidence in respect of offences contrary to s. (trafficking or possession for the purpose of trafficking), (cultivation), 19.1 (proceeds of crime) and 19.2 (laundering proceeds) of the Narcotic Control Act and “any conspiracy, or attempt to commit, or being an accessory after the fact, or any counselling, procuring or inciting in relation to such offences.” [16] In the cross-examination of Constable Martens as reflected in the preliminary inquiry transcript at pp. 249-250 the following questions and answers appear with respect to the information provided by this source. The in the last well, since you’ve met that source, how many times would you have talked to the source up until January 30th of 1997? Oh, hundreds. Sometimes it was several times day, and then wouldn’t hear anything for weeks. Would you talk to him on the telephone or in person? Both. And when say him, just I, mean person, don’t not necessarily him or as opposed to her. The in relation to this information that this source provided, was it in relation to both Les Derksen and Kerry Begrand-Fast, the source that you got information from directly? Yes. And was it as, if can put it, as general as, as the information that you’d typically been getting? No. The did you consider the information specific enough that you could act upon it to go and do an arrest? The potential was there. That would have been an option, guess. [17] At p. 253 of the transcript Constable Martens confirmed there was not any investigation done other than confirming residences, telephone numbers, and preliminary work done with respect to any application for an authorization for electronic surveillance prior to applying for the authorization on January 30, 1997. At p. 253 of the transcript the following questions and answers appear: Okay, so yeah, that’s, that’s basically it. was wondering, you’ve got the information and basically you didn’t do lot of investigation besides the information that you obtained? And verifying it and confirming and The so, don’t want to belittle this, but you sort of lucked into some information and then as result, chose to then go get an electronic surveillance order to follow that up, is that basically what happened? In nutshell. [18] Constable Martens at p. 341 of the transcript indicated the information received from the source was not acted upon when first received because R.C.M.P. personnel were involved in number of matters and the resources available to install and carry out an electronic surveillance operation were otherwise occupied. At p. 341 of the transcript the following questions and answers appear: So, basically, the police were busy, it was anticipated that this authorization was put was going to take lot of time so it was thought, put it over? Just the resources, not the amount of time it was going to take wasn’t really an issue. Once we are committed to do it, once we had the resources to do it, however long it took. Well Once it started, you don’t stop. Obviously, sir, that the amount of time had an impact because you didn’t have the resources because everybody was busy in 1996. don’t know if follow. think know what you’re saying, but mean, had time to develop the file, but other resources weren’t available. So it got put on hold until such time as resources were available. [19] Constable Martens confirmed that neither of the targets had criminal records, nor were they personally known to him prior to receiving the information from the source. This is why he contacted the police officers referred to in para. of the affidavit. It will be noted this police officer source did not have information indicating Mr. Derksen was involved in the drug trade, although the information he supplied would make this an inference that was available. At pp. 309-310 of the transcript Constable Martens acknowledged: The one of the things that you discovered in this case was there was decided lack of material on police databases about any of these three targets. I’m not saying that there was absolutely nothing about them, but there was very little data about them, is that correct? They were relatively unknown, sure. [20] Constable Martens confirmed in the transcript that no attempt was made to conduct surveillance of the acreage in question. He stated it would have been practically difficult to conduct such surveillance directly on the residence because of the location, and the fact it was the middle of winter. However he agreed that as there was only one road off the main highway to this residence, it would not have been difficult to conduct surveillance of automobiles using this road to determine if any persons known to the drug trade were frequenting the road, or to follow any known vehicle at distance to see if the same entered the acreage area owned by Derksen. He confirmed this was in fact done after the electronic eavesdropping was in effect. At pp. 264-265 of the transcript the following questions and answers appear: Okay. So as far as assessing the connection of either of these two targets to that acreage, that could have been done fairly easily. That goal may have been accomplished quite easily, but there were other objectives. Okay. And as far as assessing just the level of vehicular traffic to the acreage, that could have been done fairly easily as well, how many cars are coming and going to the acreage, that could be done quite easily? Yeah, not knowing who or why, but you probably could have counted cars from distance, sure. And it would be fairly easy to have then monitored that traffic as it came back into Saskatoon as it passed through Vanscoy, to pick those cars up and, and check their plate numbers and perhaps even who was in them. If that was your objective, sure, that’s possible. Okay. And it’s often practice to see whether or not known drug dealers are associating with potential targets. Sure. So take it there wasn’t any attempt to see whether there was any association physically observed between these two targets and known drug dealers? Prior to January 30th? Prior to January 30th, 1997. No. The other objectives referred to by Constable Martens in question 214 are the objectives he referred to in paras. 20 and 21 of the affidavit submitted in support of the authorization. [21] With respect to the use of an undercover police officer or police agent, Constable Martens indicated he did not consider this possible. His evidence in this respect appears at pp. 265-266 of the transcript in the following questions and answers: Okay. The now, prior to January 30th of 1997, take it no attempt was made to approach either of these individuals, Mr. Begrand-Fast or Mr. Derksen as an undercover police officer to see whether or not they might be able to [be] induced to sell drugs to an undercover police officer? No, there was no effort. Okay. Likewise, no agent was employed or requested to go and approach them to see if they would sell drugs to him? knew of no one willing to act in that capacity, that could or would. I’m not necessarily talking about something from which charge would necessarily initially result, but I’m simply talking about someone who would do at least confirmatory initial attempt to purchase from either or [sic] those individuals, that wasn’t attempted? Again, knew nobody that was in that position of willing to become an agent. take it from that answer, is that wasn’t attempted? It would have been considered if knew of somebody, but didn’t know anybody that was willing to participate in that fashion. And you would agree with me that you’d have to do considerable amount of background checks to figure out who an appropriate agent might be? Well, it’s, it’s usually somebody that’s known to the targets that’s built up rapport and credibility and then comes to the police willing to make these purchases and tells us who they can buy from. Okay. So I, knew of no one that knew Les and Kerry in that fashion, think, to buy. [22] The Crown relies on recent decision of this court in R. v. Dosch, supra, in support of the authorization, and in support of its position that it is not necessary that other means of investigation be resorted to prior to applying for an authorization. In the Dosch case Dovell J. of this court concluded there was investigative necessity for the issuance of an authorization based on the four boilerplate paragraphs referred to in para. [14], supra, combined with the goal of the investigation which was to try and learn the supplier of the drugs that Dosch was dealing. Dovell J. noted at para. 13: .The focus of the investigation was not on the people who were buying the drugs from Mr. Dosch but was on who Mr. Dosch’s supplier was. The Drug Unit had an idea of where he was getting the drugs from in British Columbia but they were hoping to gather more evidence regarding his source. [23] The information that had been presented in the affidavit in support of the authorization in the Dosch case is summarized by Dovell J. at para. 12 of her fiat: Some of the information received from informants who had all proven reliable in the past included the following: (1) Leland Dosch was dealing in large amounts of marihuana and cocaine in the summer of 1996. (2) Leland Dosch was travelling to British Columbia to purchase drugs and was bringing it back to Saskatchewan to sell. (3) Leland Dosch had sold one source some cocaine in 1996 and Leland Dosch usually had two ounces of cocaine sitting on his kitchen table, as well as up to two pounds of marihuana on hand. (4) Leland Dosch was also cultivating marihuana. (5) Leland Dosch was surveillance conscious and believed that his phone might be tapped. (6) People were coming and going from the Dosch farm to purchase cocaine and marihuana. The foregoing case is distinguishable from the present case by the fact the information in the affidavit in support disclosed extensive dealing in both marihuana and cocaine by Dosch and addressed the recognized difficulty of normal police investigative activity ever identifying the source of supply, particularly with surveillance conscious target. [24] The fact pattern in this matter was the reverse of that in Dosch. The police knew, if the information received proved accurate, that the applicant’s were the suppliers of marihuana and the authorization was requested to determine anyone else with whom they might be dealing. Constable Martens as noted above at para. [17] admitted that once he received the information of marihuana grow operation, applying for an authorization became the investigative tool of choice. No investigation was conducted by Constable Martens other than investigation to verify some of the information he had received from the informant. [25] The information in this case is limited to the existence of marihuana grow operation on rural acreage owned by the applicant Derksen with which the applicant Begrand-Fast was supposed to be involved. The affidavit in support admits that nothing is known about the two individuals previous involvement, if any, in the drug trade, and Constable Martens acknowledged that neither person had criminal record. As a result, the boilerplate paragraphs offered on why other investigative procedures were unlikely to succeed had or have no factual basis. These paragraphs are simply assumptions in the form of an opinion that might be justified if factual information disclosed that these persons were experienced drug dealers, or were part of an organization that carried on drug dealing, but there is total absence of any such information. As result, there are no facts to support the assertion or supporting an inference that the two individuals form “an impregnable group”, or supporting the statement that they will not deal with anyone they do not know, or on why the source might fear for his or her safety if his or her identity became known, or supporting the statement that the two individuals targeted were surveillance conscious. [26] The case law to this point supports the position that the standard to be met under s. 186(1)(b) of the Criminal Code is not “the last resort” but one of no real practical alternative. (Vide: R. v. Araujo (1998), 1998 CanLII 6287 (BC CA), 127 C.C.C. (3d) 315 at p. 325 (B.C.C.A.) on appeal to S.C.C. decision reserved April 12, 2000). There is simply no information contained in the affidavit in support of the authorization or in the amplification evidence of Constable Martens which could support an objective standard that other investigative procedures were unlikely to succeed. To the extent these boilerplate paragraphs conveyed the impression there was factual information justifying the conclusions on why other investigative procedures were unlikely to succeed, that impression was false and misleading. [27] am satisfied that if the issuing judge had been aware of the amplification evidence of Constable Martens, the judge would have concluded that the statutory conditions contained in s. 186(1)(b) had not been established. In the end result, the applicant’s have satisfied the burden of proof on the balance of probabilities that the pre-conditions for the granting of an authorization set out in s. 186(1)(b) were not met. As a result the authorization dated January 30, 1997 is set aside. [28] The interceptions which occurred pursuant to the authorization of January 30, 1997 constituted a search and seizure within the meaning of s. 8 of the Charter, and as the search was not authorized by law the search was unreasonable and in breach of that section (Vide: R. v. Garofoli, supra, per Sopinka J. at p. 187). Whether the evidence of the interception should be excluded from evidence pursuant to s. 24(2) will be dealt with later herein. Authorization for Video Surveillance [29] The affidavit in support of warrant for video surveillance pursuant to s. 487.01(1) of the Criminal Code relied exclusively on communications intercepted as result of the issuance of the electronic surveillance warrant. Intercepted information indicated the applicant Derksen would be away on holidays from March 29 to April 5th, 1997, and that it was likely the applicant Begrand-Fast would check on the premises while he was away. The relevant paragraph in the affidavit states as follows: 8. THE intercepted calls under the current Authorization has revealed little direct evidence to prosecute Kerry FAST. Les DERKSEN plans for holiday between the 29th day of March A.D., 1997 and the 5th day of April A.D., 1997 will provide the opportunity to gather evidence by means of television camera or other similar electronic device against Kerry FAST as he cares for the marihuana cultivation in DERKSEN’s absence. As result of the warrant which issued police officers were successful in installing video camera equipment in the grow area which was located in bunker adjacent to the basement of the house and which was accessible through door in the basement. Mr. Begrand-Fast was photographed by the camera in the grow room during the period of time Mr. Derksen was away from the residence. [30] Applicants’ counsel submit that as the information used to obtain the video surveillance warrant consists entirely of excerpts from the intercepted conversations obtained pursuant to the electronic surveillance authorization, the video surveillance warrant should also be set aside, on the basis there is no other information submitted in the affidavit in support of the warrant that could provide reasonable and probable grounds for its issuance. Before addressing this position, it is necessary to address the Crown’s position that the applicant Begrand-Fast lacked privacy interest in the Derksen residence and therefore his right pursuant to s. of the Charter to be secure against unreasonable search or seizure was not infringed. [31] The Crown concedes that Mr. Derksen had privacy interest in his residence and the attached bunker but submits on the basis of the law cited in R. v. Edwards (1996), 1996 CanLII 255 (SCC), 45 C.R. (4th) 307 (S.C.C.) and in R. v. Belnavis (1998), 1997 CanLII 320 (SCC), 10 C.R. (5th) 65 (S.C.C.) Mr. Begrand-Fast did not. R. v. Edwards, supra, dealt with warrantless search of premises with which the accused had connection, and R. v. Belnavis dealt with warrantless search of vehicle in which the accused was passenger. In each case the Supreme Court held the accused did not have privacy interest. At pp. 319-320 of the Edwards decision Cory J. noted that claim for relief under s. 24(2) can only be advanced by person whose Charter rights have been infringed, and that all Charter rights, including s. 8, is personal right which protects people and not places. Cory J. in this decision concluded that the right to challenge search depended upon the accused establishing that he or she had personal right to privacy with respect to the area searched. [32] The video surveillance warrant issued in this case was not directed at the “grow” room located in the Derksen residence in general with the object of observing who might show up as was the object in the case of R. v. Wong (1991), 1990 CanLII 56 (SCC), C.R. (4th) (S.C.C.). It was specifically directed at the applicant, Begrand-Fast as indicated in para. of the affidavit quoted above. In other words, the “grow” room place was target, but only incidentally to obtaining video evidence of Begrand-Fast in that place during the period of time the owner would be away. [33] In the Edwards decision, supra, at p. 320 Cory J. noted in part as follows: 5. reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances. See Colarusso, supra, at p. 54, and Wong, supra, at p. 62. 6. The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following: (i) presence at the time of the search; (ii) possession or control of the property or place searched; (iii) ownership of the property or place; (iv) historical use of the property or item; (v) the ability to regulate access, including the right to admit or exclude others from the place; (vi) the existence of subjective expectation of privacy; and vii) the objective reasonableness of the expectation. [34] Before applying the foregoing criteria to the facts in this case it is worth noting that the criteria referred to above are to be applied without regard to the fact illegal activity was allegedly taking place on the premises. This is made clear by La Forest J. speaking on behalf of the majority in R. v. Wong, supra, at p. 12 where he stated: By way of expansion on my earlier references to Sanelli, would note that that decision places considerable emphasis on the fact that the answer to the question whether persons who were the object of an electronic search had reasonable expectation of privacy cannot be made to depend on whether or not those persons were engaged in illegal activities; see [[1990] S.C.R.] pp. 51-52. If reliance were to be placed on such ex post facto reasoning, and the courts to conclude that persons who were the subject of an electronic search could not have had reasonable expectation of privacy because the search revealed that they were in fact performing criminal act, the result would inevitably be to adopt system of subsequent validation for searches. [35] Applying the criteria set out by Cory J. to this case the applicant Begrand-Fast was in de facto possession and control of the Derksen premises while the applicant Derksen was away. He was the only person who had the right to admit or exclude persons from the premises during this period. He was clearly present at the time the search was in progress as evidenced by the fact his image was captured on film. With respect to the existence of subjective expectation of privacy he was in the same position as any person who agrees to look after neighbour’s house while the neighbour is away. In this capacity it is not obvious why the person who is in the position of caretaker should not be able to expect the same level of privacy as the owner or permanent occupant of the premises for the simple reason the premises are private, in the same way hotel room is private (Vide: R. v. Wong, supra, at p. 15). This is so whether the person stays in the private premises over which he or she has temporary control for five minutes or five hours. The privacy of the premises also makes the expectation of privacy objectively reasonable. The totality of the foregoing circumstances establishes that the applicant Begrand-Fast did have reasonable expectation of privacy in the Derksen residence during the period of time covered by the surveillance warrant, and is therefore entitled to exercise his s. Charter right to challenge the validity of the warrant. [36] With respect to the use that might be made of the unlawfully intercepted conversations that form the basis of the information to obtain the video surveillance warrant the case of R. v. Evans (1996), 1996 CanLII 248 (SCC), 104 C.C.C. (3d) 23 (S.C.C.) is determinative. At p. 35 Sopinka J. noted: .As this court pointed out in R. v. Kokesch (1990), 1990 CanLII 55 (SCC), 61 C.C.C. (3d) 207, [1990] S.C.R. 3, C.R. (4th) 62, warrants based solely on information gleaned in violation of the Charter are invalid. [Emphasis in original] Such is the case with respect to the video surveillance warrant in this case. No information was offered in support of the warrant other than the tainted evidence of the intercepted conversations obtained in breach of the applicant’s s. Charter right. The video surveillance warrant therefore must be set aside. Application of Section 24(2) With Respect to the Electronic Authorization and the Video Warrant Fairness of Trial [37] number of the Saskatchewan cases quoted by defence counsel pre-date and have been pre-empted by R. v. Stillman (1997), 1997 CanLII 384 (SCC), C.R. (5th) (S.C.C.) and the cases which have followed, at least insofar as the distinction between conscriptive and non-conscriptive evidence is concerned. Conscriptive evidence is now limited to statements deemed compelled because the accused’s Charter rights were infringed in the process of obtaining the statement and to the use of the body or the production of bodily samples (Vide: R. v. Stillman, supra, at p. 36). Unlawfully intercepted communications or video images are not conscripted evidence and do not affect the fairness of the trial (Vide: R. v. Wijesinha (1996), 1995 CanLII 67 (SCC), 42 C.R. (4th) (S.C.C.) at p. 18). The Alberta Court of Appeal in R. v. Pope (1999), 1998 ABCA 267 (CanLII), 129 C.C.C. (3d) 59 with respect to third party interceptions noted at p. 62: Wijesinha was case of participant surveillance. The case at bar is one of third party surveillance. In our view, this distinction has no effect on the character of the evidence or the impact of its admission on the fairness of the trial. In both situations, the accused’s statements were made independently and voluntarily. They were not compelled. The fact that in both cases the words of the accused were captured by recording device does not change their intrinsic character from non-conscriptive to conscriptive. The court then went on to endorse the Ontario Court of Appeal decision in R. v. Lauda (1998), 1998 CanLII 2776 (ON CA), 122 C.C.C. (3d) 74 which dealt with the visual surveillance of the accused tending marihuana plants made in violation of s. of the Charter wherein Borins J. noted at p. 87: The evidence which the trial judge excluded was non-conscriptive. The respondent was not conscripted, or compelled, to participate in the creation or discovery of the evidence. He was cultivating the marijuana, and came to the farm to tend to it on the day the police were conducting visual surveillance, not as result of any form of police coercion, but of his own free will. He would have attended at the field to tend to the marijuana regardless of any police investigation. Therefore, the admission of the evidence would not have rendered the trial unfair. The foregoing rationale with respect to visual surveillance applies equally to surreptitious video surveillance. Seriousness of the Breach of s. of the Charter [38] The breach of the applicant’s s. Charter rights with respect to the obtaining of the electronic authorization was serious. In many of the seminal cases with respect to s. of the Charter the police were found to have acted in good faith because they had followed accepted practice up until that point in time, or when they had acted with warrant that was subsequently declared to be invalid they had no prior notice that this would happen. Such is not the case in this matter. At the time the electronic surveillance authorization was obtained in this matter on January 30, 1997 there was considerable body of case law interpreting s. 186(1)(b) of the Criminal Code (e.g., in Saskatchewan R. v. Stacey (L.J.) (1996), 1996 CanLII 7084 (SK QB), 140 Sask. R. 60 (Q.B.)). The decision to rely on “boilerplate” statements that other investigative procedures were unlikely to succeed, which statements when explored in cross-examination turned out to lack factual basis cannot be described as inadvertent, nor minor or technical breach of the requirements. The decision to proceed in this matter was intentional in circumstances where there was no urgency to the investigation, and no other investigation techniques had been resorted to. The authorization could not have been obtained without the breach of the s. 186(1)(b) Criminal Code provisions. [39] With respect to the video surveillance warrant, the information submitted to establish reasonable and probable grounds was exclusively information obtained from the electronic surveillance authorization. A good faith argument is not available because the information submitted in support of the warrant was tainted by the conduct utilized to obtain the electronic surveillance authorization. The evidence obtained is equally a product of a serious infringement of the applicant’s s. 8 Charter rights because once the tainted evidence was excised from the affidavit in support there was no evidence supporting the issuance of the warrant. Administration of Justice [40] As noted by Lamer J. in R. v. Collins (1987), 1987 CanLII 84 (SCC), 33 C.C.C. (3d) (S.C.C.) at p. 20, the ultimate question under s. 24(2) of the Charter is whether the systems repute will be better served by the admission or exclusion of the evidence. In R. v. Stillman, supra, Cory J. at p. 50 emphasized the words of Iacobucci J. in R. v. Burlingham, (1995), 1995 CanLII 88 (SCC), 38 C.R. (4th) 265 where at p. 290 he stated: .It must be emphasized that the goals of preserving the integrity of the criminal justice system as well as promoting the decency of investigatory techniques are of fundamental importance in applying s. 24(2). [41] Not every search leads to the same degree of intrusion of privacy. While the nature of the privacy interest intruded is relevant in assessing the seriousness of the breach of s. 8 of the Charter, it is also relevant in addressing whether the admission of the evidence obtained in the trial proceedings would bring the administration of justice into disrepute. The intrusiveness of electronic and video surveillance is recognized in the judicial authorization protocols outlined in Part VI of the Criminal Code which applies to both, and includes the requirement that the provisions of s. 186(1)(b) be satisfied. The rationale for these special provisions it is submitted was articulated by La Forest J. in R. v. Wong, supra, at p. 11 where he stated: the threat to privacy inherent in subjecting ourselves to the ordinary observations of others pales by comparison with the threat to privacy posed by allowing the state to make permanent electronic records of our words or activities. Reference may also be made to the remarks of Cory J. in R. v. Wise (1992), 1992 CanLII 125 (SCC), 70 C.C.C. (3d) 193 at p. 219 with respect to the electronic beeper attached to the accused’s vehicle: .It must be remembered as well that the device was attached to the appellant’s vehicle, not to the appellant. How very different device such as this is, in its operation and in its effect on the individual, from hidden video camera or an electronic monitor that surreptitiously intercepts private communications. [42] Thus in this case, the privacy interest unlawfully intruded is one in which the expectation of privacy is comparatively high. As noted above the nature of the constitutional breach was major, not minimal. Based on Constable Martens admission that other avenues of investigation were not attempted in favour of applying for an electronic authorization the breach was not one that was made in good faith. The means of obtaining the authorization was misleading because the reasons offered for not conducting a further investigation lacked a factual basis. [43] On the basis of the foregoing it is concluded that the integrity of the justice system would be compromised as would the goal of promoting decent investigation techniques if the evidence obtained from the unlawful interceptions and video surveillance was ruled admissible. I conclude it is more likely than not the administration of justice would be brought into disrepute. The nature of the charges and the possibility that the prosecution’s case against Mr. Begrand-Fast may be fatally weakened by the exclusion of the evidence is taken into account. [44] The evidence obtained pursuant to the electronic surveillance authorization and the video surveillance warrant is ruled inadmissible at trial. The Search Warrant [45] The search warrant for the Derksen residence is dated April 1, 1997 and authorized search of his premises to take place between 7:00 a.m. April 2, 1997 and midnight on April 4, 1997 during which period of time he was away. The search was conducted on April 2, 1997. [46] Counsel for the applicant submits that much of the information used to establish reasonable and probable grounds for the issuance of the warrants consisted of intercepted communications pursuant to an authorization that has since been set aside, and for this reason the search warrant should also be set aside and the evidence consisting mainly of the marihuana plants seized at the Derksen residence should be excluded from evidence at trial. [47] Applicants’ counsel also takes the position that the search of the Derksen residence was conducted in an unreasonable manner because two television news crews were allowed on the premises during the time of the search. Validity of the Search Warrant for the Derksen Residence [48] In R. v. Evans, supra, Sopinka J. held that warrants based solely on tainted information are invalid, but went on to state at p. 35: .However, where the warrant was issued only partially on the strength of tainted evidence, and partially on evidence that was properly obtained, the court must “consider whether the warrant would have been issued had the improperly obtained facts been excised from the information sworn to obtain the warrant”: R. v. Grant (1993), 1993 CanLII 68 (SCC), 84 C.C.C. (3d) 173 at p. 195. [49] The information to obtain the search warrant for the Derksen residence contains information that is not derived from the unauthorized intercepts, and consists largely of the same information used to obtain the electronic authorization previously set out herein. The Information was also in an edited form and the relevant paragraphs alleging criminal offence are hereinafter set out: 2. THAT was advised by confidential and reliable source, who verily believe to be true, that: Les lives on an acreage off the Cominco Mine road about three miles West of Vanscoy, Saskatchewan. Les has been growing marihuana. Apparently there was break and enter at Les’ residence and small fire started. The residence is white house with large deck sitting on hill surrounded by race track, about three miles West of Vanscoy. Les had contacts in where he possibly distributes the marihuana. One associate is a, who has also been in marihuana cultivation for years. Les is described as 5'10", 180 pounds, brown hair, ponytail, stocky build, glasses, former Radio Cab driver, girlfriend Debbie, associate of Kerry FAST. Saskatchewan licence DYM-966 was observed in the yard. THAT have known this source since 1994 and have been the source’s principal handler. This source has been used on numerous occasions and has been accurate and reliable on every occasion where the information was able to be confirmed. Throughout this affidavit, in every case where information comes from this informant, he/she has personal knowledge. 8. THAT, was advised by confidential and reliable source, who verily believe to be true that: Les DERKSEN is [sic] marihuana grow operation at his residence near Vanscoy. DERKSEN still has one pound of marihuana out on the streets. 11. THAT was advised by confidential and reliable source, who verily believe to be true, that: a) Les DERKSEN has marihuana plants. The information for the search warrant was edited electronically and therefore it is not possible to determine where information was deleted by the Crown. infer the confidential source referred to in paras. 2, 8, and 10 is the same source based on the fact the history of the reliability of the source is only commented on in para. and not thereafter, and the fact that there was only one source who was quoted in the Information for the electronic authorization. [50] In R. v. Wiley (1994), 1993 CanLII 69 (SCC), 84 C.C.C. (3d) 161, Sopinka J. on behalf of the court reviewed the requirements for the establishment of reasonable and probable grounds for search warrant where the information identifying an offence emanates from an informant. He noted at p. 170: In R. v. Debot (1989), 1989 CanLII 13 (SCC), 52 C.C.C. (3d) 193, [1989] S.C.R. 1140, 73 C.R. (3d) 129, this court determined that the reliability of the tip of an informant depends on an assessment of the totality of the circumstances and specified three areas of concern (at p. 215): First, was the information predicting the commission of criminal offence compelling? Secondly, where that information was based on “tip” originating from source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? review of the Information in support of the search warrant indicates that while two of the foregoing requirements are arguably met as evidenced by the credibility endorsement provided by Constable Martens with respect to the source, and the confirmatory investigation done by him to ascertain the accuracy of some of the information provided, the third dealing with the compellability of the information is not. [51] Martin J.A. in R. v. Debot (1986), 1986 CanLII 113 (ON CA), 30 C.C.C. (3d) 207 articulated what was necessary to have an informer’s information qualify as reasonable and probable grounds. His statement in this respect was adopted by Bayda C.J.S. in R. v. Pastro (1988), 1988 CanLII 214 (SK CA), 66 Sask. R. 241 at p. 246, and appears to have been endorsed on appeal to the Supreme Court of Canada (1990), 1989 CanLII 13 (SCC), 52 C.C.C. (3d) 193 (S.C.C.). Martin J.A. stated at pp. 218-219: Consequently, mere statement by the informant that he or she was told by reliable informer that certain person is carrying on criminal activity or that drugs would be found at certain place would be an insufficient basis for the granting of the warrant. The underlying circumstances disclosed by the informer for his or her conclusion must be set out, thus enabling the justice to satisfy himself or herself that there are reasonable grounds for believing what is alleged. am of the view that such mere conclusory statement made by an informer to police officer would not constitute reasonable grounds for conducting warrantless search or for making an arrest without warrant. Highly relevant to whether information supplied by an informer constitutes reasonable grounds to justify warrantless search or an arrest without warrant are whether the informer’s “tip” contains sufficient detail to ensure it is based on more than mere rumour or gossip. [52] The information supplied by the informer in this case, at least in the edited Information on the basis of which the case was argued, does not provide any information that would establish he or she did not learn the information through rumour or gossip. All that is presented are conclusory statements as noted from the Information quoted above. It is possible the source viewed the Derksen residence from the exterior based on his description of it and his observance of car belonging to Debbie in the yard, but this does not provide detail with respect to the offences alleged. [53] As the affidavit provides no indication of the source of the informer’s knowledge, there was no ability on the part of the issuing justice to assess the reliability or the credibility of the information. The fact the source is credible does not mean the information provided is reliable. When the source does not have first hand knowledge, it is necessary to identify the source of the information and provide information on the credibility of that source. (Vide: R. v. Pastro, supra; R. v. Pippin (S.D.), (1994), 1994 CanLII 4659 (SK CA), 116 Sask. R. 275 (Sask. C.A.)). [54] The absence of compellable detail of the alleged offence and the absence of the source of the informer’s knowledge means the information supplied for the Derksen search warrant did not provide a basis for the issuing justice of the peace to conclude reasonable and probable grounds existed for the issuance of the warrant, and the warrant must be set aside. Section 24(2) of the Charter [55] In R. v. Pastro, supra, and R. v. Pippin, supra, the majority in each case excluded the evidence of drugs discovered in the course of the search. However, in each case the majority equated the unlawful search with compelled testimony and concluded admissibility of the evidence would render the trial unfair (Vide: R. v. Pastro, supra, at p. 265 and R. v. Pippin, supra, at p. 287). The minority in each case would have admitted the evidence. As noted above, since R. v. Stillman, supra, it is only conscripted evidence which engages the “fairness of trial” issue, and therefore these cases are not conclusive on the issue of admissibility of evidence obtained as result of search warrant being declared invalid. [56] review of the case law since R. v. Stillman, supra, suggests that where the crime charged is serious, and the real evidence obtained as result of the unlawful search is crucial to the prosecution’s case, that only the most egregiously serious breaches of the Charter will result in exclusion of the evidence. (Vide: R. v. Puskas (1998), 1997 CanLII 1159 (ON CA), 120 C.C.C. (3d) 548 (Ont. C.A.); R. v. Lauda (1998), 1998 CanLII 2776 (ON CA), 122 C.C.C. (3d) 74 (Ont. C.A.)). [57] I do not consider the seriousness of the breach in this case to be at the high end of the scale. There was an attempt to comply with the requirements of the Criminal Code, and as noted above two of the three requirements were met. Whether there was additional information available to the issuing justice in the unedited information submitted to him or her is unknown to me. am not in position to conclude that the police could not have supplied the required information in form that would satisfy the Criminal Code requirements. To the extent tainted information was offered in support of the warrant, the police officer was obliged to include this information in the interests of making full disclosure. While good faith was not found with respect to the information offered in support of the electronic authorization, there is nothing in the information presented with respect to the search warrant that leads to a conclusion of bad faith in applying for the search warrant. As a result, on balance I conclude the administration of justice would not be brought into disrepute with the admissibility of this evidence. However, before making such ruling it is necessary to next consider the reasonableness of the search. Reasonableness of the Search [58] Counsel for the applicant, Derksen submits the search of the Derksen residence was unreasonable because two television camera crews were on his premises for up to an hour during the course of the search. [59] At the preliminary inquiry Corporal Wilde of the R.C.M.P. who is the Community Services/Media Relations Officer for the Saskatoon area testified as to why this had occurred. He indicated he had received request earlier from two television stations in Saskatoon that television camera crews be allowed to accompany drug members on drug search. He indicated that he thought it was good idea from the community relations perspective and went on to say at p. 571 of the transcript: The rationale that gave to the drug section was that the philosophy of policing in the 1990s is community based, deal working with the community to help deter and prevent crime. felt by taking the media along it would give the opportunity for them to show the public what grow operation looks like as indications are that grow operations are becoming more prevalent in this province. So having said that, taking the media along, we could through video or through television show the public what grow operations look like, and also requesting or encouraging them to report anything of suspicious nature in their community. By taking them along, felt it also could act as deterrent for other would-be persons to show that police are out there working and detecting these grow operations. [60] Corporal Wilde indicated he had attended media workshop in Vancouver in April 1996 attended by officers from across Canada, and at this conference an officer from Vancouver indicated that news media had been brought along on drug search in Vancouver, and that the Crown had been successful in defending the practice in one case in which it was challenged. (It is possible this was the trial decision subsequently overruled by the British Columbia Court of Appeal in R. v. West (1998), 1997 CanLII 3792 (BC CA), 12 C.R. (5th) 106 (B.C.C.A.)). Corporal Wilde indicated that he obtained copy of the information used to obtain the search warrant in the Vancouver case and noted that it included information on the intention to have the news media accompany the police officers on the search. He stated he gave this information to the drug section in Saskatoon. [61] Corporal Wilde indicated that he had advised the two television media persons that he required the names of persons who would accompany police officers on drug search, and told them that such persons would have to be available on short notice when an appropriate search which the media persons could attend was about to be conducted. In fact the names of the media persons were included in the information to obtain the search warrant, but did not appear in the search warrant. Defence counsel suggested this meant the justice who issued the search warrant declined to allow the media to attend and that they had attended anyway. In the absence of any evidence of what took place before the issuing justice am not prepared to draw this conclusion. The Criminal Code makes no provision to add the names of civilians to search warrant. Section 487(1) states search warrant should authorize peace officers or public officers only. [62] The British Columbia Court of Appeal decision in R. v. West makes it clear that having civilians accompany police officers on the search of private premises has no statutory basis and is unreasonable. The reasoning applies equally to this case and the search conducted of the Derksen residence was therefore conducted in an unreasonable manner contrary to s. of the Charter. However, with respect to the inclusion or exclusion of the evidence obtained in the search including approximately 365 marihuana plants Collins analysis favours inclusion. [63] There are many factual differences between the West case and this one, most of which flow out of the fact the accused, Derksen, was not present during the search of his premises, and the fact the media personnel were supervised and restricted as to what they were allowed to film. Part of the main floor area of the house was videotaped as the news camera men passed through, but most of the videotaping was restricted to the marihuana plants and the grow room. As noted earlier, the grow room was in bunker attached to the basement, which bunker was single purpose facility divorced from the remainder of the residence in the same way that garage or storage shed can be. The television cameras were not allowed upstairs into the bedroom area of the house. Corporal Wilde had set ground rules that the residence could not be identified in any broadcast and it wasn’t. What was broadcast was presented generically as search of marihuana cultivation operation. [64] The West fact situation was more serious breach of the Charter, as it was far more unreasonable exercise of discretion on the part of the police officers in that case who allowed the news media to film whatever they wished, including the arrest of the accused. An aggravating factor in the West case was that police allowed the news media to return to the accused’s apartment and film after they knew the accused had indicated he did not wish news media persons to be present. review of the case indicates the seriousness of the breach was the overwhelming consideration for excluding the evidence. [65] In this case the police proceeded in good faith based on the case they had obtained from British Columbia and the fact that Corporal Wilde had attended media conference where apparently no one thought there was anything wrong with inviting the media along in this way. The police were attentive to privacy issues in supervising and restricting the television cameras that were on the premises. [66] Defence counsel submitted that the combination of an invalid warrant and an unreasonable search should be viewed as most serious in view of the fact there were two separate breaches of Mr. Derksen’s s. Charter rights with respect to the same search. Normally there would be some force to this argument, but am influenced by the fact that the drug section was not the initiator of inviting the media along on search, and it was coincidence that Corporal Wilde did so on search where the warrant was subsequently held to be invalid. In other words the two events did not amount to course of conduct. This coincidence does not trigger concern for the propriety of ongoing police investigations. [67] In the end result, the seriousness of the charge combined with the real evidence of the marihuana plants obtained, which is crucial to any successful prosecution of Mr. Derksen, outweighs the breach of his s. 8 Charter rights to be secure from unreasonable search and seizure. I conclude it is more likely than not that exclusion of the evidence obtained from the search of his premises would bring the administration of justice into disrepute. [68] The evidence obtained as result of the search of Mr. Derksen’s residence on April 2, 1997 is admissible at trial. [69] Defence counsel also applied for stay of proceedings based on alleged police misconduct outlined in the foregoing, as well as an allegation that the electronic authorization was not complied with in its monitoring provisions, and an allegation that police officers improperly seized certain personal items of Mr. Derksen at the time of the search and refused to return them despite defence counsel’s view there was no evidence to support the proceeds of crime justification. With respect to the lack of monitoring allegation, the intercepted conversations have already been excluded from evidence and there is no need to deal with this issue. With respect to the improper seizure and retention of personal property of the accused, this is a collateral matter and does not affect the fairness of the trial. The application for a stay of proceedings is dismissed. [70] Order accordingly.

FIAT. The applicants, charged separately, plead not guilty to cultivation and possession of marijuana and sought to have the evidence obtained pursuant to the authorizations for electronic surveillance and search warrant be excluded from trial and requested a stay of proceedings on all charges. They argued the search warrant, which resulted in the seizure of 365 marijuana plants, should be set aside on the additional grounds police officers allowed two news media camera crews onto the premises to film during the course of the search thereby rendering the search unreasonable pursuant to s.8 of the Charter. The primary ground was that the police did not try any available investigative procedures before applying for a surveillance authorization. As the matter was not urgent s.186(1)(b) of the Criminal Code was not complied with. The Crown objected to the defences' reliance on portions of the preliminary inquiry. The Crown produced an edited copy of the affidavits in support of the electronic and video surveillance warrants wherein all dates and other information were deleted to protect the identity of a principal source of information. HELD: The application for a stay of proceedings was dismissed. The evidence obtained pursuant to the electronic surveillance and the video surveillance warrant were ruled inadmissible at trial. The search warrant respecting the residence was set aside. The seriousness of the charge combined with the real evidence of the 365 marijuana plants outweighed the breach of the Charter s.8 right to be secure from unreasonable search and seizure. The exclusion of the evidence obtained from the search of the premises would bring the administration of justice into disrepute. 1)The portions of the preliminary inquiry transcript were allowed by way of affidavit subject to the right of the Crown to call amplification evidence. 2)The affidavit in support of the authorizations were considered solely on the basis of the edited copies. 3)The affidavit did disclose a current offence. It was not obvious why the Crown edited out the dates. 4)The 1997 authorization was set aside. The search was unreasonable and in breach of s.8 of the Charter. The s.186(1)(b) pre-conditions for granting an authorization were not met. There was no information contained in the affidavit or the amplification evidence which could support an objective standard that other investigative procedures were unlikely to succeed. The impression given the issuing judge was false and misleading. The fact pattern was the reverse of that in Dosch. The information was limited to the existence of a marijuana grow operation on a rural acreage owned by Derksen with whom Begrand-Fast was alleged to be involved. Neither had a criminal record. The boilerplate paragraphs as to why other investigative procedures were unlikely to succeed had no factual basis. 5)The information submitted to establish reasonable and probable grounds was exclusively information obtained from the electronic surveillance authorization. A good faith argument was not available because the information submitted in support of the warrant was tainted by the conduct utilized to obtain the authorization. The evidence obtained was equally a product of a serious infringement of the applicant's s.8 Charter rights because once the tainted evidence was excised for the affidavit in support there was no evidence supporting the issuance of the warrant. The privacy interest was comparatively high. The nature of the constitutional breach was major. The means of obtaining the authorization was misleading because the reasons offered for not conducting a further investigation lacked a factual basis. 6)The residence search warrant was set aside. The affidavit provided no indication of the source of the informer's knowledge. The issuing justice was therefore unable to assess the reliability or the credibility of the information. The fact the source is credible does not mean the information provided is reliable. 7)The seriousness of the breach was not at the high end of the scale. There was an attempt to comply with the Criminal Code and two of the three requirements were met. While good faith was not found with respect to the information offered in support of the electronic authorization, there was nothing in the information presented with respect to the search warrant that lead to a conclusion of bad faith. On balance the administration of justice would not be brought into disrepute with the admissibility of this evidence. 8)The Criminal Code makes no provision to add the names of civilians to a search warrant. The reasoning in R. v. West applied and the search of the Derksen residence was conducted in an unreasonable manner contrary to s.8 of the Charter. A Collins analysis favoured the inclusion of the evidence including the plants. The police were attentive to privacy issues in supervising and restricting the television cameras. The officer set grounds rules that the residence could not be identified in any broadcast. The drug section was not the initiator of inviting the media along. It was coincidence that the corporal did so on a search where the warrant was subsequently held to be invalid. The two events did not amount to a course of conduct. 9)The improper seizure and retention of personal property of the accused was a collateral matter and did not affect the fairness of the trial.

6_2000skqb355.txt

J. Date: 20010628 Docket: S. H. No. 166282 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: BRIAN STEARS RESPONDENT/PLAINTIFF and BRIAN A. MacLEAN APPLICANT/DEFENDANT HEARD: At Halifax, Nova Scotia, in Chambers, before the Honourable Justice C. Richard Coughlan, on May 16th, 2001 DECISION: June 28th, 2001 (Orally) RELEASE OF DECISION: July 19th, 2001 COUNSEL: Michael F. LeBlanc, for the Applicant/Defendant Charles J. Ford and Rebecca Gasek (articled clerk), for the Applicant /Defendant (for oral decision only) Paul McLean, for the Respondent/Plaintiff Coughlan, J.: (Orally) [1] This is decision in the matter of S. H. No. 166282, Stears v. MacLean. This is an application by the defendant for an order setting aside default judgment pursuant to Civil Procedure Rule 12.06. have considered the defendant's affidavit, the affidavits of Wayne Smith, together with the defendant solicitor's pre‑hearing memorandum, oral submission and the cases to which have been referred. [2] The application is opposed and have reviewed the affidavits of Earl Spencer Colley and Kelly A. Rowlett, as well as the pre‑hearing memorandum, oral submissions and cases to which have been referred. [3] The originating notice (action) and statement of claim were issued on September 27th, 2000 and judgment was entered against the defendant on October 18th, 2000. An execution order was issued and the defendant's wages garnisheed. 1. Was service of the originating notice (action) and statement of claim effected on the defendant? 2. If the answer to the first issue is yes: (a) Does the defendant have fairly arguable defence or is there substantial issue to be tried between the parties? (b) Does the defendant have reasonable excuse for the delay in filing the defence? [4] The affidavit of Earl Spencer Colley sets out that he is retired Constable from the Dartmouth City Police and Halifax Regional Municipality Police Force. He was police officer for twenty‑five and half years. He was aware statement of claim requires personal service, and that he served the originating notice and statement of claim in this proceeding on the defendant on September 28th, 2000. Mr. Colley acknowledged that service was made on the defendant based on the affidavit of service he swore, but he has no recollection of the particular service on the defendant. He does recall one incident concerning service on Mr. MacLean but, as he served two originating notices on Mr. MacLean, he does not recall which of the services his recollection concerns. [5] The affidavits of Wayne Smith sets out he is co‑worker of Brian MacLean and on September 28th, 2000 at or about 12:30 p.m. person left an envelope with him to deliver to Brian MacLean. Mr. Smith had no knowledge of the contents of the envelope, left it on his manager's desk, got busy and forgot he had received the package. He states approximately three or four days later he remembered the incident, informed Mr. MacLean, who retrieved the package. [6] Having considered the evidence and submissions of counsel, I find that the originating notice (action) and statement of claim were served on Brian MacLean by Earl Spencer Colley on September 28th, 2000. Mr. Colley, an experienced retired police officer, swore an affidavit that he had served the documents on Mr. MacLean. He did not recall the circumstances of the particular service, but that is understandable given the number of documents he serves. [7] The test to be applied in an application to set aside default judgment pursuant to rule 12.06 is well established. In Ives v. Dewar (1948), 1948 CanLII 275 (NS CA), 23 M.P.R. 218 at 221, Parker, J. stated in giving the judgment of the Supreme Court, sitting en banco: Before the interlocutory judgment should have been set aside ..., it was necessary for the appellant to show by affidavit, facts which would indicate clearly that he had good defence to the action on the merits; not necessarily defence that would succeed at the trial because the action was not being tried on that application; but facts which would at least show beyond question that there was substantial issue between the parties to be tried. He must also show by affidavit why his defence was not filed and delivered within the time limited by the Rules. The reasons thus disclosed are immaterial matters which the judge or Court should consider in determining whether the application to set aside the judgment should be granted or refused. [8] This approach has been consistently followed in Nova Scotia. [9] In order to succeed in an application pursuant to Civil Procedure Rule 12.06, the defendant must demonstrate: (a) fairly arguable defence or substantial issue to be tried; (b) reasonable excuse for the delay or failure to file defence within the time requirements. [10] The plaintiff's claim is that Mr. MacLean's dog ran onto the Conrod Settlement Road in front of the plaintiffts motor vehicle forcing the vehicle into the ditch, with resultant damage, and that the accident was caused by Mr. MacLean's negligence in failing to keep his dog under control. [11] Paragraphs 3, and of Brian MacLean's affidavit deal with the issue of his defence to the action. Paragraph is statement that neither Brian MacLean nor his dog were responsible for the car accident. Paragraph is statement that there are several dogs in the general vicinity of his home that go on the road and the police had not laid any charges against him. In paragraph he states when he left for work the dog was on chain, sometimes children in the neighbourhood let his dog off the chain to play. Further his dog may have broken his chain. But to his knowledge the dog had never ventured onto the road. [12] find the defendant's affidavit does not set out acts upon which in the words of Ives v. Dewar would clearly indicate he had good defence to the action on the merits; not necessarily defence which would succeed at the trial because the action was not being tried on the application, but facts which would show beyond question that there was substantial issue between the parties to be tried. REASONS FOR DELAY [13] Mr. MacLean has not given any reasons for not filing a defence in this proceeding, other than his assertion that the originating notice (action) and statement of claim were not served on him. [14] note in paragraph of her affidavit, Kelly A. Rowlett states she and the defendant had discussion in which he stated he was not responsible for the accident and for Ms. Rowlett to go ahead and sue him as he did not have anything in any event. He looked further into the matter once his wages were garnisheed. [15] find Mr. MacLean has not shown by his affidavit why his defence was not filed and delivered within the time limited by the Rules. [16] For all of these reasons, the defendant's application is dismissed. [17] award costs to the plaintiff respondent in the amount of $500.00, payable forthwith. C. Richard Coughlan, J.

The respondent entered a default judgment against the applicant and issued an Execution Order. The applicant applied to have the default judgment set aside on the basis that the Originating Notice and Statement of Claim were never served upon him. Application dismissed; on the evidence the documents were served upon the applicant; even though the experienced process server had no independant recollection of service, he swore an affidavit of service which was accepted. The applicant did not meet the test of a fairly arguable defence and gave no other reasons for not filing a defence other than his allegation that the documents were not served upon him.

d_2001canlii25701.txt

Q.B.G. A.D. 1998 No. 1992 J.C.S. IN THE QUEEN`S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: ASSOCIATES LEASING (CANADA) LTD. and HUMBOLDT FLOUR MILLS INC. RESPONDENT D.F.G. Quennell for the applicant D.R.P. Sanders for the respondent JUDGMENT BAYNTON J. December 15, 1998 [1] Associates applies under s. 63 of The PersonalProperty Security Act, 1993 for an order declaring thepriority of competing security interests held by Associatesand Humboldt in two reefer trailers. It also applies for anorder giving directions respecting the exercise of the rightsof the secured party with the prior interest. When the application came before me in chambers, the parties filed an agreed statement of facts and focussed their submissions solely on the priority issue as if the application had been brought under s. 66. have proceeded as if this were so. [2] Associates` purchase-money security interests wereacquired pursuant to its leases of the trailers to Lake AirServices ("Lake Air") on December 22, 1997. Humboldt`s security interests were acquired pursuant to security agreement granted to it by Lake Air in May 1996 on present and after acquired property as amended in January 1998 to specifically include the trailers. Positions of the Parties [3] Associates maintains that s. 34(2) gives its purchase money security interests in the two trailers priority over Humboldt`s security interests in them. Associates says that its security interests were perfected, as required by s. 34(2), within fifteen days by registration on January 5, 1998. Humboldt maintains that Lake Air acquired constructive possession of the trailers on December 19, 1997 (prior to the dates of the written leases) and that accordingly Associates cannot rely on s. 34(2) for priority because its purchase money security interests were not perfected within fifteen days of that date as required by the section. [4] The gist of Humboldt`s position is that Lake Air acquired constructive possession of the trailers on December 19, 1997 when Lake Air verbally arranged the acquisition of the trailers with special equipment from GJ Bell International Ltd. ("GJ Bell"). GJ Bell would not proceed with the transaction without confirmed sales transaction. Associates advised GJ Bell that it would finance the acquisition of the trailers and equipment by purchasing them and leasing them to Lake Air. GJ Bell then signed contract dated December 19, 1997 with Mid-Canada Thermo King ("Mid-Canada") for the installation of the equipment on the trailers in accordance with the specifications given GJ Bell by Lake Air. The trailers were then delivered by GJ Bell to Mid-Canada so that the installation work could be done. The trailers were leased by Lake Air from Associates by written agreements dated December 22, 1997. The sales agreement between GJ Bell and Associates was dated December 29, 1998. The Issue [5] The issue to be determined is what is meant by theterm "possession" in s. 34(2)(a) and when, in thecircumstances of this case, Lake Air obtained possession orconstructive possession of the trailers within the meaning ofs. 34(2)(a). [6] The Agreed Statement of Facts filed by the parties is reproduced in full except for the schedules which are in part illegible due to the poor quality of the facsimiles. AGREED STATEMENT OF FACTS 1. The Respondent, Humboldt Flour Mills Inc., ("HFM") was granted security interest by Lake Air Services Ltd. ("Lake Air") and registered financing statement perfecting that security interest, on May 29, 1996. The security interest registered by the financing statement included all present and after-acquired property and certain specified serial numbered goods. By an amendment registered on January 23, 1998, there was added to the registration over serial numbered goods the following Reefer Vans (among other collateral): 1998 Wabash RCA-102 Reefer Van, serial number 1JJV482W6WL439499; and 1998 Wabash RCA-102 Reefer Van, serial number 1JJV482W0WL439501. Attached as Schedule "A", to this Agreed Statement of Facts, is copy of the Personal Property Registry search against Lake Air Services Ltd. showing the registration on behalf of HFM commencing at page 16. 2. Associates Leasing (Canada) Ltd. ("Associates") entered into lease agreements with Lake Air, both of which agreements are dated December 22, 1997, and copies of each of the lease agreements are attached hereto as Schedule "B" to this Agreed Statement of Facts. By the terms of these lease agreements, Associates leased the trailers with Reefers referred to above, to Lake Air, for term of 60 months. Associates registered financing statement against Lake Air on January 5, 1998. The registered security interest is shown at pages of the Personal Property Search result, attached as Schedule "A". 3. Lake Air arranged the acquisition of the trailer units from GJ Bell International Ltd. ("GJ Bell Trucking"). GJ Bell Trucking directly dealt with Cummins Mid- Canada Ltd. to purchase two Reefers and to install those Reefers on those trailer units. 4. Dennis Foret of GJ Bell Trucking was contacted by telephone by representative of Associates on or about December 19, 1997. At that time he was advised that Associates had agreed to proceed with the transaction with Lake Air. Associates had agreed that it would finance the trailers through lease agreement with Lake Air. Dennis Foret confirmed that GJ Bell Trucking would not proceed with the acquisition of the Reefers or the installation of the Reefers on the trailer units unless it had confirmed sale transaction. Based upon the discussions with the representative of Associates, GJ Bell Trucking arranged the purchase of the Reefers with Cummins Mid-Canada Ltd. Attached hereto as Schedule "C" is the price quotation dated December 19, 1997, which price quotation resulted in the telephone acceptance of the transaction by Associates, and which then prompted the delivery of the units to Cummins Mid-Canada Ltd. to have the Reefers attached to the 5. The lease agreements between Associates and Lake Air are dated December 22, 1997, as is the sales invoice between Cummins Mid-Canada Ltd. and GJ Bell Trucking. Commencing December 19, 1997, work began to attach the Reefers to the 6. By Vehicle Purchase Order dated December 29, 1997, copy of which is attached as Schedule "D", Associates purchased the Reefer trailers from GJ Bell Trucking. DATED at Regina, Saskatchewan this 5th day of October, 1998. [7] have set out the relevant sections of The Personal Property Security Act, 1993, including s. 22. It is not applicable to the type of priority dispute that arises in the case before me, but the wording of the provisions respecting possession and constructive possession are similar. As well, s. 22(2) sheds some light on what is meant by these terms. 2(1) In this Act: (g) "collateral" means personal property that is subject to security interest; (m) "debtor" means: (i) person who owes payment or performance of an obligation secured, whether or not that person owns or has rights in the collateral; (iii) lessee pursuant to lease for term of more than one year; (jj) "purchase-money security interest" means: (i) security interest taken in collateral to the extent that it secures all or part of its purchase price; (ii) security interest taken in collateral by person who gives value for the purpose of enabling the debtor to acquire rights in the collateral, to the extent that the value is applied to acquire those rights; (iii) the interest of lessor of goods pursuant to lease for term of more than one year; or (iv) the interest of consignor who delivers goods to consignee pursuant to commercial consignment; but does not include transaction of sale and the lease back to the seller and, for the purposes of this clause, "purchase price" and "value" include credit charges and interest payable for the purchase or loan credit; (qq) "security interest" means: (i) an interest in personal property that secures payment or performance of an obligation, but does not include the interest of seller who has shipped goods to buyer under negotiable bill of lading or its equivalent to the order of the seller or to the order of an agent of the seller, unless the parties have otherwise evidenced an intention to create or provide for security interest in the goods; and 22(1) purchase-money security interest in: (a) collateral, other than an intangible, that is perfected not later than 15 days after the day on which: (i) the debtor obtains possession of the collateral; or (ii) another person, at the request of the debtor, obtains possession of the collateral; whichever is earlier; or (b) an intangible that is perfected not later than 15 days from the day on which the security interest attaches; has priority over the interest of person mentioned in subsection 20(1) or (2). (2) For the purposes of this section, where goods are shipped by common carrier to debtor or to person designated by the debtor, the debtor does not obtain possession of the goods until the debtor or third party at the request of the debtor obtains actual possession of the goods or document of title to the goods, whichever is earlier. 34(2) Subject to subsection (6) and section 28, purchase-money security interest in: (a) collateral or its proceeds, other than intangibles or inventory, that is perfected not later than 15 days after the day on which the debtor, or another person at the request of the debtor, obtains possession of the collateral, whichever is earlier; or (b) an intangible or its proceeds that is perfected not later than 15 days after the day on which the security interest in the intangible attaches; has priority over any other security interest in the same collateral given by the same debtor. [8] There is no dispute that the Associated lease agreements are for more than one year, that they pertain to collateral that does not consist of intangibles or inventory, that they constitute purchase money security agreements, and that Lake Air as lessee of the trailers is debtor as defined by the Act. Nor is there any dispute that section 34(2)(a) gives properly perfected purchase-money security interest priority over an earlier properly perfected non purchase-money security interest granted by the same debtor in the same collateral. In Royal Bank of Canada v. Tisdale Credit Union Ltd. (1992), 1992 CanLII 8170 (SK QB), 104 Sask. R. 128, Grotsky J. comprehensively reviews the legal and commercial rationale for the "super- priority" given by the Act to purchase-money security [9] Nor is there any dispute that the time within which the purchase-money security must be perfected begins to run from the earliest date that the debtor either obtains possession of the collateral or has constructive possession of it. use the term "constructive possession" to mean the possession of the collateral by "another person at the request of the debtor" as set out in s. 34(2)(a). But what constitutes "possession" of collateral by the debtor within the meaning of this section is very much in dispute in this [10] In Richard H. McLaren`s, Secured Transactions in Personal Property in Canada, Second Edition, (Toronto: Carswell, 1998) (Release 2) para. 5.02[4], the author discusses the ongoing debate as to what is meant by "possession" in provision in the Uniform Commercial Code that is similar to s. 34(2) of our Act. One approach measures the perfection period from the time at which physical possession passes. An alternative line of authority measures the period from the date the security agreement is executed and value is given despite the fact that physical possession was obtained earlier. The rationale is that until there has been transfer of value and the execution of security agreement respecting the property, physical delivery alone cannot effect an attachment nor create security interest in the property. [11] variation of this alternative approach is to focus on the word "debtor" in s. 34(2)(a). lessee, for example, does not become debtor in possession until the terms of the lease are met and the security agreement is executed and delivered. But, as McLaren points out, does the term "debtor" merely identify one of the parties or does it restrict the application of the section to debtor as defined in s. 2(m) of the Act? The term "collateral" is also defined by s. 2(g) as "personal property that is subject to security interest". The term "security interest" is in turn defined by s. 2(qq)(i) as "an interest in personal property that secures payment or performance of an obligation...." Unless the property qualifies as "collateral" person cannot possess it as "debtor" within the meaning of the priority section. Messrs. Cummings and Wood, at pp. 175-6 of Saskatchewan and Manitoba Personal Property Security Acts Handbook (Toronto: Carswell, 1994) pose an example to illustrate the problem of determining when debtor`s possession begins for the purpose of calculating the fifteen days within which the purchase-money interest security must be perfected. There is matter involving the issue of possession by the debtor that is not directly addressed in the section. This problem is illustrated in the following scenario: On June "seller" delivers photocopier to prospective buyer on 30-day "sale or return" basis. On July 1, the prospective buyer decides to buy the machine, and on that date security agreement is executed. The seller registers financing statement on July 15. However, on July 10 an execution creditor of the buyer causes the photocopier to be seized under writ of execution. The execution creditor will argue that the secured party did not perfect his security interest with 15 days of the debtor obtaining possession of the machine. The debtor got possession on June 1. The secured party will counter by pointing out that, although the customer was in possession of the machine on June 1, she was not in possession of it as "debtor" until the security agreement was executed on July 1, with the result that the security interest was perfected not later than 15 days from the date the debtor obtained possession. [13] Although the example is posed in comment to s. 22, it is equally applicable to s. 34(2) as indicated by the authors in note on page 265 as follows: The 15-day period does not start to run merely because the debtor is in possession as lessee or other type of bailee. See Royal Bank v. Toronto-Dominion Leasing (1987), P.P.S.A.C. 103 (Sask. Q.B.); McLeod Co. v. Price Waterhouse Ltd. (1992), P.P.S.A.C. (2d) 171 (Sask. Q.B.). more detailed discussion of this point may be found in &22[2]. [14] Counsel for Humboldt made persuasive submission that "possession" for the purposes of calculating the perfection period in s. 34(2)(a) should be interpreted as physical possession or constructive possession of the collateral independent of the formalization of the associated property rights and obligations between the parties. He submitted that the rationale for using the date the prospective debtor acquires physical possession of the collateral, rather than the date the security interest arises, is to prevent purchase-money security interest holders from abusing their super-priority position. Once they permit prospective debtor to take physical possession of the property, they clothe that person with ostensible ownership of the property which might be relied upon by other security interest holders to their detriment. Unless purchase-money security interest holders act promptly in perfecting their security once the prospective debtor is in possession of the collateral, they should lose their super-priority. [15] The case law in Saskatchewan however has interpreted "possession" to constitute more than mere physical possession. Walker J. in Royal Bank v. Toronto-Dominion Leasing (1987), P.P.S.A.C. 103 stated at p. 107: When does "the debtor obtain possession" of the collateral under s. 34(1)? "Possession" means simple physical control upon the delivery of the goods, not formal acceptance under the law of sales. It may be more difficult to answer the question in the context of possession given "on approval" "for inspection purposes only", "on trial", "on sale or return" or "for reasonable testing purposes", or in the context of an option to purchase or the context of late signing of sale documents. However, it seems reasonably clear that "naked possession" is not enough to start the fifteen-day period running. The buyer is not necessarily to be construed "debtor" the instant delivery is made. Mere physical control does not necessarily constitute "possession" under s. 34(1). The fifteen-day period does not begin to run until the party in possession of equipment becomes "debtor" obligated to pay the purchase price. But, that is not the case here. [16] Matheson J. in McLeod Co. v. Price Waterhouse Ltd. (1992), P.P.S.A.C. (2d) 171 stated at p. 176: Ford Credit did not become the creditor of Avonlea until it agreed, on November 2, 1989, to accept the debt. Conversely, until Ford Credit became the creditor Avonlea could not be the debtor of Ford Credit. Avonlea was therefore not in possession of the collateral, as "debtor", until November 2, 1989. Consequently, Ford Credit perfected its purchase-money security interest in the collateral within the 15-day period prescribed by s. 34(1)(a) of the P.P.S.A. Its purchase- money security interest in the tractor thereby took priority over the existing security interest in the same collateral which Avonlea had granted to SEDCO. In that case Avonlea had been in possession of the collateral for several months before November 2, 1989. [17] Although each of these cases were decided under the former Act, sections 22 and 34(2) of the new Act (formerly s. 21 and 34(1)) are essentially unchanged except for the addition of the concept of constructive possession which I`ll discuss later. In my view the two cases have cited establish that the term "possession" in these sections is not necessarily equivalent to bare physical possession. Messrs. Cummings and Wood appear to be of the same view. Their Handbook respecting the former Act preceded these two cases. In their commentary they indicated that the possession issue was still undecided in Canada. Their commentary on this issue in their current Handbook on the new Act contains no such statement. It has been replaced by commentary at p. 176 that analyses the two cases in connection with the example that quoted previously as follows: .. In Royal Bank v. Toronto-Dominion Leasing the Saskatchewan Court of Queen`s Bench held that the debtor must be in possession qua debtor not in some other capacity in order for the 15-day period to start to run. So long as the prospective buyer in the above scenario was in possession of the machine under sale or return arrangement, she was not debtor because she was under no obligation to buy it. Only when the contract to buy the machine was executed (July 1) did the prospective buyer become the buyer- debtor. Where the sales agreement is conditional on the buyer obtaining financing, it is the time that the condition is satisfied and not the time that the sales agreement is executed that will determine when the bailee becomes debtor. The outcome is different if the bailee has possession of the goods under transaction that is deemed security agreement. For example, true lease for term of more than one year may contain an option to purchase. The date on which the lessee exercises the option is of no consequence in this context. The definition of "debtor" in section 2(1)(m)(iii) (clause (c) of the definition in section [Man.]) includes lessee under lease for term of more than one year. Therefore, the 15-day period in section 22 begins to run from the date the lessee obtained possession of the goods as lessee, and not from the date that the lessee became buyer of the goods. [18] As far as am aware, the case law in this province has not as yet interpreted the constructive possession terms of either section 34(2) or section 22. These terms were not contained in either s. 21 or s. 34(1) of the previous Act. Section 22(2) restricts the scope of constructive possession somewhat but it applies only to s. 22 not to s. 34. [19] In my view, a person is not in constructivepossession of collateral within s. 34(2)(a) unless that personis a "debtor" as defined, unless the collateral is"collateral" as defined, and unless another person "obtained"physical possession of the collateral "at the request of "that debtor. There is no constructive possession by the debtor within the meaning of the section if another person obtained possession of the collateral at the request of someone other than the debtor. Nor does another person obtain possession "at the request of the debtor" simply by handling the collateral or transporting it to the debtor as is the case respecting common carrier under s. 22. As well, until the debtor becomes legally entitled to the physical possession of the collateral, another person cannot be in possession of it at the "request" of the debtor. [20] reject the contention of Humboldt that Lake Air and Humboldt were legally committed to lease of the trailers on December 19, 1997, when Associates obligated itself to buy the trailers from GJ Bell. Although the fact that the lease agreements between Associates and Lake Air are dated December 22, 1997 does not preclude the court from finding that the parties had prior verbal agreement, there is no evidence to convince me that this was so. Even if have erred in this conclusion, it does not follow that Lake Air obtained either the actual or constructive possession of the trailers before December 22, 1997. The evidence convinces me otherwise for several reasons. [21] It is obvious that before December 22, 1997, the trailers were not in the physical possession of Lake Air. They were first in the possession of GJ Bell as vendor and then in the possession Mid-Canada as installer of the equipment. As well, the first term of each lease agreementcontained an acknowledgement by Lake Air that the respectivetrailer was delivered to it by Associates at the location andon the date set out in the lease. Such a clause isinconsistent with the submission that Lake Air had actual orconstructive possession at an earlier date. [22] I also conclude that Lake Air did not haveconstructive possession of the trailers prior to December 22,1997, through either GJ Bell or Mid-Canada. Neither GJ Bellnor Mid-Canada was in possession of the trailers "at therequest of" Lake Air. The December 19, 1997 contract for the installation of equipment on the trailers was between Mid- Canada as an installer and GJ Bell as customer. The only mention of Lake Air in the contract was its name after the term "Reference". Presumably Mid-Canada held possession of the trailers for GJ Bell and would not have relinquished possession of them until it was paid by GJ Bell. The December 29, 1997 contract respecting the purchase of the trailers was between GJ Bell as "Seller" and Associates as "Purchaser". The only mention of Lake Air in that contract was its name after the term "Lessee". Presumably GJ Bell held possession of the trailers for Associates and would not have relinquished possession of them until it was paid by Associates. [23] As Lake Air had neither actual nor constructive possession of the trailers before December 22, 1997, the perfection of Associates` purchase-money security interest by January 5, 1998 fell within the fifteen days specified in s. 34(2)(a). realize that my interpretation may in some cases "extend" the 15-day perfection date to the detriment of non purchase-money security holders. But in my view the protection the Act gives to purchase-money security holders should be interpreted broadly. agree completely with the comments of Cummings and Wood, Saskatchewan and Manitoba Personal Property Security Acts Handbook, supra, at p. 263: The policy underlying the special status given to suppliers of purchase-money credit is not difficult to identify or to justify. creditor who has provided the credit needed by debtor to acquire the property in which the creditor holds security interest should be given priority to that property. Without this priority, it is unlikely that the creditor would be willing to grant secured credit when the debtor has given prior security agreement that contains an after-acquired property clause. The prior security interest attaches to the property acquired with the purchase-money credit, and would be entitled to priority in the absence of super-priority rule. corollary of this is that the purchase-money priority permits the debtor to obtain secured credit from additional sources in situations where broadly based non- purchase-money security interest has been given in the debtor`s present and after- acquired personal property. This is an important feature of the system because it is very easy for creditor to take and perfect security interest in all of debtor`s present and after-acquired property. [24] In the circumstances of the case before me, to denyAssociates priority over Humboldt would provide Humboldt withan unmerited windfall at the sole expense of Associates whogave full value for the purchase-money security interest itobtained from Lake Air. Conclusion [25] The application of Associates is allowed. It is ordered that its purchase-money security interests in the two reefer trailers have priority to Humboldt`s security interests in them. Associates is entitled to its costs from Humboldt.

Associates, which held purchase money security interests pursuant to its 1997 leases, applied under s.63 of the Personal Property Security Act for an order declaring the priority of competing security interests held by Associates and Humboldt Flour Mills in two reefer trailers. Humboldt's security interests were acquired pursuant to a security agreement granted in 1996 on present and after acquired property as amended in 1998 to specifically include the trailers. It also applied for an order giving directions respecting the exercise of the rights of the secured party with the prior interest. At issue is what is meant by 'possession' in s.34(2)(a) and when Lake Air obtained possession or constructive possession of the trailers. HELD: The application was allowed with costs from Humboldt. 1)The parties filed an agreed statement of facts and focused on the priority issue as if the application had been brought under s.66. 2)'Constructive possession' means possession of the collateral by 'another person at the request of the debtor' as set out in s.34(2)(a). What constitutes 'possession' of collateral by the debtor within s.34(2)(a) was in dispute. Unless the property qualifies as 'collateral' a person cannot possess it as a 'debtor' within the meaning of the priority section. 3)The case law in Saskatchewan has interpreted 'possession' to constitute more than mere physical possession. Sections 22 and 34(2) of the new Act are essentially unchanged except for the addition of the constructive possession. S.22(2) restricts the scope of constructive possession somewhat but it applies only to s.22 not to s.34. 4)A person is not in constructive possession of collateral within s.34(2)(a) unless that person is a 'debtor' as defined, unless the collateral is 'collateral' as defined and unless another person 'obtained physical possession of the colateral at the request of that debtor'. 5)The first term of each lease agreement contained an acknowledgement by Lake Air that the trailer was delivered by Associates at the date and location set out in the lease. Such a clause is inconsistent with Lake Air having actual or constructive possession at an earlier date. Lake Air did not have constructive possession prior to December 1997 through either Bell or Mid-Canada. Neither was in possession of the trailers at the request of Lake Air. 6)The protection the Act gives to purchase-money security holders should be interpreted broadly. To deny Associates priority over Humboldt would provide Humboldt with an unmerited windfall at the sole expense of Associates who gave full value for the purchase-money security interest it obtained from Lake Air.

7_1998canlii13374.txt

2001 SKQB 57 Q.B.G. A.D. 1999 No. 2259 J.C. R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: DONALD THOMAS McDONALD and KENNETH HAROLD McDONALD, THREE BARS HOLDINGS LTD., and WESTERN AG MARKETING CENTRE LTD. DEFENDANTS Michael E. Tomka for Donald McDonald R. Bradley Hunter for Kenneth McDonald FIAT GUNN J. January 31, 2001 [1] Donald McDonald ("Donald") seeks an order pursuant to Rules 344 and 388 of The Queen\'s Bench Rules directing the manner in which monies paid into Court pursuant to garnishee summonses, together with other monies, should be distributed between the parties, Donald and Kenneth McDonald ("Kenneth"). In addition, Donald seeks an order amending the previous orders of Barclay J. on August 19, 1999 and Scheibel J. on December 22, 1999 to the extent necessary to give the relief requested. HISTORY OF THE PROCEEDINGS [2] The parties who are brothers, have been involved in dispute over the division of farming assets since July 30, 1999. pre-trial conference commenced December 22, 2000 and has been adjourned for continuation to February 2, 2001. [3] The following are the orders sought to be varied. [4] August 19, 1999 Barclay J. made the following order: IT IS HEREBY ORDERED: 1. Three Bars Holdings Ltd. shall pay salary to Donald Thomas McDonald the sum of $2,000.00 per month commencing September 1, 1999. The cheques shall [be] payable at month end subject to normal deductions for Canada Pension, income tax and any other statutory deduction required. 2. Three Bars Holdings Ltd. shall pay Kenneth Harold McDonald the sum of $2,000.00 per month commencing September 1, 1999. The cheques shall be payable at month end, subject to the normal deductions for Canada Pension, income tax and any other statutory deduction required. 3. Neither Donald Thomas McDonald nor Kenneth Harold McDonald shall draw any other moneys from the Pregnant Mare Urine operation, Three Bars Holdings Ltd., Western Ag Marketing Centre Ltd. or any other farm income except for the reimbursement of expenses incurred in the normal course of operation and properly receipted and accounted for. 4. No partnership or corporate assets shall be disposed of other than those disposed of in the normal course of the business for the partnership or for the corporation unless by written agreement of Donald Thomas McDionald [sic] or Kenneth Harold McDonald or court order. 5. Three Bars Holdings Ltd. shall continue to pay the normal utility payments of natural gas and electricity commencing September 1, 1999. 6. All revenues received by the Pregnant Mare Urine operation after September 1, 1999 shall go into the accounts for the partnership. 7. Kenneth Harold McDonald and Three Bars Holdings Ltd. shall maintain books of accounts and record all deposits and expenses in timely way. 8. Unless otherwise ordered, Donald Thomas McDonald and his solicitors may make such inquiries of the bookkeeper or accountants of the corporations or partnership as they deem fit. 9. The parties are further directed to attend at least three mediation sessions with mediator. If they cannot agree on mediatior [sic] then it shall be mediator as directed by the Director of Mediation Services. The cost of mediation shall be split equally between the Plaintiff and the Defendants. 10. All parties have leave to apply for any further directions for amendment to this order in the event of the breach of the order by any party. 11. The parties shall forthwith sign the Ayerest Organics Contract and deliver the same to Ayerest Organics. 12. Costs shall be reserved to the trial judge. [5] December 22, 1999 Scheibel J. made the following order with the consent of the parties: 1. The Notice of Motion brought by the Defendants dated November 24, 19999 and the Notice of Motion brought by the Plaintiff dated December 16, 1999 are hereby adjourned is sine die. 2. Pursuant to s. 234(3)(b) of The Business Corporations Act, R.S.S. 1978, c. B-10 and s. 65(1) of The Queen's Bench Act, R.S.S. 1978, c. Q-1.01 [sic], receiver-manager shall be appointed for the Defendants, Three Bars Holdings Ltd., Western Ag Marketing Centre Ltd. and the partnership, McDonald Quarter Horses, effective February 1, 2000 if the parties are otherwise unable to resolve all outstanding issues as between them. 3. If the parties are unable to agree upon receiver-manager prior to February 1, 2000, the Court shall appoint such receiver-manager as it deems appropriate. 4. The receiver-manager shall have all powers usually afforded to receiver-manager under the provisions of The Business Corporations Act, including those powers of investigation found pursuant to s. 223 5. Donald Thomas McDonald shall forthwith endorse and deliver over to the McDonald Quarter Horses partnership account all cheques in his possession or power relating to the sale of horses by the partnership and all cheques as and when received from Wyeth-Ayerst Canada Inc. Donald Thomas McDonald shall also forthwith deliver over to the partnership bookkeeper all invoices and statements relating to partnership income in his possession or power upon receipt of the same. 6. The said Kenneth Harold McDonald shall forthwith pay all outstanding accounts of the McDonald Quarter Horses partnership as and when incurred, including all outstanding accounts for natural gas and electricity, and the wages of Maria Monroe for the period of September 1, 1999 through to December 31, 1999 in the amount of $1,300. 7. The Defendants shall forthwith deliver over to the Plaintiff or his solicitors copies of all bank statements and cancelled cheques for the Defendants for the past three years, together with general ledgers for the corporate Defendants and the partnership, with the delivery and provision of such information to continue on an ongoing basis until further Order. 8. The costs of the within application shall be costs in the cause. [6] No receiver-manager has been appointed. [7] third party, Elizabeth McDonald commenced legal action against Kenneth and Donald as Q.B. No. 3510 of 1999, J.C. Regina, and has garnisheed revenues from the Pregnant Mare Urine operation for approximately one year. As of January 8, 2001 there was approximately $50,118.11 paid into Court and $5,763.44 in uncashed cheques payable jointly to Donald and Kenneth held by Donald. [8] January 3, 2001 Donald gave notice that because of lack of revenue he was unable to continue the Pregnant Mare Urine operation beyond January 15, 2001, which would result in forfeiture of the parties' rights under the Pregnant Mare Urine agreement. [9] Kenneth sought an injunction permitting him to take over the operation and an application to set aside the garnishee summonses. McLellan J. dismissed the application for the injunction with the following fiat issued January 12, 2001: The application by Kenneth McDonald for an injunction is dismissed. Counsel agreed that if the garnishee summonses issued in file QB 3510/99 were set aside the applicant could not show irreparable damage. Those summonses have now been set aside. [10] McLellan J. made the following order on file 2001 SKQB 17 (CanLII), [2001] S.J. No. 10 (QL), at para. 10: ... There will therefore be an order setting aside the garnishee summonses and all sums paid into court and any interest shall be returned to the defendants subject to the provisions of the order of Barclay J. issued in file Q.B. No. 2259/99. [11] Donald is now back before the Court seeking another disposition with respect to the above monies. He alleges that breaches of the orders of Barclay J. and Scheibel J. entitle him to bring this application. The alleged breaches are denied by Kenneth and must be the subject of proof at trial of the issues. [12] In essence, Donald is asking that I sit in appeal on the decision of McLellan J. which I am not prepared to do. McLellan J.\'s order was clear as was the order of Barclay J. [13] Donald\'s application is dismissed. Kenneth is awarded costs of $750.00 which are payable forthwith.

FIAT. The plaintiff sought an order pursuant to Queen's Bench Rules 344 and 388 directing the manner in which monies paid into court pursuant to garnishee summonses and other monies should be distributed between the parties. He requested two 1999 orders be amended to the extent necessary to give the relief requested. The brothers had been involved in a dispute over the division of farming assets since July 1999. A third party commenced legal action in QB No.3510/99 against the brothers and garnisheed revenues from the Pregnant Mare Urine operation for approximately 1 year. The brother's application for an injunction to permit him to take over the operation was dismissed in the January 12, 2001 fiat. His application to set aside the garnishee summonses was granted and all sums paid into court and interest were to be returned subject to provisions in fiat QB No.2259/99. The plaintiff alleged the breach of conditions in the previous orders entitled him to bring this application. HELD: The application was dismissed with costs of $750 payable forthwith. The plaintiff was essentially asking the court to sit on appeal. The orders were clear.

8_2001skqb57.txt

J. THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2008 SKCA 107 Date: 20080825 Between: Docket: 1212 Carlos Huerto Appellant (Respondent on Cross-Appeal) and The Government of Saskatchewan Respondent (Appellant on Cross-Appeal) Coram: Richards, Hunter Wilkinson JJ.A. Counsel: Robert G. Kennedy, Q.C. for the Appellant Gary L. Bainbridge for the Respondent Appeal: From: 2005 SKQB 373 (CanLII) Heard: December 3, 2007 Disposition: Appeal dismissed/Cross-appeal dismissed Written Reasons: August 25, 2008 By: The Honourable Mr. Justice Richards In Concurrence: The Honourable Madam Justice Hunter The Honourable Madam Justice Wilkinson Richards J.A. I. Introduction [1] This appeal arises from a dispute between the appellant, Dr. Carlos Huerto and the respondent, Government of Saskatchewan, over the payment for medical services provided by Dr. Huerto to his patients. [2] Over period of approximately 10 years, the Government withheld payment in relation to what eventually amounted to some 12,000 of Dr. Huerto’s accounts. It did so by using particular billing code which indicated, in effect, that the accounts would not be paid until further information was provided. [3] Dr. Huerto believed the Government’s use of the billing code was unlawful and chose not to provide additional information. He ultimately commenced an action in the Court of Queen’s Bench to compel payment of his accounts. With one small exception, the claim was dismissed on the basis that the action was premature. [4] Dr. Huerto appeals from the Queen’s Bench ruling. The Government cross-appeals in relation to the limited aspect of the case in which Dr. Huerto enjoyed success at trial. [5] I conclude, for the reasons set out below, that both the appeal and the cross-appeal must be dismissed. A. The Legal Framework [6] In order to resolve this appeal it is necessary to understand the broad outline of the scheme which governs payment for physician services in Saskatchewan. [7] The evidence at trial indicated physicians have the option of either working wholly outside the publicly funded health care plan, billing patients directly and having the patients seek reimbursement from the Government or submitting accounts directly to the Government for payment. [8] Most physicians opt for the third approach. In this regard, s. 18(2) of The Saskatchewan Medical Care Insurance Act, R.S.S. 1978, c. S-29 (the “MCIA”), contemplates agreements between individual physicians and the Government in relation to the payment of insured services. It reads as follows: (2) Where physician or other person providing services has entered into an agreement with the minister with respect to payment for insured services provided by him to beneficiaries, the minister shall make payment to him in accordance with the provisions of that agreement. [9] The compensation paid for specific services is spelled out in the “Physician Payment Schedule” referenced in ss. 3(d) and 6(1)(d) of The Saskatchewan Medical Care Insurance Payment Regulations, 1994, R.R.S., c. S-29, Reg. 19 (“the Regulations”). Two versions of the Payment Schedule were in place during the time period relevant to this appeal. They are not materially different. All references to the Schedule in these reasons are to the April 1, 1996 version of it. [10] The accounts submitted by physicians are processed by computer and, if necessary, reviewed by assessment staff or medical consultants. As provided in the Payment Schedule, two letter “code” is applied to accounts which are rejected or returned. For example “AE” means “incorrect date of birth”, “BQ” means “invalid service code” and “DA” means “not approved for payment”. B. Dr. Huerto’s Circumstances [11] Dr. Huerto is cardiologist. He has private clinic in Saskatoon. [12] In 1985, Dr. Huerto entered into “Direct Payment Agreement with Physicians” (the “Direct Payment Agreement”) with an agency of the Government known as the Medical Care Insurance Commission (now the Medical Care Insurance Branch (“MCIB”)). The Agreement says payments will be made in accordance with the Physician Payment Schedule, described above, and provides as follows: 1. [MCIB] shall make payment directly to the physician…for insured services provided by the physician to beneficiaries with respect to accounts submitted directly to [MCIB]. 2. Payment for each service shall be in accordance with: (a) MCIB’s payment schedule and the Assessment rules contained in that schedule applicable to the service on the date it was provided; and (b) The regulations made under The Saskatchewan Medical Care Insurance Act. 3. The physician agrees to accept the payment referred to in section hereof as payment in full. 4. [MCIB] or the physician may request reassessment of an account. [13] In 1993, Dr. Huerto entered into an Automated Claim Submission Agreement pursuant to which he began to submit his accounts to the Government by electronic means. [14] Dr. Huerto’s style of practice involves an unusually frequent use of diagnostic tests such as electrocardiograms (“ECGs”), echocardiograms and Holter monitors, device for tracking the electrical activity of the heart. [15] In the early part of 1994, MCIB had difficulties processing Dr. Huerto’s claims. Those problems appear to have arisen in large part because the claims were regularly submitted out of chronological order. This caused the computer to reject them with the result that they had to be dealt with manually. [16] In consequence, Government officials developed special protocol (the “Protocol”) for dealing with Dr. Huerto’s accounts. MCIB began using it in the summer or fall of 1994. The Protocol reads as follows: 1. Echocardiograms, service codes 322A and 323A should be assessed using the new payment schedule rules and codes for multiples during the year using January 1, 1996 as start date. This means up to four echocardiograms will be paid during the year with the first at 100% and the second at 50% and the final two at 25%. All others should be rejected with explanatory code FK. 2. Holter monitors (service code 141D and 142D) are to be paid if the interval between series of these codes exceeds 100 days, anything less than 100 days should be rejected explanatory code AU. 3. Reject ECG’s service code 32D performed within days following stress testing service code 62D with an explanatory code AU. 4. Reject the second and third visit service and associated ECG within three days, explanatory code AU. 5. Convert any 9D billings in the 90 days following 9D to 5D explanatory code EN. 6. Convert any 3D billings in the 90 days following 9D to 5D explanatory code EM. 7. Convert any 3D billed in 42 days following 3D to 5D explanatory code EM. 8. Out of province beneficiary histories are to be assessed against the excel histories contained on the file; PROF_REV\\EXCEL\\ZHUERTO\\OOPBENS\\A96mmmdd.xls (mmm month and dd day) 9. Reject all 111A claims. 10. Pay maximum service 381M per date. 11. Duplicates reject, explanatory code BA. [Emphasis added] [17] As result of the application of the Protocol, significant number of Dr. Huerto’s accounts were marked with the AU code and not paid pending receipt of additional information. The Payment Schedule describes that code as follows. AU To assist our Medical Consultants in the assessment of this service please resubmit claim form with copy of the operative report or descriptive letter. [18] Dr. Huerto did not respond to the requests for further explanation. The only exception occurred in April of 1996 when he forwarded to the Government form he had devised to address the AU issue and, set out in keeping with the terms of his form, detailed information about 16 selected patients. There was an exchange of correspondence between Dr. Huerto and the Government but the claims were not resolved and MCIB ultimately took the position that they were out of time and not payable. [19] Dr. Huerto commenced his action against the Government in May of 1997 and sought payment for the services which had attracted the AU code. C. The Decision of the Trial Judge [20] The trial judge began his decision by rejecting the Government’s argument that Dr. Huerto’s claim must fail because he had not responded fully to the requests for further information within six months from the dates on which services had been rendered. This submission was based on time limits prescribed by the combined effect of s. 16(1) of the MCIA and s. 11(1) of the Regulations. The trial judge found that Dr. Huerto’s accounts contained the information specified in the “Form of Account” section of the Payment Schedule and said it would be illogical to deny payment merely because Dr. Huerto had not satisfied requests for further information within six months from the date services were provided. [21] The trial judge then turned to Dr. Huerto’s argument that the AU code could not be applied to the services in issue. In so doing, he rejected the idea that the Government was obligated to pay physician’s account simply because the services in question had been performed. In his view, the Government was entitled to use the AU code to inquire why particular service had been provided. [22] The trial judge next considered Dr. Huerto’s argument that, by its use of the AU code, the Government was attempting to regulate his pattern of practice, matter Dr. Huerto contended could be addressed only by the appointment of Joint Medical Professional Review Committee (“JMPRC”) established pursuant to s. 49.2 of the MCIA. The judge found that the Government had not attempted to regulate his pattern of practice. He concluded the AU code had been used to seek explanations for individual services which were questionable in light of the histories of particular patients. [23] The trial judge awarded Dr. Huerto damages in the amount of 30 percent of the billings for the 16 patients for whom Dr. Huerto had submitted additional information in April of 1996. He declined to award any damages with respect to the rest of Dr. Huerto’s accounts. In his view, Dr. Huerto’s failure to respond to the requests for further information, or to make any reasonable effort to do so, rendered this aspect of his claim premature. [24] This case raises number of issues. With respect to the appeal proper, Dr. Huerto does not directly question the trial judge’s conclusion that his action is premature. Rather, his attack is directed at the Protocol and the Government’s use of the AU code. He makes four points: (a) The Protocol is invalid because it amounts to unilateral amendment of the Payment Schedule; (b) In any event, the Government has no authority to create an individualized payment schedule for particular physician; (c) The AU code was not applicable to Dr. Huerto’s accounts because they did not involve the provision of “unusual” services; and (d) The Protocol was unlawful because it was an attempt to regulate Dr. Huerto’s pattern of practice. [25] For its part, the Government raises two issues by way of cross-appeal. It contends: (a) The large majority of Dr. Huerto’s claims are barred because they were not submitted within six months of the date when the services in question were provided; and (b) The trial judge should have declined jurisdiction because Dr. Huerto failed to take advantage of the internal appeal procedures available to physicians dissatisfied with the Government’s assessment of their accounts. Analysis A. Unilateral Amendment of the Payment Schedule [26] Dr. Huerto’s first submission is that the Protocol is, in effect, an amendment of the Payment Schedule by way of administrative fiat and hence invalid. More specifically, he says the Protocol creates special rules not found in the Payment Schedule for the payment of ECG and Holter monitor services. [27] The central problem with this submission is that it characterizes the Government’s use of the AU code as refusal to pay for services. But, that is not what the code indicates. It merely represents request for further information about the service in question. As noted above, the Payment Schedule defines the AU code in these terms: AU To assist our Medical Consultants in the assessment of this service please resubmit claim form with copy of the operative report or descriptive letter. [28] In this case, but for the exception of the 16 accounts he attempted to deal with in 1996, Dr. Huerto chose not to respond to the Government’s requests for additional information. As practical consequence of that decision, he received no payment for the services in issue. However, the fact he was not paid does not mean the AU coding caused that result. By marking service “AU”, the Government was simply asking for more information. It was not denying payment. [29] In response to this point, Dr. Huerto says the real world effect of applying the AU code to some 12,000 accounts was to refuse compensation. He submits that, in practical terms, it is impossible to provide such large amount of additional information. In other words, he contends the Government has put him in situation where he cannot do the paperwork necessary to receive payment for the services he provided. [30] This line of attack is unpersuasive. The reason Dr. Huerto is currently facing some 12,000 AU requests is because he refused to respond to them as they accumulated. His current dilemma is substantially of his own making. He is not entitled to prevail in this litigation because he refused to provide further information with respect to his accounts and let some 10 years elapse before taking action to deal with the matter. The simple accumulation of AU requests over the years does not change their essential character. [31] Dr. Huerto goes on, by way of an alternative approach to this issue, to say the Protocol creates “timing requirements” for the provision of ECG and Holter monitor services which are not included in the Payment Schedule. This submission is correct insofar as it goes. However, in order to properly assess its merit, it is necessary to look more deeply at the Payment Schedule. [32] Section 6(1)(d) of the Regulations says physician is to be paid “… in accordance with the physician payment schedule and the assessment rules contained in that schedule.” The Payment Schedule, as result, is the central feature of the payment regime. In my view, it does not anticipate that the Government will pay each and every account rendered by physician merely because the services underpinning such accounts have been provided. Rather, as might be expected in system which governs the expenditure of public funds, it contemplates that the Government has some authority to look behind the face of the accounts presented for payment. [33] This is made entirely clear by key section of the Payment Schedule entitled “Assessment Rules”. The “Introduction” aspect of that section states as follows: Claims for insured services submitted by any mode of billing are subject to the assessment rules…. The relationship of the current service to prior or subsequent services may result in payment at an amount which differs from the payment listed in the Payment Schedule. previous payment may be adjusted due to the subsequent submission of claim for related service…. When request is made for an explanation or outline of circumstances in order to assess claim, Saskatchewan Health shall determine whether the explanation is acceptable. [34] The “Explanatory Codes” section of the Schedule also reveals an underlying assumption that an account need not be paid merely because it is presented to the Government. It sets out codes which involve the denial of payment. For example, code “AX” is described as “A Medical Consultant has reviewed this claim. The circumstances described are not considered sufficient to warrant additional payment”. [35] Thus, overall, it is apparent that the Payment Schedule allows the Government, in at least some circumstances, to request more information about the services underpinning an account and, in appropriate situations, to deny payment of an account. The Schedule does not oblige the Government to compensate physician merely because service has been provided and an account submitted. [36] It can be seen, therefore, that the aspects of the Protocol impugned by Dr. Huerto are not inconsistent with the Payment Schedule. They merely set out the circumstances in which further information will be requested in relation to the provision of ECG and Holter monitor services. Indeed, by requiring the application of the AU code to Holter monitor test provided within one hundred days of another such test and to an ECG provided within three days of stress test, the Protocol ties directly into the “Assessment Rules” portion of the Schedule. In particular, it ties into the aspect of those Rules, referred to above, which states that accounts may be adjusted with reference to the relationship between the service being billed and prior or subsequent services and, in addition, may be adjusted with reference to the submission of claims for related services. [37] This reading of the Payment Schedule is not inconsistent with s. 17(1)(c) of the MCIA which is to the effect that the intention and purpose of the Act is not to establish medical care insurance plan under which “the exercise of professional judgment by physicians is in any way diminished.” In my opinion, this broad statement of principle should not be read so aggressively as to mean the Government, as the payor in publicly funded health care system, has no right to ask questions about the accounts presented for payment by physicians. In some circumstances, it might be possible to raise an argument that refusal to pay accounts, or certain kinds of accounts, is inconsistent with s. 17(1)(c). However, need not resolve that issue because it does not arise in this case. The Government has not denied payment of Dr. Huerto’s accounts. Nor has it had the opportunity to take issue with Dr. Huerto’s explanation of the accounts. For example, Dr. O’Carroll, Medical Manager of Health Services with MCIB, testified that he had never heard or received the rationale offered by Dr. Huerto at trial as to why, in his view, intensive use of ECGs and Holter monitor tests was advisable. [38] In my opinion, the Protocol cannot be characterized as an amendment of the Payment Schedule. Properly understood, it is an administrative tool which sets out the situations in which Dr. Huerto will be asked for further information about the provision of specific services. This is fully in line with the terms of the Schedule and is not an amendment of them. B. No Authority to Create an Individualized Payment Schedule [39] Dr. Huerto’s second submission is that the Protocol amounts to an individualized “payment schedule”. He says the Government does not have the statutory authority to create compensation regime which treats him differently than other physicians and contends any payment schedule must apply equally to all. [40] agree that some aspects of the Protocol define Dr. Huerto’s entitlement to compensation in manner unique to him. The clearest example is its ninth point which says “Reject all 111A claims” (“111A” being direct intravenous injection of medication). By directing such claims not be paid, the Protocol makes it impossible for Dr. Huerto to be remunerated for providing that sort of service, regardless of the circumstances in which it is rendered. [41] This appeal, however, is concerned only with the services provided by Dr. Huerto which have been coded AU. For ease of reference, the relevant parts of the Protocol are set out below: 2. Holter monitors (service code 141D and 142D) are to be paid if the interval between series of these codes exceeds 100 days, anything less than 100 days should be rejected explanatory code AU. 3. Reject ECG’s service code 32D performed within days following stress testing service code 62D with an explanatory code AU. 4. Reject the second and third visit service and associated ECG within three days, explanatory code AU. [42] These provisions do not amount to “payment schedule” uniquely applicable to Dr. Huerto. This is because, as explained above, marking an account AU does no more than ask for further information about the particular service provided to specific patient. It does not deny payment for that service. Further, use of the AU code did not alter Dr. Huerto’s entitlement to be compensated for providing an ECG or Holter monitor test at precisely the same rate as other physicians in Saskatchewan. [43] There are situations where the Government has the right to ask for additional information before agreeing to pay an account. The aspects of the Protocol relating to the AU code operationalize that right in the circumstances of Dr. Huerto’s unusual practice. Indeed, the evidence at trial, particularly the evidence of Mr. Trew, MCIB’s Director of Compensation and Professional Review, was that the Protocol was designed to facilitate the payment of Dr. Huerto’s accounts, not to deny or frustrate their payment. [44] The Protocol is obviously an individualized administrative process. However, do not accept the argument that it is “payment schedule” uniquely applicable to Dr. Huerto. C. Unusual Service [45] Dr. Huerto says the ECG and Holter monitor procedures which are at the root of this appeal are standard tests and not “unusual” in and of themselves. As result, he contends they cannot validly attract an AU code. His submission in this regard is based on s. 5(1)(j) of the Regulations. Section 5(1) is set out below: 5(1) The minister may make payment to person for insured services provided to beneficiary where the person presents an account to the minister containing: (a) the full name of the patient; (b) the registration number of the patient; (c) the month and year of birth and the sex of the patient; (d) the location of services as follows: (i) office; (ii) hospital, in-patient; (iii) hospital, out-patient; (iv) home; or (v) other; (e) the diagnosis or diagnostic code prescribed by the minister; (f) where the service is provided in Saskatchewan, the code in the physician payment schedule, chiropractor payment schedule, dentist payment schedule or optometrist payment schedule corresponding to the procedure or treatment performed; (g) where the service is provided outside Saskatchewan, the description of the procedure or treatment performed; (h) with respect to: (i) hospital care, the dates of the first and last visits and the total number of visits; (ii) any service other than hospital visit, the date of each service; (i) the amount charged for each service provided; (j) where the nature of the service is unusual, additional remarks; (k) the name and signature of the person providing service; and (l) where applicable, the name or registry number of the referring practitioner. [Emphasis added] [46] In my opinion, Dr. Huerto’s argument on this part is misplaced. Section 5(1)(j) of the Regulations must be read and understood in the context of the overall physician compensation scheme. Significantly, that scheme includes s. 6(1)(d) of the Regulations which provides that the Government is to make payment for services “in accordance with the physician payment schedule and the assessment rules contained in that schedule”. This is important because, as noted above, the Payment Schedule contemplates that the Government may ask physicians for information beyond what s. 5(1) of the Regulations requires them to include in an account. [47] In other words, s. 5(1)(j) should not be read as meaning the Government is entitled to ask for additional information about service if, and only if, the nature of the service is “unusual”. Rather, it simply stipulates that additional remarks must be included in an account rendered with respect to an unusual service. This does not, in any way, imply the Government can request extra information only in relation to an unusual service. physician’s obligation to include certain material in an account and the Government’s authority to ask for additional information are ultimately two quite different things. [48] The Payment Schedule allows the Government to reduce the payments made on accounts because of the relationship between or among services. As result, it would not be appropriate to read the Schedule as simultaneously denying the Government the right to make the inquiries necessary to determine whether such reductions should be made. In my opinion, the AU code is best characterized, perhaps among other things, as means by which MCIB, on behalf of the Government, can request further information in circumstances where there are concerns about the relationship between the service covered by an account and other services. [49] In short, do not accept Dr. Huerto’s argument to the effect that the Government can request extra information only in relation to “unusual” services. D. Attempt to Regulate Pattern of Practice [50] Dr. Huerto’s final submission is that the Protocol and MCIB’s related use of the AU code are invalid because they amount to an attempt to regulate his pattern of practice. Such matters, according to Dr. Huerto, can only be addressed through JMPRC established pursuant to s. 49.2 of the MCIA. Its relevant parts read as follows: 49.2(1) In this section and in sections 49.3 to 49.9, “committee” means the joint medical professional review committee established by section 49. (2) Where, in respect of insured services provided by physician, it appears to the director that physician has received or may receive from the minister or that physician has caused or may cause the minister to pay to any person, or both, either directly or indirectly, any amount of money by reason of any departure from pattern of medical practice acceptable to the committee, he may refer the matter to the committee. [51] Dr. Huerto was the subject of two JMPRCs in the early 1990s. Both examined his high use of ECGs and echocardiograms over short period of time in relation to the same patients. He notes there have been no pattern of practice reviews since the Protocol has been in place. Dr. Huerto argues, as result, that the Protocol should be seen as means of regulating pattern of practice issues. [52] This same argument was presented to the trial judge. He carefully reviewed the evidence and concluded that the Government had not attempted to regulate Dr. Huerto’s pattern of practice by or through the Protocol. Rather, he found the Government had used the Protocol to seek explanations for questionable individual services. He wrote as follows: [250] have considered the positions of the parties and the evidence which was given at the trial, and have concluded on balance of probabilities that the defendant was not attempting to regulate the plaintiff’s pattern of practice through the use of AU codes. To this end, accept the evidence of Mr. Trew that the AU process was designed to be used to seek explanations for questionable individual services based solely on the histories of the patients in question. Had the development of the protocol and the methodology of dealing with the plaintiff’s submissions emanated out of the pattern of practice concern, it would have been easier and less cumbersome to have simply made the JMPRC referral rather than embark upon utilization of the repeated AU process. [Emphasis added] [53] This is finding of fact and can only be overturned on the basis of “palpable and overriding error”. See: Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] S.C.R. 235. As result, see no basis on which this Court can take issue with the conclusions of the trial judge on this point. [54] Further, although it is not necessary to formally resolve the point, note it is by no means clear that the Government is precluded from dealing with pattern of practice-type issues through its use of the AU code or requests for further information about individual accounts. The benefit of the JMPRC process is that it allows physicians’ practices to be reviewed “in bulk” rather than piecemeal or on an account-by-account basis. But, that said, it is not readily apparent why the mere existence of the JMPRC option should preclude the Government from looking into questionable accounts in more individualized way if it chooses to take such an approach. [55] am not persuaded the Government’s use of the AU code can be defeated on the basis it is an attempt to regulate Dr. Huerto’s pattern of practice. E. Limitation Period [56] The Government contends the trial judge erred in failing to find that it had no obligation to pay the vast majority of Dr. Huerto’s claims because those claims were out of time. This argument is framed as cross-appeal and hence must be taken to relate only to that aspect of the trial judge’s decision which awards Dr. Huerto damages in relation to the 16 patients for whom he submitted extra information in 1996. This is so because the Government may cross-appeal only with respect to the results in the court below. It cannot appeal the reasons for those results. [57] The Government’s argument is based on s. 16(1) of the MCIA. It reads as follows: 16(1) Notwithstanding any other Act, the minister is not required to make payment in respect of an insured service in any case in which the account for payment for that service, containing the information required to enable payment to be made for that service under this Act, is received by the minister after the expiration of the period specified for the purposes of this subsection in the regulations. Section 11 of the Regulations sets six months as the period in which claims must be submitted. [58] The Government contends s. 16(1) of the MCIA does not merely oblige physician to submit request for payment within six months of providing service. It argues the MCIA requires that accounts contain specific substantive detail. On this point, it emphasizes that “account” is defined as follows in s. 2(a) of the Regulations: (a) “account” means an account for payment containing the information required to enable the minister to make payment pursuant to the Act with respect to an insured service; [Emphasis added] [59] In the submission of the Government, Dr. Huerto’s accounts did not have the minimum required content because they did not set out the information requested by way of the AU coding. [60] In my opinion, the trial judge acted quite properly in dismissing the Government’s argument on this point. He did so on the basis that Dr. Huerto’s accounts were sufficiently complete to overcome any problem posed by the six month deadline. He wrote as follows at para. 215 of his reasons for decision: am satisfied that the plaintiff’s claims submissions regardless of the form in which they were forwarded to the defendant, universally contain the “information” required under the payment schedule and the heading of “Form of Account”. Indeed, the defendant has not suggested that the requisite informational items set forth under the designation “Form of Account” were not provided. The accounts apparently contained the patient’s name, the patient’s health services number, the patient’s month and year of birth and sex, the location of the service, diagnosis or diagnostic code, and/or service code corresponding to the procedure or treatment performed. In addition, the submissions recorded the date of the service being performed and the amount charged for each service provided. am of the view that where the submission contains this core requisite information, it is claim properly and duly submitted. If, as matter of fact, that submission is provided to the defendant within six months of the provision of the service, then the billing physician has complied with the six-month requirement. Where MCIB, for whatever reason, considers it necessary to seek further information from the physician, using for example the AU code, that does not alter the fundamental fact that the claim was submitted at the time of its initial receipt by MCIB. [Emphasis added] [61] In general terms, this analysis is surely correct. It would be perverse to read the MCIA as requiring that, in order for an account to be paid, every bit of information demanded by the Government through the use of an AU code, or otherwise, must be supplied before the expiration of the six month period established by the Regulations. This interpretation would mean that, in practical terms, an account submitted the day before the expiration of the six month deadline would be voided by the application of the AU code. Indeed, an account submitted well in advance of the expiration of the six month period would be effectively denied if request for further information was not made until at or near the end of the six month time limit, with the result that there was insufficient time for physician to respond before that limit was exceeded. These potential problems are especially troublesome because there is an element of subjectivity in an AU designation and even the most diligent physician might not accurately anticipate when an account or accounts will attract request for extra comment. [62] The Government suggests such concerns are unwarranted because s. 11(2) of the Regulations allows the Minister to extend the six month deadline in certain circumstances. (2) Where the minister is of the opinion that the minister did not receive an account within the period specified in subsection (1) due to factors beyond the control of the person presenting the account, that period is increased to 12 consecutive months immediately following the provision of the insured service. [63] In my opinion, this is not an effective answer to the points made by the trial judge. Section 11(2) only engages in respect of “factors beyond the control of the person presenting the account”. It is difficult to see how failure to provide all the information that the Government believes is required would, at least typically, be beyond the control of physician. If the physician has the information, it obviously could have been made available. Simply put, s. 11(2) seems to be aimed at situations where, for example, physician is delayed in submitting accounts because of matters like illness or computer malfunctions. It does not readily apply to the situation where physician is in possession of extra information but does not submit it. [64] In summary, I do not accept the argument that Dr. Huerto’s claims were barred by s. 16(1) of the MCIA. F. Alternative Remedies [65] The Government also argues, by way of cross-appeal, that the trial judge should not have awarded damages to Dr. Huerto because he failed to take advantage of the appeal procedure established by the Payment Schedule and the Regulations. [66] In advancing this submission, the Government points to the three stage appeal process set out in the Payment Schedule. Under the heading “Appeal Procedures”, the Schedule provides as follows: Appeal Procedures Saskatchewan Health’s assessment of claim may be determined by referring to the explanatory code in the right hand margin of the payment statement. review of the code (see Appendix B) in conjunction with the Assessment Rules should enable physician to determine the reason for particular assessment. If physician does not agree with particular assessment of an account he/she may: 1. Request review of assessment (special forms available) by writing to: The Director, 2. If dissatisfied with this review further review by Medical Consultant may be requested by writing to: Medical Director 3. physician who is not satisfied with the results of the review by Medical Consultant, may appeal the assessment of the account by writing to: The Secretary of the Medical Assessment Board [67] The Medical Assessment Board referred to in the Payment Schedule is established pursuant to the Regulations. They provide that physician who is dissatisfied with the assessment of an account may appeal to the Board. Sections 21 and 22 read as follows: 21 Where physician, dentist or optometrist is dissatisfied with the minister’s assessment of an account for an insured service provided by him or her to beneficiary, he or she may appeal from the minister’s assessment to: (a) in the case of physician, the medical assessment board; 22 On hearing an appeal pursuant to section 21, board may: (a) confirm the decision of the minister; (b) vary the decision of the minister; or (c) substitute its own decision for the minister’s decision. Similar regulations have been in place for the full time frame relevant to this appeal. See: The Medical Care Insurance Payment Regulations, c. S-29, Reg. 14. [68] There are, of course, variety of situations where the courts have declined to exercise their jurisdiction, or found that their jurisdiction should not be exercised, because of the existence of parallel dispute resolution procedures. In the context of judicial review, it is well established that court should not grant prerogative relief if the applicant has failed to pursue an adequate alternative remedy. See: Harelkin v. University of Regina, 1979 CanLII 18 (SCC), [1979] S.C.R. 561. As well, the courts will not act when legislature has established comprehensive non-judicial system of dispute resolution in particular area. See, for example, Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] S.C.R. 929. [69] However, none of these lines of authority, or any of the other cases cited by the Government, is controlling in the circumstances of this appeal. This is so because the Legislature has expressly provided that the appeal procedure established pursuant to the MCIA does not prejudice a physician’s right to pursue matters in the courts. Section 40(3) of the MCIA reads as follows: (3) Nothing in this section and nothing done thereunder interferes with the jurisdiction of The College of Physicians and Surgeons of the Province of Saskatchewan under The Medical Profession Act, 1981, the Board of Chiropractors under The Chiropractic Act or the Council of the Saskatchewan Association of Optometrists under The Optometry Act, 1985 or prejudices the right of any person to bring an action in court of competent jurisdiction. [Emphasis added] [70] The Government attempts to explain away s. 40(3) by resort to three arguments. First, it suggests the “any person” referred to in the subsection does not include physicians and says the subsection merely is intended to make clear that s. 40 does not remove common law rights to proceed against physicians. In this regard, the Government notes that the MCIA often uses the term “physician” and queries why it employs the word “person” in s. 40(3). [71] see no merit in this argument. Section 40 as whole is concerned with the establishment of appeal procedures with respect to “anything done under or pursuant to this Act or any regulation.” This obviously includes, as central matter, physicians’ complaints about billing issues. As result, the concluding words of s. 40(3) necessarily mean that the existence of an appeal mechanism in relation to billing issues does not preclude physician from attempting to resolve those issues by way of proceedings in the Court of Queen’s Bench. Given the generality of s. 40, see no basis for giving the word “person” in s. 40(3) restrictive meaning which excludes physicians. [72] The Government’s second submission, as understand it, is that s. 40(3) preserves the jurisdiction of the courts and merely speaks to the timing of an action, i.e., the subsection means physician is free to commence an action concerning his or her fees, but may do so only after having exhausted the appeal procedure. see no merit in this argument either. Section 40(3) clearly says that s. 40 does not prejudice the right of any person to bring an action in court. The qualification suggested by the Government is difficult to reconcile with that straightforward language. In my view, the Legislature would have chosen much different wording for s. 40(3) if it had intended to require physicians to exhaust the appeal procedures under the MCIA before resorting to the courts. [73] The Government’s third and final argument with respect to s. 40(3) is that its terms do not appear in Dr. Huerto’s contract, that being the Direct Payment Agreement. Rather, the Government says, the Direct Payment Agreement requires compliance with the appeal procedures by providing as follows: 2. Payment for each service shall be made in accordance with: (a) the Commission’s Payment Schedule and the Assessment Rules contained in that Schedule applicable to the service on the day it was provided; and (b) the Regulations made under The Saskatchewan Medical Care Insurance Act. As result, the Government submits the courts should defer to the appeal procedure under the Act in the same way as they defer to the grievance arbitration provisions in collective bargaining agreements. [74] In my view, this argument is also misplaced. None of the leading cases in the labour area, including St. Anne Nackawic Pulp Paper Co. Ltd. v. Canadian Paper Workers Union Local 219, 1986 CanLII 71 (SCC), [1986] S.C.R. 704 and Weber v. Ontario Hydro, supra, is grounded in legislation which includes provision similar to s. 40(3) of the MCIA. To the contrary, the labour statutes underpinning those cases required that collective agreements provide for “the final and binding settlement”, by arbitration or otherwise, of various kinds of labour disputes. This led the Supreme Court to characterize the labour field as involving comprehensive statutory schemes designed to govern the relationships between employers and employees in that setting. In the present case, s. 40(3) expressly preserves the right to resolve disputes in court and thereby stands entirely at odds with the notion that the appeal procedures in the MCIA should be read as being comprehensive and exhaustive. [75] In the end, therefore, I cannot accept the Government’s submission that the trial judge should have declined to deal with Dr. Huerto’s claim because Dr. Huerto had not fully pursued possible appeals to the Medical Assessment Board. [76] The Government takes no issue with the substance of the trial judge’s decision requiring it to pay Dr. Huerto 30% of the value of the claims submitted in relation to 16 patients in April of 1996. Its only objections were that the claims in relation to those patients had been forwarded too late and that, in light of the appeal provisions under the MCIA, the trial judge should have declined to deal with them in any event. Given that the Government’s arguments on these two points have not succeeded, the trial judge’s decision must stand. V. Conclusion [77] I conclude that both Dr. Huerto’s appeal and the Government’s cross-appeal must be dismissed. [78] In view of the failure of both the appeal and the cross-appeal, there will be no order as to costs in this Court. The trial judge awarded costs to Dr. Huerto in the court below on the basis that the actions of both parties had contributed to the problems underlying the litigation and, most significantly, that Dr. Huerto had encountered at least some success in his quest for damages. There is no reason to interfere with his decision on that point. [79] Finally, as did the learned trial judge, wish to underline the advisability of the Government and Dr. Huerto searching for some cooperative basis on which to resolve the situation they now face. It might be, for example, that test case or two would allow the Medical Assessment Board to provide some substantial clarification of the outstanding issues. Creative thinking might reveal other useful approaches for expeditiously sorting out the points in contention between them. DATED at the City of Regina, in the Province of Saskatchewan, this 25th day of August, A.D. 2008. “Richards J.A.” Richards J.A. concur “Richards J.A. for” Hunter J.A. concur “Richards J.A. for” Wilkinson J.A.

This appeal arises from a dispute between the appellant, Dr. Huerto and the respondent Government of Saskatchewan, over the payment for medical services provided by Dr. Huerto to his patients. Over a period of approximately 10 years, the Government withheld payment in relation to what eventually amounted to some 12,000 of the appellant's accounts. The Government indicated through the use of a billing code, that the accounts would not be paid until further information was provided. The appellant believed the use of the billing code was unlawful and chose not to provide additional information. He started an action in the Court of Queen's Bench to compel payment of his accounts. His claim was largely dismissed on the basis that the action was premature. The appellant appeals from the Queen's Bench ruling and the Government cross-appeal in relation to the limited aspect of the case in which Dr. Huerto enjoyed success. HELD: Appeal and Cross-appeal dismissed. 1) Section 17(1)(c) of The Saskatchewan Medical Care Insurance Act is to the effect that the intention and purpose of the Act is not to establish a medical care insurance plan under which 'the exercise of professional judgment by physicians is in any way diminished'. This broad statement of principle should not be read so aggressively as to mean the Government, as the payor in a publicly funded health care system, has no right to ask questions about the accounts presented for payment by physicians. The Government has not denied payment of the appellant's accounts. Nor has it received the requested information from the appellant. The actions (the Protocol) taken by the Government cannot be characterized as an amendment of the Payment Schedule. The Protocol is an administrative tool which sets out the situations in which the appellant will be asked for further information about the provision of specific services. This is fully in line with the terms of the Schedule. 2) Section 5(1) of the Regulations should not be read as meaning the Government is entitled to ask for additional information about a service if, and only if, the nature of the service is 'unusual'. Rather, it simply stipulates that additional remarks must be included in an account rendered with respect to an unusual service. This does not imply the government can request extra information only in relation to an unusual service. A physician's obligation to include certain material in an account and the Government's authority to ask for additional information are ultimately two quite different things. 3) The Court does not accept that the appellant's claims were barred by s. 16(1) of the Act. It would be perverse to read the Act as requiring that, in order for an account to be paid, every bit of information demanded by the Government through the use of a billing code, or otherwise, must be supplied before the expiration of the 6 month period established by the Regulations. An account submitted the day before the expiration of the 6 month deadline would be voided by the application of the billing code. An account submitted well in advance of the expiration of the 6 month period would also be effectively denied if a request for further information was not made until at or near the end of the six month time limit, with the result that there was insufficient time for a physician to respond before that limit was exceeded. These potential problems are especially troublesome because there is an element of subjectivity in the application of the Protocol and even the most diligent physician might not accurately anticipate when an account or accounts will attract a request for extra comment. 4) The Court cannot accept the Government's submission that the trial judge should have declined to deal with the appellant's claim because the appellant had not fully pursued possible appeals to the Medical assessment Board. The Legislature in s. 40(3) of the Act has expressly provided that the appeal procedure established pursuant to the Act does not prejudice a physician's right to pursue matters in the courts. It stands entirely at odds with the notion that the appeal procedures in the Act should be read as being comprehensive and exhaustive.

9_2008skca107.txt

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 003 Date: January 11, 2011 Information: 32417088 Location: Saskatoon Between: Her Majesty the Queen and Jesse J. Schell Appearing: Cory Bliss For the Crown Michael W. Owens For the Accused INTERIM RULING P.S. KOLENICK, [1] The accused is charged that he did, on or about July 25, 2009, at Saskatoon, having consumed alcohol in such quantity that the concentration in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood operate motor vehicle, contrary to s. 253(1)(b) of the Criminal Code. At the outset herein, the Crown entered stay of proceedings on the other count on the Information, which alleged impaired operation of motor vehicle, contrary to s. 253(1)(a) of the Criminal Code. [2] By letter dated June 28, 2010, the accused had also given notice that he is seeking an order excluding evidence, pursuant to s. 24 of the Charter. He had alleged in that regard, a breach of his rights to counsel of choice under s. 10(b) of the Charter. As well, he had claimed that his rights under ss. and of the Charter against unreasonable search or seizure, and not to be arbitrarily detained had been breached. Therefore, we proceeded on voir dire in respect to those matters and the evidence was applied to the trial proper. At the conclusion of the voir dire evidence, the accused abandoned his Charter application under ss. and thereof. Therefore, the issue which remains is whether the accused is able to establish on balance of probabilities that his rights to counsel under s. 10(b) of the Charter had been breached, such that the Court should order an exclusion of evidence in accord with s. 24 of the Charter. Related to that issue, the Court must also determine whether the Crown has met any onus on it to establish that the accused had waived his rights to counsel. REVIEW OF THE EVIDENCE FOR THE CROWN Constable Colin Boyenko [3] Constable Boyenko of the Saskatoon Police Service was on duty with other peace officers, engaged in Operation Checkstop, randomly stopping motor vehicles to check for matters such as driver’s license, registration, or signs of impairment. At 22:25 hours, he had his first contact with the accused, whom he identified in court. At the time he had spoken to the accused for couple of minutes, during which the accused had produced his driver’s license. The officer also noted that he had flushed face, glassy eyes and the odour of liquor on his breath. As well the accused had indicated he had consumed alcohol. [4] At 22:29 hours the officer read demand for an approved screening device sample using an ALCOTEST 7410 GLC instrument, which the accused understood. They had waited for sixteen minutes to clear any mouth alcohol. At 22:44 hours, the accused was ready, and provided suitable sample, after two attempts. The result was “fail” reading, which would indicate blood alcohol concentration over 100 milligrams percent. [5] Therefore the officer read the accused his rights to counsel. The accused responded that he understood and replied, “nah, fuck it”, as to whether he wished to consult with counsel. At 22:47 hours, the accused was read breathalyzer demand. After the second reading, the accused responded “Yep” that he did understand. At 22:49 hours, he was read the police warning and again he indicated that he understood. [6] The accused was transported to the Police Services building, in the company of the witness, and Constable Schaeffer, arriving at 23:07 hours, with no stops on route. He was taken to the detention area and booked in, but Constable Boyenko had not observed what had occurred at that location. Immediately thereafter however, at 23:12 hours, the officer placed the accused in the south phone room, which included normal telephone book. There is also a list of lawyers on an outside wall, but the accused did not have access to it. [7] In regard to the issue of rights to counsel, the officer claimed that he had noted the following comments as to whether the accused should call lawyer: “I don’t see why”, “I already admitted to pounding four back”, “I know screwed up”, “Why do need one?” [8] The officer explained to the accused that if he did contact counsel, the lawyer could answer any questions, or give advice, because he, as peace officer, could only go so far. The accused appeared to be indecisive on the subject, so the officer dialled the number for Legal Aid duty counsel. That had occurred after the accused had been given his options in that regard. The call with duty counsel lasted for only two minutes, and the officer could not hear that conversation from where he was located outside the phone room. After the call was finished, the accused confirmed that he was satisfied and did not raise the issue of contacting lawyer again. He had been given all of his options and decided to use Legal Aid duty counsel. He had not sought to call counsel of choice. [9] In due course the accused provided breath samples of 190 milligrams percent and 180 milligrams percent, at 23:31 hours and 23:54 hours, respectively, and was released from custody. [10] In cross-examination Constable Boyenko confirmed that he could not recall the actual model of the approved screening device he had used that night. He agreed that his police report had omitted reference to “GLC” as part of that description of the instrument, which counsel for the Crown had confirmed with him before testifying by reference to the correct wording in the Criminal Code. [11] He also referred to the investigator’s check sheet to confirm that the accused was cooperative and coherent. There was no indication that he had bloodshot eyes, the odour of liquor was light, good coordination, good balance, no swaying or balance issues, good attitude, good speech, no dry mouth, and no difficulty pronouncing words, were among the other observations. [12] The officer was referred to various aspects of his notes made at the time, and the police report which would have been prepared hours after the fact. He confirmed that the accused had made the prior mentioned remarks about their being no benefit to contacting lawyer at roughly 23:12 hours, when he had been placed in the phone room. In that regard as well, he confirmed that there had indeed been phone book when the accused was placed in the phone room, or else he would have indicated in his notes. However, he could not recall if he had actually spoken to the accused in respect to the phone book, nor did he remember if the accused had actually looked in the phone book. Further he had not allowed the accused some time to consider choice of counsel, although he had advised at the scene he could contact any lawyer that he wished. There was no rush to get the Intoxilyzer samples, as matters unfolded during the course of the investigation. As well, he had not been offered chance to use phone outside the phone room, in order to make the call himself, rather than the officer dialling the number from the phone room. Further he had not been shown list of lawyers outside the door of the phone room. The accused had seemed to be indecisive on the subject of who he might call, so the officer called Legal Aid duty counsel. The accused had been told he could contact Legal Aid duty counsel or counsel of choice from the phone book. [13] Generally the officer disputed that there had been any significant difference between his testimony and his report and notes which he had prepared and disclosed. That was so even though he had not used quotation marks in all instances where indicating what the accused had stated, and abbreviations and symbols for other aspects of the evidence as it allegedly unfolded, in order to explain under oath what had allegedly occurred. One exception in that regard was the officer having conceded that there had been no mention of odour of alcohol from the accused’s breath, when he checked his notes and confirmed there was not. [14] He disputed any suggestion that if matter was not in his notes, it had not happened. However, he agreed that memories can fade with the passage of time. [15] In re-examination the officer confirmed that in his notes the accused had made the quotations even though there had been no quotation marks. As well, he had read some matters to the accused, which had been indicated in his notes in shorthand. Also he had no notes of any problems with the phone book being out of the ordinary, so he could assume therefrom that the phone book was there as usual. [16] The officer did not recall that the accused had asked for more time for anything, nor to be left alone to decide regarding choice of counsel. As well, he had understood his rights to counsel of choice, and had no problem consulting with Legal Aid duty counsel. Constable Clayton Schaeffer [17] Constable Schaeffer of the Saskatoon Police Service confirmed that he had been involved with Operation Checkstop and had an encounter with the accused. In due course the accused had registered “fail” on the approved screening device. The officer had noted on the accused smell of alcohol from him, and the loss of muscle tone in his face. [18] As noted, there had been some confusion in the evidence of Constable Boyenko as to the precise nature of the approved screening device which the officer had used at the material time. Constable Schaeffer had provided some clarifying disclosure while the trial was ongoing. However, the Defence objected to the information being part of the evidence of Constable Schaeffer until there could be an opportunity for the accused to receive and consider this material for the purposes of full and effective cross-examination on its merits. [19] When the trial was reconvened, it was confirmed by the Defence that the required disclosure had been made and we continued with the examination-in-chief of Constable Schaeffer. In general, although his testimony covered the whole investigation, his main purpose had been as qualified technician, while Constable Boyenko was the investigator. [20] The officer confirmed from his notes that the “fail” result had occurred at 22:35 hours. Thereafter they departed to the Police Services building, arriving at 23:05 hours. He was in the general area of the booking desk, when the accused had been booked by Constable Boyenko. He left them briefly to photocopy the accused’s driver’s license for his records. In due course, he had attended at the phone room, where Constable Boyenko had preceded with the accused. The officer had not recorded in his notes the time when he had arrived at the phone room, but had set up the Intoxilyzer at 23:15 hours to receive the breath samples. Prior to the samples being taken, he had completed with the accused document known as the Qualified Technician’s Interview Notes, which was entered as an exhibit in these proceedings (exhibit P-2). The officer had omitted to ask one of the questions therein which included the information that he could talk to any lawyer he wanted. Despite that, it was his belief, as reflected from the other entries on the document and his discussion with the accused, that he was satisfied with the consultation with Legal Aid, and had no desire to contact another lawyer. He had not expressed to the officer, nor anyone else, any dissatisfaction regarding rights to counsel. In due course, as noted, he provided breath samples of 190 milligrams percent and 180 milligrams percent at 23:31 hours and 23:54 hours, respectively. It was not apparent from the taking of the samples that the accused had any issues with rights to counsel. [21] In cross-examination, Constable Schaeffer confirmed it would have taken roughly four or five minutes to set up the instrument, while the accused remained with Constable Boyenko at the booking counter. Regardless, he had no involvement with the accused in respect to the issue of choice of counsel, and ensuring the accused had ample time for that to occur, because that would normally be the duty of Constable Boyenko as investigator. The officer confirmed also that he had not addressed the issue of choice of counsel as contained on the first page of exhibit P-2 as indicated by the lack of time entry. However, he had addressed the supplementary Charter warning contained on page two of the document, even though the time had not been entered. Further, there had been phone book in the room at the material time, which the accused could have used, even though the officer had not specifically referred the accused to that list therein. There was also list of lawyers outside the phone room to which the accused had not been referred, because it is intended to be more of reference list for the police. Regardless, the accused had never given any indication that he wished to contact another lawyer. If he had, the proceedings would have been stopped for that to occur. However, the officer had not specifically asked the accused if he was satisfied and had enough time to contact lawyer of choice. [22] The officer confirmed also that from timing standpoint, the accused may have only been on the phone for two or three minutes with Legal Aid duty counsel. In that regard, the officer had no problem with Legal Aid duty counsel being counsel of choice if the accused had been told he has the right to contact any lawyer he wishes. [23] In re-examination Constable Schaeffer advised that if an accused asks to contact Legal Aid duty counsel, that will normally occur. Otherwise, the choice of counsel will usually be canvassed. EVIDENCE FOR THE DEFENCE Evidence of the Accused [24] The accused confirmed that after he had been detained at the scene and read his rights from card, he had been transported to the Police Services building. While he was being booked at the detention desk, there had been no discussion with the police regarding rights to counsel. On route to the phone room with Constable Boyenko, they spoke regarding the accused making contact with Legal Aid. The accused could not see any point with making contact with Legal Aid. However, on the suggestion of Constable Boyenko that call was made, and the accused consented to that happening, to see what would happen to him. Regardless, the officer had not pointed out the phone book, nor any other list of lawyers. The only option discussed was Legal Aid. The accused was not left with time to consider what other options as to choice of counsel might be possible other than Legal Aid duty counsel by either peace officer during the course of events. At the time, the accused had said there was no need for contact with another lawyer because he had spoken to Legal Aid duty counsel. [25] The accused testified further that he did not know any other lawyers and was not familiar with police procedure, but Constable Boyenko seemed to be in rush. The accused was anxious to be cooperative with the whole process. However, he was not given any time by Constable Boyenko to consider what other options might be possible other than Legal Aid on the matter of choice of counsel. [26] In cross-examination the accused agreed that his memory may have been affected somewhat by the passage of time. In that regard he was somewhat uncertain as to what matters he had specifically been read by the officers at the scene, but paid better attention to their comments once they attended at the Police Services building. In hindsight he agreed he had been read at the scene his rights to counsel but said “no, fuck it” because he was not interested. He became more interested in rights to counsel when they arrived at the Police Services building because the officer thought the lawyer could answer any questions and give advice. He agreed that he might not have contacted any lawyer except for that suggestion by the officer. [27] The accused also believed that the door to the phone room was open when he was speaking to Legal Aid duty counsel, but that was not concern to him. As well, although he had been advised he could call any lawyer he wished, the accused had declined that offer by the police. When they spoke in the hallway regarding rights to counsel, the accused believed they were referring to Legal Aid only, so there was no need to contact any other lawyer. The accused had not been interested in contacting any lawyer but did so at the suggestion of the officer. 1) Has the accused established on balance of probabilities that his rights to counsel in s. 10(b) of the Charter has been breached? If so, should the Court make an order excluding the evidence in accord with s. 24 of the Charter? 2) Has the Crown met its onus on any issue that the accused had waived his rights to counsel? [28] My thanks to the accused for filing legal brief, which was of great assistance. It included the following authorities: 1. R. v. Manninen, 1987 CanLII 67 (SCC), [1987] S.C.R. 1233 2. R. v. Therens, 1985 CanLII 29 (SCC), [1985] 3. R. v. LaPlante, 1987 CanLII 209 (SK CA), [1987] S.J. No. 723 4. R. v. Barbon, [1986] B.C.J. No. 2904 5. R. v. Gilbert, [1988] 6. R. v. Clarkson, 1986 CanLII 61 (SCC), [1986] 7. R. v. Feeney, 1997 CanLII 342 (SCC), [1997] 8. R. v. Czorny, [1996] O.J. No. 3410 9. R. v. Meston, [1995] A.J. No. 876 10. R. v. Marion, [1999] S.J. No. 918 11. R. v. Wingerter, [1998] S.J. No. 768 12. R. v. McDonald, [2001] S.J. No. 796 13. R. v. Waskewitch, [2001] S.J. No. 318 14. R. v. Niles, [2001] S.J. No. 97 15. R. v. Cohoon, 2001 CanLII 33818 (SK PC), [2001] S.J. No. 696 16. R. v. McLaren, [2001] S.J. No. 727 17. R. v. Steinke (unreported March 5, 2002) (Sask. Prov. Ct. Whelan J.) 18. R. v. Jacobs, 2002 BCPC 227 (CanLII), [2002] B.C.J. No. 1358 19. R. v. Ryland, [2010] S.J. No. 115 20. R. v. Erickson, 2010 SKPC 38 (CanLII), [2010] S.J. No. 224 21. R. v. Jacobi, 2006 SKPC 81 (CanLII), [2006] S.J. No. 773 22. R. v. D.P.W. (2008), 2008 SKPC 95 (CanLII), 319 Sask. R. 247 23. R. v. George, [2010] S.J. No. 226 24. R. v. Coleman (Mar. 24, 2010, Saskatoon Information #24361031 25. R. v. Lozinski (April 15, 2010, Saskatoon Information #24056148 26. R. v. Epp, 2010 SKPC 89 (CanLII) 27. R. v. McCrimmon, 2010 SCC 36 (CanLII), [2010] S.C.J. No. 36 28. R. v. Willier, 2010 SCC 37 (CanLII), [2010] S.C.J. No. 37 [29] The Crown had provided these judgments: 1. R. v. Kenneth Edginton, 2010 SKQB 381 (Sask. Q.B.) (CanLII) 2. Willier v. The Queen, 2010 SCC 37 (CanLII), 2010 S.C.C. 37 (S.C.C.) 3. R. v. W.(M.D.), 2001 SKQB 566 (Sask. Q.B.) (CanLII) 4. Baig v. The Queen, 1987 CanLII 40 (SCC), [1987] S.C.R. 537 (S.C.C.) 5. R. v. Turenne, 2002 SKPC 39 (Sask. Prov. Ct.) (CanLII) 6. R. v. James Sielski, 2007 SKPC 119 (Sask. Prov. Ct.) (CanLII) 7. R. v. Ogrodnick, 2006 ABQB 91 (Alta. Q.B.) (CanLII) [30] The pertinent provisions of the Charter state as follows: 10. Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefor; (b) to retain and instruct counsel without delay and to be informed of that right; and (c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful. 24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. (2) Where, in proceedings under subsection (1), court concludes that evidence was obtained in manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [31] In the legal brief, the accused has alleged that his rights to counsel had been infringed, in the manner in which the investigation had unfolded. In that regard, the brief makes the following general observations, commencing at page 2: b) The Cases Of significance in this area of the law is R. v. Manninen (1987), 1987 CanLII 67 (SCC), 34 C.C.C. (3d) 385, decision of the Supreme Court of Canada which states: Section 10(b) imposes at least two duties on the police in addition to the duty to inform the detainee of his rights. First the police must provide the detainee with reasonable opportunity to exercise his rights to retain and instruct counsel without delay. The detainee is in the control of the police and he cannot exercise the right to counsel unless the police provide him with reasonable opportunity to do so. ... Further, section 10(b) imposes on the police the duty to cease questioning or otherwise attempting to elicit evidence from the detainee until he has had reasonable opportunity to retain and instruct counsel. (Emphasis our own) It is submitted that reasonable interpretation of the Manninen decision would indicate that police officer has duty not to request an accused to provide samples of his breath unless and until the police officer has obtained clear and unequivocal waiver from the accused and an indication from the accused that he is aware of all his rights and no longer wishes to contact counsel. In the Manninen decision, the self-incriminating evidence against the accused was excluded pursuant to section 24(2) of the Charter. [32] The said brief continues on the issue, at page 14: It is respectfully submitted that the Court’s analysis in R. v. Ryland, [2010] S.J. No. 115 (SKQB) is appropriate in these circumstances. Firstly, at paragraph 14, Justice Foley states the following: 10(b) of the Charter declares that everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right. In Canadian jurisprudence the right has been held to incorporate the right to choose one’s own counsel but, if that particular counsel is not available within reasonable period of time, the accused is expected to call another lawyer: R. v. Bridges (1990), 1990 CanLII 123 (SCC), 53 C.C.C. (3d) 330 (S.C.C.). At paragraph 15, the Court in Ryland reiterates the principle as laid down in R. v. McLaren, 2001 SKQB 493 (CanLII), [2001] 212 Sask. R. 204 (SKQB) and the reference made by the Ontario Court of Appeal in R. v. McCallum (1999), 1999 CanLII 3685 (ON CA), 131 C.C.C. (3d) 518, where that Court held the following: ...the right to have the assistance of counsel is high on the list of those protections for accused persons which enable them to fully defend the charges brought against them. Including with this fundamental right to counsel, the additional right to choose one’s own counsel enhances the objective perception of fairness because it avoids the spectre of state or Court interference in decision that quite properly should be the personal decision of the individual whose interests are at stake and whose interests the counsel will represent. The Court in Ryland goes on further to cite other examples of other cases in other jurisdictions where the issue of “reasonable opportunity” has been before the Courts. In Saskatchewan, the binding law from the Court of Queen’s Bench is as set out above and should be applied especially where there has been no demonstration by the Crown that there was an urgency to garner evidence and no evidence of intentional delay to reach counsel on the part of an accused. Clearly, legal advice is very important in circumstances where one is required, by statute, to give up their constitutional right to silence. The Courts have recognized this principle when determining what “reasonable opportunity” is when one is faced with choice to either give up evidence against themselves or be charged with criminal offence for failing to provide that evidence against themselves. As noted, what constitutes meaningful opportunity to choose one’s own lawyer is the focus of the McLaren decision supra and portion of that decision bears repeating in this case. At paragraph 13, the Court quoted from the Alberta Court of Appeal in R. v. Luong (2000), 2000 ABCA 301 (CanLII), 149 C.C.C. (3d) 571, where that Court set out list of items that need to be addressed by the police when attempting to discharge their responsibilities under the Constitution. They include the following as set out by the Court in McLaren and are enumerated in Luong as items and 5: 4. The implementational duties are two-fold and arise upon the detainee indicating desire to exercise his or her right to counsel. 5. The first implementational duty is “to provide the detainee with reasonable opportunity to exercise the right (except in urgent and dangerous circumstances).” As is further stated by the Court of Queen’s Bench in McLaren at paragraph 14: The detained person has right to choose counsel and once that intention has been indicated the police may not proceed as if it had been waived. (Leclair and Ross v. The Queen (1989), 1989 CanLII 134 (SCC), 46 C.C.C. (3d) 129, (S.C.C.).) The Crown in this case cannot assert that there was waiver of the right to counsel of choice. As is pointed out by Krueger Q.B.J., in R. v. Herman (2001), 2001 SKQB 100 (CanLII), 204 Sask. R. 79, (as contained at paragraph 15 in McLaren) waiver of the right to reasonable opportunity to speak to one’s lawyer of choice will only be found in the “clearest of cases”. It is respectfully submitted that at no point is there evidence that there was waiver of the right to reasonable opportunity. [33] Also included in the list of authorities for the defence is R. v. Epp, 2010 SKPC 89 (CanLII), 2010 SKPC 089 (Sask. Prov. Ct., Whelan J.) Among the issues considered therein was rights to counsel and the proper procedures to be used by the police and Courts in an analysis of this matter, including consideration of how the onus will shift from the accused to the Crown. At para. 69 of Epp, supra, the Court noted as follows: [69] In R. v. Luong (2000), 2000 ABCA 301 (CanLII), 149 C.C.C. (3d) 571, cited with approval in R. v. Eshappie, 2009 SKCA (CanLII), at paragraph 12, the Alberta Court of Appeal offered guidance concerning the obligations of the police. At point 11, the Court spoke of the informational and implementational duties that arise once an accused has asserted his right to counsel: 12 For the assistance of trial judges charged with the onerous task of adjudicating such issues, we offer the following guidance: 1. The onus is upon the person asserting violation of his or her Charter right to establish that the right as guaranteed by the Charter has been infringed or denied. 2. Section 10(b) imposes both informational and implementational duties on state authorities who arrest or detain person. 3. The informational duty is to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of Legal Aid and duty counsel. 4. The implementational duties are two-fold and arise upon the detainee indicating desire to exercise his or her right to counsel. 5. The first implementational duty is "to provide the detainee with reasonable opportunity to exercise the right (except in urgent and dangerous circumstances)". R. v. Bartle (1994), 1994 CanLII 64 (SCC), 92 C.C.C. (3d) 289 (S.C.C.) at 301. 6. The second implementational duty is "to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger)". R. v. Bartle, supra, at 301. 7. trial judge must first determine whether or not, in all of the circumstances, the police provided the detainee with reasonable opportunity to exercise the right to counsel; the Crown has the burden of establishing that the detainee who invoked the right to counsel was provided with reasonable opportunity to exercise the right. 8. If the trial judge concludes that the first implementational duty was breached, an infringement is made out. 9. If the trial judge is persuaded that the first implementational duty has been satisfied, only then will the trial judge consider whether the detainee, who has invoked the right to counsel, has been reasonably diligent in exercising it; the detainee has the burden of establishing that he was reasonably diligent in the exercise of his rights. R. v. Smith, (1989), 1989 CanLII 27 (SCC), 50 C.C.C. (3d) 308 (S.C.C.) at 315-16 and 323. 10. If the detainee, who has invoked the right to counsel, is found not to have been reasonably diligent in exercising it, the implementational duties either do not arise in the first place or will be suspended. R. v. Tremblay (1987), 1987 CanLII 28 (SCC), 37 C.C.C. (3d) 565 (S.C.C.) at 568; R. v. Ross (1989), 1989 CanLII 134 (SCC), 46 C.C.C. (3d) 129 (S.C.C.) at 135; R. v. Black (1989), 1989 CanLII 75 (SCC), 50 C.C.C. (3d) (S.C.C.) at 13; R. v. Smith, supra, at 314; R. v. Bartle, supra, at 301 and R. v. Prosper (1994), 1994 CanLII 65 (SCC), 92 C.C.C. (3d) 353 (S.C.C.) at 375-381 and 400-401. In such circumstances, no infringement is made out. 11. Once detainee asserts his or her right to counsel and is duly diligent in exercising it, (having been afforded reasonable opportunity to exercise it), if the detainee indicates that he or she has changed his or her mind and no longer wants legal advice, the Crown is required to prove valid waiver of the right to counsel. In such case, state authorities have an additional informational obligation to "tell the detainee of his or her right to reasonable opportunity to contact lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity" (sometimes referred to as "Prosper warning"). R. v. Prosper, supra, at 378-79. Absent such warning, an infringement is made out. [34] The Court also takes guidance from the judgment of R. v. Richard (2010), 352 Sask. R. 363 (Sask. Prov. Ct., Green J.) for the general principles contained therein. Once again, every case is very much product of its particular facts. The accused in Richard, supra, was apparently more motivated to contact counsel than was the accused herein. However that does not significantly detract from the approach taken in Richard wherein the Court concluded that the accused’s rights to counsel had not been violated. [35] In the course of its analysis, the Court noted that the informational duty of the police had been properly complied with, having made reference as follows at para. [6] In R. v. Luong (2000), 2000 ABCA 301 (CanLII), 149 C.C.C. (3d) 571, the Alberta Court of Appeal set out framework for considering such an application. The Court said there are two types of duties on an arresting police officer, the first informational and the second implementational. The informational duty is to inform the detainee of his right to retain and instruct counsel without delay and of the existence and availability of Legal Aid duty counsel. The implementational duties are twofold and arise upon the detainee asking to speak to lawyer. They are: (1) to provide the detainee with reasonable opportunity to exercise the right to consult lawyer except in urgent and dangerous circumstances and (2) to refrain from eliciting evidence from the detainee until the detainee has reasonable opportunity to exercise the right to counsel except, again, in urgent and dangerous circumstances. [36] As noted, the Court concluded that the accused had been given reasonable opportunity to consult with lawyer, commencing at para. [15] The defence referred to R. v. MacLaren, 2001 SKQB 493 (CanLII), [2001] S.J. No. 723 (Sask. Q.B.). In that case, upon arrest, Mr. MacLaren said he wanted to call lawyer. He further said that he didn’t have lawyer and needed to call his wife. The officer told him that once they got to the detachment she would call Legal Aid for him. Once there, the officer dialled Legal Aid and put through the call, with duty counsel on the line, to Mr. MacLaren. He was not allowed to make any other phone call and, in particular, was not allowed to contact his wife until after the breath tests were taken. [16] At paragraph 14 of MacLaren, Justice Foley referred to the trial judge’s decision as follows: Although the trial judge in this case made reference to R. v. Luong he failed to give due consideration to the critical factor of whether, as part of the implementational duty, MacLaren was given reasonable opportunity or, indeed, any opportunity to contact lawyer of his choice and, if not, whether this constituted violation of section 10(b). The detained person has right to choose counsel and once that intention has been indicated, the police may not proceed as if it had been waived. [17] view it as significant that, in MacLaren, the accused was not given the opportunity to contact his wife. This may well have formed part of his attempt to identify lawyer he could call in exercise of his s. 10(b) rights. [18] The Crown referred to R. v. Sielski (2007), 2007 SKPC 119 (CanLII), 306 Sask. R. 174 (Sask. Prov. Ct.), case as well with some similarities to Mr. Richard’s case. In Sielski, the accused, upon arrest, confirmed that he wished to speak to lawyer. At the detachment he was asked if he wanted to speak to lawyer and repeated that he did. Mr. Sielski was placed in the telephone room. He did not specify any particular lawyer to the police officer who then contacted Legal Aid duty counsel for Mr. Sielski. At the end of five-minute phone call Mr. Sielski told the officer he was satisfied with the process. On the trial voir dire, however, Mr. Sielski claimed to have been dissatisfied with his lawyer call. [19] In dismissing the s. 10(b) application, Judge Kolenick, at paragraph 42 of Sielski, said the following: The accused herein had candidly conceded that, although not happy with the Legal Aid duty counsel consultation, he had not voiced any concern at the time, nor inquired of the police as to what options he might have. Had he expressed any concern regarding choice of counsel and the wish to consult further, the police would have been obligated to take reasonable steps in order to address the problem. Instead, even having been specifically told of his rights to consult with counsel of his choice, he opted to remain silent on the subject. In the absence of the accused giving some hint of unhappiness with his contact with Legal Aid duty counsel, the police cannot be expected to speculate the accused wished to contact another lawyer. On the evidence, despite his alcohol consumption, the accused had good comprehension and reasonable communication skills. As such, it was appropriate for the police to infer that his contact with Legal Aid duty counsel was satisfactory and he was waiving further consultation with some other lawyer. Otherwise, the accused should have broached his concerns with them at the material time. [20] In my view, the current circumstances are more similar to those dealt with by Judge Kolenick in Sielski than those dealt with by Justice Foley in MacLaren. am satisfied that Mr. Richard understood his rights to counsel, including his right to call any lawyer he wished to call. am also satisfied that Mr. Richard was able to comprehend what happened at the detachment and, further, that he was able to communicate with both the police officers and with the lawyer he spoke to. [21] If Mr. Richard had equivocated in any way on the issue of being satisfied with the exercise of his right to consult lawyer or if he had expressed any displeasure to the officers about his phone call to Legal Aid duty counsel, there may well have been further implementational steps required by the officers before the breath test was taken, but there was no indication from him that there was problem. Indeed, Mr. Richard acknowledged in his evidence that: (1) he had no doubt he was speaking to lawyer; (2) he was happy with what was discussed in the conversation with the lawyer; (3) he did not, at any time, ask the police officers if he could speak to another lawyer; (4) he confirmed to the police officer that he was satisfied with his call with the lawyer; and (5) the police treated him fairly. CONCLUSION [37] The accused has not succeeded in establishing herein on the balance of probabilities that his rights to consult with counsel under s. 10(b) of the Charter had been violated. In that regard, he was not credible in suggesting in hindsight he had been desirous of considering his options for choice of counsel and had not been permitted sufficient time to make that consideration. Rather, he was entirely disinterested in consulting with counsel, as was his right. At the scene, his response to the offer to consult with lawyer was “nah, fuck it”. At the Police Services building when the issue was broached again, his reply was words to the effect “I don’t see why”, “I already admitted to pounding four back”, “I know screwed up”, “Why do need one?” In those circumstances, it was entirely appropriate for Constable Boyenko to contact Legal Aid duty counsel with the consent of the accused. It was also apparent that the police were alive to the possibility that if the accused did express any dissatisfaction with the process of rights to counsel at any time, they would stop the procedure of the investigation to deal with any concerns. Nothing of that nature was disclosed to the police by the accused, despite that otherwise he was rational and coherent. In that same vein, the accused was clear and unequivocal in his waiver of rights to counsel. In the alternative, the accused had failed to indicate a desire to exercise his right to counsel as required in item 4 in R. v. Luong, supra. Any onus on the Crown as contemplated in Luong has been met, in these unusual circumstances. [38] In light of the accused having failed to establish that his rights to counsel under s. 10(b) of the Charter had been breached, there will be no consideration of potential remedy under s. 24 of the Charter. The application herein by the accused is dismissed and we will need to reconvene court to determine whether the trial needs to continue on any other outstanding issue. P.S. Kolenick,

The accused asserted that his rights to counsel under s. 10(b) of the Charter were breached because the police officer did not bring a list of lawyers to the accused's attention and the accused did not have access to it. The officer may not have drawn the presence of a telephone book to the accused's attention. The officer dialed the number for Legal Aid duty counsel for the accused and the accused spoke with Legal Aid duty counsel prior to providing breath samples of 190 milligrams and 180 milligrams. The accused never indicated that he wished to contact other counsel. HELD: Following a voir dire, the accused's application to exclude evidence was dismissed. The accused had not succeeded in establishing on a balance of probabilities that the accused's right to consult counsel under s. 10(b) of the Charter had been violated. The accused was entirely disinterested in consulting with counsel as was his right and was clear and unequivocal in his waiver of rights to counsel. Alternatively, the accused failed to indicate a desire to exercise his right to counsel.

8_2011skpc3.txt

J. C.A.C. No. 121549 NOVA SCOTIA COURT OF APPEAL Freeman, Roscoe and Flinn, JJ.A. and HER MAJESTY THE QUEEN Respondent Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on March 14, 2008. Kevin A. Burke, Q.C. for the Appellant David M. Meadows for the Respondent Appeal Heard: March 22, 1996 Judgment Delivered: March 29, 1996 THE COURT: The appeal is dismissed as per reasons for judgment of Roscoe, J.A.; Freeman and Flinn, JJ.A., concurring. Publishers of this case please take note that s.38(1) of the Young Offenders Act applies and may require editing of this judgment or its heading before publication. Section 38(1) provides: "38(1) No person shall publish by any means any report (a) of an offence committed or alleged to have been committed by young person, unless an order has been made under section 16 with respect thereto, or (b) of hearing, adjudication, disposition or appeal concerning young person who committed or is alleged to have committed an offence in which the name of the young person, child or young person aggrieved by the offence or child or young person who appeared as witness in connection with the offence, or in which any information serving to identify such young person or child, is disclosed." ROSCOE, J.A.: This is an appeal by a young offender from convictions entered by Judge Atton on three counts of distributing infringing copies of computer software contrary to s. 42(1)(c) of the Copyright Act, R.S. 1985, c.C-42, which is as follows: (1) Every person who knowingly (c) distributes infringing copies of any work in which copyright subsists either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, is guilty of an offence and liable (d) on conviction on indictment, to fine not exceeding one million dollars or to imprisonment for term not exceeding five years or to both. Other provisions of the Copyright Act relevant to this matter are: 2. In this Act, "literary work" includes tables, compilations, translations and computer programs; "telecommunication" means any transmission of signs, signals, writing, images or sounds or intelligence of any nature by wire, radio, visual, optical or other electromagnetic system; (1) For the purposes of this Act, "copyright" means the sole right to produce or reproduce the work or any substantial part thereof ... and includes the sole right (a) to produce, reproduce, perform or publish any translation of the work, (f) in the case of any literary, dramatic, musical or artistic work, to communicate the work to the public by telecommunication, (1) Copyright in work shall be deemed to be infringed by any person who, without the consent of the owner of the copyright, does anything that, by this Act, only the owner of the copyright has the right to do. The three counts related to three different computer programs namely, QEMM Version 7.00, WordPerfect Version 6.0 for DOS and Microsoft MS-DOS 6. It was not disputed that the three programs were protected by the Copyright Act. Representatives of the owners of the three copyrights testified that no consent was given to the appellant to reproduce, copy or distribute their programs. The sentences imposed on the appellant by Judge Atton consisted of total of 18 months probation and 150 hours of community service. The evidence disclosed that the appellant, aged 17 at the time covered by the charges in 1993, was the operator of computer bulletin board, which allowed other computer users to connect to his computer system by modem and leave messages, collect and send e-mail, play computer games, and either upload or download shareware or non-copyrighted computer programs. Judge Atton's critical findings of fact respecting the system and the appellant's role as operator of it are as follows: As operator of the system J.P.M. was the person who organized the files and determined the areas in which each would be stored. He also monitored and reviewed the operation of the system and granted access to various areas of the bulletin board to callers. As he became more familiar with callers he would upgrade their access allowing them further entry to different areas. It appears that the most restricted area was area 20 or Hacker's Delight. This also appears to be the only area which contained commercial copyrighted protected programs. Access to this area was restricted to persons to whom J.P.M. had granted priority known as special. This allowed those persons access to commercial programs and the ability to download or copy them even though they were copyright protected. There were 16 such accesses granted, according to the evidence, by J.P.M. There was evidence that on at least three occasions that this downloading was done during time period in question, and in documents filed there's also evidence that this was done on other occasions by other persons other than the ones that were witnesses. What J.P.M. had done was through his bulletin board made available for distribution and assisted in the distribution of the copyright programs without license from commercial producers and copyright owners of those materials. He also, on occasion personally downloaded or distributed the programs to computers belonging to third parties at separate location. These activities were clearly in contravention of the licensing agreement, and I'm satisfied, the copyrights of the producers of the materials in which were made known to purchasers of the legal copies when purchased. This action was clearly prejudicial to the owners of the copyright in that they were deprived of control over their product which they required to ensure quality and also interferes with legitimate commercial distribution and sale of the product for profit On the issue of the appellant's mens rea, Judge Atton said: J.P.M., in his evidence, admitted to knowledge of all the elements of the offence. He admitted doing what the Crown over period of two and half days had to call witnesses to allege that he did. And further he admitted to knowledge of the licensing agreement and of the copyright. The only apparent defence offered is that he doesn't think that he was breaking the license agreement or doing anything wrong. J.P.M. is an extremely knowledgeable young man in the areas of computers, computer systems and software. He can assemble and modify computer hardware and operate computer software systems such as that with which he ran his bulletin board. It is asking far too much of the Court or any other any other person aware of the evidence, feel, to suggest that this knowledgeable young man did not know or understand that what he was doing was illegal. It is significant that the copyright commercial programs were kept by him in separate restricted area identified as Hacker's Delight available only to persons granted special status and were not where any caller would become aware of them without J.PM's permission." The appellant raises the following ground of appeal: "Did the learned trial judge err in concluding that the Crown had proven its case beyond reasonable doubt?" Specifically, it is submitted by the appellant that the Crown did not prove that the appellant "distributed" the copyrighted material, that the appellant had the requisite knowledge, or that the distribution was to an extent that it prejudicially affected the owners of the copyrights. The appellant refers to the definition of "distribute" in Black's Law Dictionary and argues that the appellant did not distribute the copyrighted material by placing it in restricted area of the bulletin board in "scrambled" format. The definitions of "distribute" and "distribution" relied on are: a) to deal or divide out in proportion or in shares b) the giving out or division among number, sharing or parcelling out, allotting, dispensing, apportioning Since computer programs are expressly protected by the Act as literary works, and the owners of the copyrights have the sole right to communicate the work to the public by telecommunication, there can be no doubt that the appellant created infringing copies of the software by placing them on the bulletin board in such way that they were available to be used and copied by the 16 "special" users. It is also clear that when he accessed his computer by modem from his friends' homes and downloaded the programs onto their computers, he was "distributing" the infringing copies. Furthermore, by controlling the means and manner by which the users of the bulletin board accessed area 20, and providing the software to assist in the downloading by modem by those users, the appellant was also distributing, that is giving out, or sharing the infringing copies. Although it is suggested that the programs were "scrambled" so that they could not be copied or downloaded by the callers, the evidence accepted by the trial judge was that they were "packaged" or "compressed" for efficient storage and "ease of transmission". The second and third points raised concern the findings of the trial judge regarding the knowledge of the appellant and the extent to which the owners of the copyrights were prejudiced. These are both questions of fact upon which there was evidence presented. The sufficiency of that evidence is matter for the trial judge. (R. v. Kent (1994), 1994 CanLII 62 (SCC), 92 C.C.C. (3d) 344 (S.C.C.)). There is no error on the part of the trial judge in law or in its application to the facts. After carefully reviewing the evidence it cannot be said that the verdict was unreasonable or not supported by the evidence and accordingly the appeal should be dismissed. Roscoe, J.A. Concurred in: Freeman, J.A. Flinn, J.A. APPENDIX "A" 1995 CAC NO. 121549 IN THE NOVA SCOTIA COURT OF APPEAL on appeal from THE YOUTH COURT HER MAJESTY THE QUEEN J. P. M. HEARD BEFORE: The Honourable Judge W. J. C. Atton PLACE HEARD: Halifax Provincial Youth Court DATES HEARD: June 22, 1995 August 14, 1995 August 15, 1995 August 16, 1995 August 17, 1995 October 6, 1995 COUNSEL: Kevin A. Burke, Q.C., Defence Counsel David M. Meadows, Crown Counsel CASE ON APPEAL II C.A.C. No. 121549 NOVA SCOTIA COURT OF APPEAL and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT BY: ROSCOE, J.A.

The appellant appealed his conviction of distributing infringing copies of three computer programs. He argued that the Crown did not prove that he had distributed the copyrighted material, or that the distribution was to an extent that it prejudicially affected the owners of the copyrights. Dismissing the appeal, that by placing the copyrighted computer pro-grams on his computer bulletin board in a compressed format, for ease of transmission, and allowing access by modem to the programs, the appellant was distributing the programs to the prejudice of the owner's copyright.

9_1996canlii8701.txt

C.A. No. 02910 NOVA SCOTIA COURT OF APPEAL Hallett, Roscoe and Pugsley, JJ.A. and CHILDREN'S AID SOCIETY OF HALIFAX Respondent Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on February 1, 2008. Appellant appearing in person Pamela J. MacKeigan for the Respondent Application Heard: December 9, 1993 Ruling Delivered: December 9, 1993 THE COURT: Application to adduce fresh evidence on hearing of appeal dismissed per reasons for ruling of Hallett, J.A.; Roscoe and Pugsley, JJ.A. concurring. HALLETT, J.A. This application to adduce evidence on appeal arises on an appeal from an order of the Family Court dismissing the appellant\'s application to terminate a permanent custody order respecting her son who had been taken into care by the Children\'s Aid Society shortly after his birth. The request that this court receive evidence on the appeal is made pursuant to s. 49(5) of the Children and Family Services Act, R.S.N.S. 1990, Chapter and Civil Procedure Rule 62.22 which is the general rule governing the reception of evidence on the hearing of an appeal. Section 49(5) of the Act provides: A49(5) On an appeal pursuant to this Section, the Appeal Division of the Supreme Court may in its discretion receive further evidence relating to events after the appealed order." Civil Procedure Rule 62.22 provides: A62.22(1) The Court on application of party may on special grounds authorize evidence to to be given to the Court on the hearing of an appeal on any question of fact as it directs. (2) The evidence shall be taken by oral examination before the Court or by affidavit or deposition, as the Court directs. (3) The Court on an appeal may on special grounds inspect or view any place, property or thing." In Nova Scotia (Minister of Community Services) v. S.M.S. et al. (1992), 112 N.S.R. (2d) 258 at paragraphs 27‑30 this court decided that the principles enunciated in R. v. Palmer, 1979 CanLII (SCC), [1980] S.C.R. 759 should be applied in considering whether or not to receive evidence on an appeal of an order for permanent custody made pursuant to the Children and Family Service Act. The same rule should apply with respect to an appeal from an order refusing to terminate an order for permanent care and custody. The principles for the reception of fresh evidence were stated by McIntyre J. in R. v. Palmer at p. 775: A(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. (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 believe, 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." In the S.M.S. case (para. 27) this court also decided that the procedure to be followed in dealing with an application to adduce fresh evidence should be as established in R. v. Nielsen and Stolar, 1988 CanLII 65 (SCC), [1988] S.C.R. 480: AThe fresh evidence rule has been stated many times and is summed up in R. v. Palmer, 1979 CanLII (SCC), [1980] S.C.R. 759; 30 N.R. 181; 50 C.C.C. (2d) 193. The principles therein set out are equally applicable in civil case; Munro Glasgow v. Glasgow (1983), 59 N.S.R. (2d) 442; 125 A.P.R. 442 (C.A.), at p. 444, per Macdonald J.A.. The procedure that should be followed by an appeal court in receiving fresh evidence was outlined by McIntyre, J., in R. v. Neilsen and Stolar, 1988 CanLII 65 (SCC), [1988] S.C.R. 480, 82 N.R. 280; 52 Man. R. (2d) 46; 40 C.C.C. (3d) 1, at p. 10 (C.C.C.)." We have heard the representations of the appellant and counsel for the respondent; we have reviewed all eight affidavits and nine letters submitted by the appellant in support of the application. Considering the principles set forth in the S.M.S. case and, in particular, the criteria for the admission of evidence on appeal as enumerated in the Palmer decision we are of the opinion that the evidence should not be received. The various pieces of evidence sought to be admitted fit into one or more of three categories: (I) the evidence was either available at the trial and was not adduced; or (ii) is evidence that is repetitious of evidence given at the trial and is not new; or (iii) is evidence that, taken with the evidence adduced before Judge Daley, could not be expected to have affected the decision not to terminate the order for permanent care and custody of the appellant\'s son M.. We are of the unanimous opinion the application should dismissed. Doane Hallett Concurred in: Roscoe, J.A. Pugsley, J.A. No. 02910 NOVA SCOTIA COURT OF APPEAL and CHILDREN'S AID SOCIETY OF HALIFAX Respondent REASONS FOR RULING BY: HALLETT, J.A. (orally)

The applicant sought to adduce fresh evidence on an appeal of a Family Court order which dismissed her application to terminate a permanent custody order respecting her son. Dismissing the application, that the evidence sought to be admitted was either available at trial and was not adduced, was repetitious of evidence given at trial, or was evidence which could not be expected to affect the decision.

6_1993canlii5662.txt

A.M.B. QUEEN’S BENCH FOR SASKATCHEWAN 2016 SKQB 384 Date: 2016 11 22 Docket: CRM 22 of 2015 Judicial Centre: Melfort BETWEEN: CHANTELLE DRAKE and HER MAJESTY THE QUEEN Counsel: Darin H. Slaferek for the appellant Wade J. Rogers for the Crown JUDGMENT ZUK J. November 22, 2016 Introduction [1] Chantelle Drake [Ms. Drake] appeals her conviction under s. 253(1)(b) of the Criminal Code, RSC 1985, c C-46, of driving with a blood alcohol content of over .08, on the following grounds:a) The learned trial judge erred in law in finding that there was no s. 8 Canadian Charter of Rights and Freedoms [Charter], breach to be secure against unreasonable search or seizure;b) The learned trial judge erred in law in finding that there was no breach of the s. 10(b) Charter giving everyone the right on arrest or detention the right to retain and instruct counsel without delay. [2] On February 16, 2013 Cst. Cameron Schmidt [Cst. Schmidt] was on general duty working the night shift in Tisdale, Saskatchewan. The constable met the Drake vehicle on Heritage Road and the officer performed U-turn to check the vehicle for licence, registration and sobriety. He observed the Drake vehicle make tight turn as the vehicle proceeded from stop sign onto the highway leading out of Tisdale. The officer noted the Drake vehicle leave the snow packed area where most vehicles travel when making the turn. Instead, the Drake vehicle entered the untraveled portion of the road where the snow remained soft. [3] The officer stopped the Drake vehicle where he found the appellant as the lone occupant seated in the driver’s seat. [4] He noted that she was smoking freshly lit cigarette which, in the officer’s experience, was tactic sometimes used by people to hide the smell of something. The officer advised Ms. Drake that he was checking for sobriety and impaired drivers that night and he inquired about any alcohol consumption. She indicated that she had consumed some alcohol that night and he noticed that her eyes were glassy and she was slurring her speech as he spoke to her. [5] Cst. Schmidt asked Ms. Drake to put her cigarette out at which time he detected an odour of alcohol on her breath. Upon asking her to step out of her vehicle he noticed that she stood with circular swing motion deviating several inches from her centre point where she had been standing still. He did not observe any wind or any other factor that would cause her to sway. [6] Then Cst. Schmidt had discussion with Ms. Drake where she provided responses that escalated her consumption that evening leading from three drinks to five drinks. He asked her to come to his police vehicle and he noticed that Ms. Drake appeared to be walking with wide stance in an effort to maintain her balance. Upon arriving at the police vehicle Ms. Drake leaned on the police car for balance. At that point Cst. Schmidt advised Ms. Drake that she was under arrest for impaired operation of motor vehicle. He demanded sample of her breath at 1:30 a.m. at which time he advised her that she had the right to speak to lawyer and further cautioned her that anything that she said could be used as evidence against her. [7] Cst. Schmidt, in advising Ms. Drake of her right to counsel, read from card that he carried with him and advised her of the following: am arresting you for impaired operation of motor vehicle. You have the right to retain and instruct counsel without delay. You may call any lawyer you wish. Legal Aid Duty counsel is available to provide you with immediate legal advice free of charge and can explain the Legal Aid plan to you. can provide you with number you can call free of charge. Do you understand? [8] Ms. Drake acknowledged that she understood the warning and advised she wished to consult with lawyer. [9] Cst. Schmidt was trained to conduct field sobriety tests and it was likely that he did not have an Approved Roadside Screening Device in the vehicle when he stopped Ms. Drake. [10] Upon arriving at the RCMP detachment Cst. Schmidt took Ms. Drake to the phone room to allow her to get in contact with lawyer. Ms. Drake advised she wanted to contact Cara Haaf. It was approximately 2:00 a.m. when Ms. Drake first exercised her right to contact lawyer. Ms. Drake was unable to find Ms. Haaf’s business card. Cst. Schmidt then returned Ms. Drake’s cell phone to her where she located Ms. Haaf’s telephone number. [11] Cst. Schmidt dialled the number and received Ms. Haaf’s voice mail. voice message was left however no response was received back from Ms. Haaf. Cst. Schmidt called 411 to find another number for Ms. Haaf, however the number provide by 411 was the same telephone number previously provided by Ms. Drake. [12] There was further discussion in which Cst. Schmidt advised Ms. Drake that she could contact another lawyer if she wanted to. Initially Ms. Drake said she did not want to call lawyer and simply wished to provide breath sample. Cst. Schmidt testified he was prepared to read her waiver of her right to counsel as he felt she declined the opportunity to contact lawyer. Before he could do so, Ms. Drake indicated that she wanted to call lawyer and provided name of law firm of “Havesteen”. The officer made telephone call on her behalf and received an after-hours message. He asked Ms. Drake if she wanted to try another lawyer and she declined stating that she was happy with just leaving message. At this point she was escorted to the breathalyzer room where she provided her first sample of breath at 2:13 a.m. and the second at 2:34 a.m. [13] On cross-examination Cst. Schmidt confirmed that he was looking for impaired drivers that night. He testified that it was his practice to follow vehicle to determine if there was any evidence of impaired driving. He made the decision to stop Ms. Drake’s vehicle once he observed the tight turn. Cst. Schmidt admitted that there were other vehicle tracks in the soft snow and that Ms. Drake would have not been the first person to make similar tight turn. Cst. Schmidt acknowledged that Ms. Drake responded appropriately to his questions however her responses were slurred. Cst. Schmidt further acknowledged that he did not make notation about the smell of alcohol on Ms. Drake’s breath in his field notes. [14] Cst. Schmidt, when asked if he had ever provided Ms. Drake with information about Legal Aid, he stated that information appeared in the wording on the card which he had previously read to Ms. Drake following her arrest. The telephone room contained Legal Aid’s number on the wall. He could not recall specifically pointing out Legal Aid’s telephone number and he acknowledged that he did not provide Ms. Drake with Prosper warning (R Prosper, 1994 CanLII 65 (SCC), [1994] SCR 236 [Prosper]). [15] At trial Ms. Drake’s counsel alleged that her s. and s. 10 Charter rights had been violated. The trial judge did not find any breach of her Charter rights and Ms. Drake was convicted of driving over .08. She has appealed that decision. Standard of Review [16] In Helm, 2011 SKQB 32 (CanLII), 368 Sask 115, Justice Popescul (as he then was) enunciated the standard of review on summary conviction appeals as follows: 18 The relevant principles set forth by Cameron J.A. in R. v. Johnson, supra, respecting the function of an appeal court on summary conviction Crown appeals from acquittals involving issues of fact have not been judicially or legislatively modified and are still valid today. Accordingly, the standard of review for both Crown and defence appeals from either conviction or acquittal are much the same, except that the defendant has the additional protection found in s. 686(1)(a)(iii) (miscarriage of justice) and the limitations set forth in s. 686(1)(b). In short, both can appeal on factual and legal grounds. 19 On the factual grounds, the standard of review is whether there is evidence upon which trier of fact, properly instructed, could reasonably reach the verdict. See R. v. Bigsky, 2006 SKCA 145 (CanLII), [2007] W.W.R. 99 at para. 74; R. v. Biniaris, 2000 SCC 15 (CanLII), [2000] S.C.R. 381; and R. v. Yebes, 1987 CanLII 17 (SCC), [1987] S.C.R. 168. The appellate court ought not substitute its own view of the evidence for that of the trial judge. However, the appellate court is entitled to review, re-examine and re-weigh the evidence, but only for the purpose of determining if the evidence was reasonably capable of supporting the learned trial judge’s conclusion. See R. v. Burns, 1994 CanLII 127 (SCC), [1994] S.C.R. 656. 20 On question of law, the standard is correctness, and the appellate court should intervene if the decision is not correct in law unless, in the case of defence appeals, there has been no substantial wrong or miscarriage of justice that has occurred. See R. v. Shepherd, 2007 SKCA 29 (CanLII), [2007] W.W.R. 659; and R. v. Henry (B.), 2006 SKQB 469 (CanLII), 286 Sask. R. 154. [17] In Connor, 2013 SKQB 292 (CanLII), 428 Sask 11 [Connor], Justice Ball summarized the standard of review using different language but arrived at the same conclusion as follows: 25 On the first ground, which is factual one, the test is whether the trial judge made palpable and overriding (or manifest) error. While the appeal court must assess the reasonableness of the decision it must not substitute its own view of the evidence for that of the trial judge, especially in matters involving findings of credibility. The extent to which an appeal court may assess or review the findings of fact by the trial judge has been well defined in number of decisions, including R. v. Bigsky, 2006 SKCA 145 (CanLII), 217 C.C.C. (3d) 441), R. v. Andres, 1979 CanLII 2238 (SK CA), [1982] W.W.R. 249 at 251, Sask. R. 96 (Sask. C.A.), R. v. Yebes, 1987 CanLII 17 (SCC), [1987] S.C.R. 168, 36 C.C.C. (3d) 417, R. v. Morin, 1992 CanLII 40 (SCC), [1992] S.C.R. 286, 76 C.C.C. (3d) 193 and R. v. Francois, 1994 CanLII 52 (SCC), [1994] S.C.R. 827, 91 C.C.C. (3d) 289. Findings as to credibility can only be reviewed by an appeal court with great deference: R. v. C.L.Y. 2008 SCC (CanLII), [2008] 26 On the second ground, which is based on an error of law, failure to consider the evidence in its totality and/or an error respecting specific piece of relevant evidence may ground successful appeal: R. v. B.(G.), 1990 CanLII 115 (SCC), [1990] S.C.R. 57, 56 C.C.C. (3d) 181 following R. v. Morin, 1988 CanLII (SCC), [1988] S.C.R. 345, 44 C.C.C. (3d) 193. An error of law occurs where the trial judge erroneously interprets Charter breach: R. v. Yuhas, (1993) 1993 CanLII 9081 (SK QB), 114 Sask. R. 34. [1993] S.J. No. 488 (QL). [18] In Grondin, 2012 SKQB 182 (CanLII), 397 Sask [Grondin], Wilkinson J. outlined the standard of review on appeals of Charter applications as follows: 17 The standard of review on appeal of Charter application, and on the denial or granting of remedies under s. 24(2) is laid out discretely in R. v. Farrah, 2011 MBCA 49 (CanLII), [2011] 12 W.W.R. 694. At para. 7, the Court noted that there are several components to the question: a) When examining judge’s decision on whether Charter breach occurred, the appellate court will review the decision to ensure that the correct legal principles were stated and that there was no misdirection in their application. This raises questions of law and the standard of review is correctness. b) The appellate court will then review the evidentiary foundation which forms the basis for the judge’s decision to see whether there was an error. On this part of the review, the judge’s decision is entitled to more deference and, absent palpable and overriding error, the facts as found by the judge should not be disturbed (see Grant at para. 129). c) The appellate court will also examine the application of the legal principles to the facts of the case to see if the facts, as found by the judge, satisfy the correct legal test. In the criminal law context, this is question of law and the standard of review is correctness (see R. v. Shepherd, 2009 SCC 35 (CanLII) at para. 20, [2009] S.C.R. 527). d) The decision on whether to exclude under s. 24(2) of the Charter is an admissibility of evidence issue which is question of law. However, because this determination requires the judge to exercise some discretion, “considerable deference” is owed to the judge’s s. 24(2) assessment when the appropriate factors have been considered (see Grant at para. 86, and R. v. Beaulieu, 2010 SCC (CanLII) at para. 5, [2010] S.C.R. 248). [19] Counsel for Ms. Drake relies on the Alberta Court of Appeal decision in Loewen, 2010 ABCA 255 (CanLII), 260 CCC (3d) 296 which states: Charter breaches generally involve questions of law that are reviewed for correctness. The underlying factual findings are entitled to deference, absent palpable and overriding error: R. v. Grant, [2009] S.C.R. 353, 2009 SCC 32 (CanLII) at para. 129; R. v. Ngo, 2003 ABCA 121 (CanLII), 327 A.R. 320 at para. 15. While the trial judge's factual findings are entitled to deference, the application of legal standard to the facts of the case is question of law: R. v. Shepherd, [2009] S.C.R. 527, 2009 SCC 35 (CanLII) at para. 20; R. v. Araujo, [2000] S.C.R. 992, 2000 SCC 65 (CanLII) at para. 18; R. v. Biniaris, [2000] S.C.R. 381, 2000 SCC 15 (CanLII) at para. 23. Whether the police officer had an honest subjective belief is question of fact that will not be overruled unless it reflects palpable and overriding error. Whether the facts as found by the trial judge amount at law to reasonable [and probable] grounds is question of law: R. v. Shepherd at para. 20. [20] The Alberta Court of Appeal decision sets the same standard of review of Charter breaches as adopted by the courts of Saskatchewan in Connor and Grondin. 1) Did the learned trial judge err in law in finding there was no s. Charter breach? [21] The appellant contends that the learned trial judge erred in finding that the constable had sufficient evidence of impaired driving to make demand for breath test. Counsel contends that the trial judge failed to consider all relevant evidence in making his determination that there was sufficient objective evidence for the officer to make breath demand. The alleged errors of fact are listed as follows:a) The trial judge failed to consider that other cars had previously made a tight turn as evidenced by other tire tracks in the soft snow; b) The appellant pulled over appropriately after being signalled to do so; c) Smokers will light up cigarette not solely for the purpose of masking the odour of alcohol on their breath, but out of nervousness or other cause; d) The officer did not have any record in his field notes about the smell of alcohol emanating from the appellant’s breath; e) The judge failed to consider evidence that the appellant required no assistance to exit her vehicle, walk to and enter the police cruiser without assistance; f) There was no evidence that the appellant’s behaviour was out of the ordinary; g) The learned trial judge referred to the officer having four and half year’s experience at the time of the incident rather than the three years actual experience. [22] Two components must co-exist for police officer to have reasonable and probable grounds to make demand for breath sample. The officer must subjectively have an honest belief that the suspect has committed an offence and objectively there must be reasonable grounds for that belief (R Bernshaw, 1995 CanLII 150 (SCC), [1995] SCR 254 at para 48). [23] In Gunn, 2012 SKCA 80 (CanLII) at paras and 8, 399 Sask 170, the Saskatchewan Court of Appeal stated the following: Analysis police officer may not demand breath sample of an individual unless the officer has “reasonable grounds to believe” the individual has, within the preceding three hours, driven while impaired or while over the proscribed limit. This means the officer must subjectively (or honestly) believe the individual has driven while impaired or “over .08” within the preceding three hours and that belief must be rationally sustainable on an objective basis (see: R. v. Bernshaw, 1995 CanLII 150 (SCC), [1995] S.C.R. 254, at para. 48). This does not mean that the Crown has to demonstrate prima facie case for conviction (R. v. Shepherd, 2009 SCC 35 (CanLII), [2009] S.C.R. 527, at para. 23), let alone prove its case beyond reasonable doubt (R. v. Bush, 2010 ONCA 554 (CanLII), 259 C.C.C. (3d) 127); rather, the standard of “reasonable grounds to believe” is one of lesser probability which simply requires the reviewing court to determine whether the factors articulated by the officer who made the breath-demand were reliable and were capable of supporting the officer’s belief that the individual had driven while impaired or “over .08” within the preceding three hours. Where an individual challenges the validity of breath-demand on the basis that the police officer's belief was not reasonable, the question for the trial judge is whether, on the whole of the evidence adduced, reasonable person standing in the shoes of the officer would have believed the individual’s ability to operate motor vehicle was impaired (see: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] S.C.R. 241, at p. 250; and R. v. Restau, 2008 SKCA 147 (CanLII), 314 Sask. R. 224 at para. 17). This is question of law and trial judge’s answer to it is measured on appeal against the yardstick of correctness (see: R. v. Shepherd). [24] In essence, the Crown must satisfy the court that the factors articulated by the officer as forming the factual basis for making the breath demand were reliable and capable of supporting the officer’s belief that the suspect had driven while impaired. The standard is whether reasonable person, on the whole of the evidence adduced it to trial, and standing in the shoes of the officer would have also believed that the individual’s ability to operate motor vehicle was impaired. [25] The appellant does not challenge the officer’s subjective belief that he had personally and honestly formed the opinion that the appellant’s ability to operate motor vehicle was impaired. Rather, the appellant challenges the objective basis for that belief, namely that there was not sufficient evidence that the appellant’s ability to operate motor vehicle was impaired. [26] The learned trial judge found that the appellant had driven in an irregular manner by: a) Driving over the snowbank when turning; b) Lighting cigarette to mask the odour of alcohol emanating from her breath; c) Had glassy eyes and slurred speech; d) Admitted to an escalating consumption of alcohol; e) Walked with wide stance and gate which appeared to be abnormal; f) Leaned against the police vehicle once she arrived at the vehicle. [27] When making demand for breath sample, an officer is only required to believe that the suspect’s ability to drive is slightly impaired by drug or alcohol (See Stellato (1993), 1993 CanLII 3375 (ON CA), 78 CCC (3d) 380, affirmed 1994 CanLII 94 (SCC), [1994] [28] On the whole of the evidence, am satisfied that the trial judge properly found that there was sufficient evidence, when viewed objectively, to support the officer’s contention that the appellant was impaired. [29] Cst. Schmidt testified that he made the decision to pull over Ms. Drake’s vehicle and check for sobriety after he observed Ms. Drake make tight turn onto the highway. While this may have been the precipitating factor in the officer to investigate the driver of the vehicle to determine if the driver was affected by alcohol, it was not the only basis upon which the officer formed his decision that the driver was impaired. [30] The officer noted that the appellant had slurred speech and glassy eyes. The appellant admitted to having consumed ever-increasing numbers of alcoholic drinks. He noted the smell of alcohol emanating from her breath once she extinguished her cigarette. He observed her swaying in circular motion few inches off vertical. There appeared to be no noticeable wind or other factor to cause the swaying motion. The officer noted the appellant walking with wide stance and then leaned on the police vehicle. These factors, when taken together, constitute evidence of impairment. When viewed objectively, reasonable person could conclude that there were reasonable and probable grounds for the officer’s belief that the appellant’s ability to operate motor vehicle was impaired by alcohol. [31] The trial judge, in attributing four and half years’ experience to the officer when in fact the officer had only three years’ experience at the time of the offence, did not commit material error. The officer testified that he was trained in field sobriety testing and whether he had three years’ experience or four and half years’ experience is not material and does not constitute palpable and overriding error. [32] The appellant contends that the lack of any reference in the officer’s field notes regarding the smell of alcohol emanating from the appellant is factor that the trial judge failed to consider. The trial judge made determination of credibility that, notwithstanding the officer’s failure to make any notation about the smell of alcohol in his field notes, the officer’s omission did not affect the officer’s credibility on that fact. The trial judge’s findings of fact must be given deference. The trial judge had the benefit of hearing Cst. Schmidt’s testimony and observing Cst. Schmidt on the witness stand. The trial judge was in the best position to make findings of fact based on credibility. There was evidence given by Cst. Schmidt that he recalled the smell of alcohol coming from the appellant’s breath after she extinguished her cigarette. The learned trial judge had evidence upon which he could make that finding of fact. [33] The appellant contends that the learned trial judge ignored evidence that the appellant did not require assistance for her to exit the vehicle and walk to the police cruiser. However, there was evidence provided by Cst. Schmidt that he observed the appellant walking with wide stance that he perceived as the appellant’s attempt to maintain her balance while walking. The officer observed the appellant leaning against the police vehicle upon arrival at the police vehicle. He observed the appellant swaying in circular motion as she stood. These observations, taken at context to the whole of the evidence, are evidence of possible impairment. Not every person who is legally impaired requires assistance to walk or enter vehicle. The police officer is not required to have overwhelming evidence of impairment. The trial judge’s failure to specifically mention that the appellant could walk and enter police vehicle without assistance does not establish that the trial judge failed to consider relevant evidence. [34] The trial judge did not make any findings of fact that were unsupported by the evidence nor did he fail to consider relevant evidence when he held that the officer had sufficient evidence that objectively supported the officer’s belief that the appellant’s ability to drive a motor vehicle was impaired. I dismiss ground one of the appeal. 2) Did the learned trial judge err in law in finding that there was no section 10(b) Charter breach? [35] The appellant contends that the failure of Cst. Schmidt to provide the appellant with the Prosper warning resulted in a breach of her s. 10(b) Charter rights. Once suspect has been detained and indicates desire to contact legal counsel, the state must provide that person with reasonable opportunity to consult counsel and the police may not obtain evidence from the suspect until that opportunity has been given. [36] The Supreme Court, in Prosper, involved fact situation where detainee, who had previously asserted his right to contact lawyer, later indicated change of mind and no longer wished to obtain legal advice. In this situation the police must advise the detainee of his or her right to be given reasonable opportunity to contact legal counsel and the police have an obligation to refrain from eliciting any incriminating evidence until the detainee has been given the opportunity to consult with legal counsel. Any indication of change of mind must be clear and the burden of establishing an unconditional waiver is on the Crown. The waiver must be free and voluntary and must not be the product of either direct or indirect compulsion. The standard required for an effective waiver of counsel is very high. [37] The Alberta Court of Appeal, in Luong, 2000 ABCA 301 (CanLII), 149 CCC (3d) 571 [Luong], set out series of 11 steps for trial judge to follow in determining whether detained person has suffered violation of his or her s. 10(b) Charter rights. The court stated the following at para. 12: 12 For the assistance of trial judges charged with the onerous task of adjudicating such issues, we offer the following guidance: 1. The onus is upon the person asserting violation of his or her Charter right to establish that the right as guaranteed by the Charter has been infringed or denied. 2. Section 10(b) imposes both informational and implementational duties on state authorities who arrest or detain person. 3. The informational duty is to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of Legal Aid and duty counsel. 4. The implementational duties are two-fold and arise upon the detainee indicating desire to exercise his or her right to counsel. 5. The first implementational duty is “to provide the detainee with reasonable opportunity to exercise the right (except in urgent and dangerous circumstances)”. R. v. Bartle (1994), 1994 CanLII 64 (SCC), 92 C.C.C. (3d) 289 (S.C.C.) at 301. 6. The second implementational duty is “to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger)”. R. v. Bartle, supra, at 301. 7. trial judge must first determine whether or not, in all of the circumstances, the police provided the detainee with reasonable opportunity to exercise the right to counsel; the Crown has the burden of establishing that the detainee who invoked the right to counsel was provided with reasonable opportunity to exercise the right. 8. If the trial judge concludes that the first implementation duty was breached, an infringement is made out. 9. If the trial judge is persuaded that the first implementation duty has been satisfied, only then will the trial judge consider whether the detainee, who has invoked the right to counsel, has been reasonably diligent in exercising it; the detainee has the burden of establishing that he was reasonably diligent in the exercise of his rights. R. v. Smith, (1989), 1989 CanLII 27 (SCC), 50 C.C.C. (3d) 308 (S.C.C.) at 315-16 and 323. 10. If the detainee, who has invoked the right to counsel, is found not to have been reasonably diligent in exercising it, the implementation duties either do not arise in the first place or will be suspended. R. v. Tremblay (1987), 1987 CanLII 28 (SCC), 37 C.C.C. (3d) 565 (S.C.C.) at 568; R. v. Ross (1989), 1989 CanLII 134 (SCC), 46 C.C.C. (3d) 129 (S.C.C.) at 135; R. v. Black (1989), 1989 CanLII 75 (SCC), 50 C.C.C. (3d) (S.C.C.) at 13; R. v. Smith, supra, at 314; R. v. Bartle, supra, at 301 and R. v. Prosper (1994), 1994 CanLII 65 (SCC), 92 C.C.C. (3d) 353 (S.C.C.) at 375-381 and 400-401. In such circumstances, no infringement is made out. 11. Once detainee asserts his or her right to counsel and is duly diligent in exercising it, (having been afforded reasonable opportunity to exercise it), if the detainee indicates that he or she has changed his or her mind and no longer wants legal advice, the Crown is required to prove valid waiver of the right to counsel. In such case, state authorities have an additional informational obligation to “tell the detainee of his or her right to reasonable opportunity to contact lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity” (sometimes referred to as “Prosper warning”). R. v. Prosper, supra, at 378-79. Absent such warning, an infringement is made out. [38] This issue was recently canvassed in Saskatchewan in Justice Scherman’s decision in Macnab, 2016 SKQB 61 (CanLII) [Macnab]. Justice Scherman, in following the Alberta Court of Appeal’s decision in Luong, confirmed that state authorities have both informational and implementational duty which must be met to satisfy an accused’s s. 10(b) Charter rights. [39] The informational duty is to inform the detainee of his or her right to retain or instruct counsel without delay and of the existence and availability of Legal Aid and duty counsel. [40] The implementational duty is twofold. First, to provide the detainee with reasonable opportunity to exercise his or her right. Secondly, to refrain from soliciting incriminating evidence until the detainee has had that reasonable opportunity. [41] Once the court is satisfied that the first implementational duty has been satisfied, trial judge must then consider whether the detainee, who has invoked the right to counsel, has acted reasonably and diligently in exercising his or her right. The detainee has the burden of establishing that he or she was reasonably diligent in the exercise of his or her rights. [42] The obligation on the police to provide Prosper warning arises once detainee has asserted his or her right to counsel and has acted diligently in exercising that right. Only when the detainee subsequently indicates that he or she has changed his or her mind and no longer wants legal advice, is the Crown required to prove valid waiver of the right to counsel. [43] Justice Scherman, in finding that Prosper warning is not required in all cases where detainee has stated that he or she no longer wishes to consult with lawyer after attempted to do so, stated the following at paras. 39 and 40 in Macnab. 39 Only if an individual: (a) has been afforded reasonable opportunity to exercise his right to counsel; and (b) has been diligent in attempting to exercise that right but fails to make contact with counsel and then indicates that he or she has changed his or her mind and no longer wants legal advice, is the Crown required to prove valid waiver of the right to counsel and under an obligation to provide Prosper warning. The logic for this is clear. The right to counsel should not be restricted because of the inability to contact counsel where diligent efforts are made to do so. The Prosper warning is intended to ensure that person diligently pursuing the advice of counsel does not feel compelled to abandon that right because counsel is not immediately available. But the requirement for Prosper warning does not arise unless the individual has been making diligent efforts to obtain counsel. 40 In this case, it is clear that Jeffrey Macnab was not diligent in pursuing his right to counsel. He had the available options clearly presented to him. He initially indicated an intention to pursue the option of consulting with North Battleford counsel but then failed to exercise any diligence in pursuing this option or in pursuing any of the other options that were clearly outlined to him. Cpl. Toupin made it clear to Jeffrey Macnab that she was not placing time restraints on him within which to consult with counsel and asked him if he was sure that he was prepared to proceed without consulting with counsel. Since he was not diligent in attempting to exercise his right to counsel, Prosper warning situation does not arise. Further and in any event, the evidence quoted in paragraph 32 above establishes that Jeffrey Macnab was provided the functional equivalent Prosper warning, albeit that the precise formulation for Prosper warning as found in RCMP materials was not used. [44] In the present case the appellant had indicated clear intention to consult with lawyer and made two attempts to reach lawyer of her choosing. She was unsuccessful at each attempt. It was after these failed attempts that she advised Cst. Schmidt of her choice to abandon her efforts to consult lawyer. If the appellant acted reasonably in her efforts to exercise her right to counsel, the constable had an obligation to provide Prosper warning to the appellant. However, if the appellant was not diligent in her efforts to consult with lawyer, then Prosper warning is not required. In effect, Prosper warning does not arise unless the individual has been making diligent efforts to obtain legal counsel. [45] Counsel for the appellant refers to the Saskatchewan Queen’s Bench decision in Brouillette, 2009 SKQB 422 (CanLII), 351 Sask 295 [Brouillette], in support of his intention that Ms. Drake had been acting diligently in her efforts to obtain lawyer. In Brouillette, the accused was attempting to contact lawyer after being arrested for impaired driving. Mr. Brouillette wished to speak with Mr. Behiel and then an attempt was made to contact him at his office. It was 3:09 a.m. and Mr. Behiel was understandably absent from his office. Mr. Brouillette had been placed in telephone room of the RCMP detachment which included table, chairs, telephone and telephone book. Once the officer had been told by Mr. Brouillette that he wished to contact Mr. Behiel, the officer obtained the law office phone number from the yellow pages and dialled the number. The officer reached recorded message at which time he handed the telephone to Mr. Brouillette to allow him to listen to the message. Mr. Brouillette did not leave message and he then advised the officer that he wanted to reach an impaired driving line in Alberta. The officer obtained the Alberta telephone number but received another recorded message. [46] The officer then asked Mr. Brouillette if there was someone else he wished to call or whether he wanted to contact Legal Aid. Mr. Brouillette opted to speak with Legal Aid and the officer contacted the Legal Aid 24 hour call line. Mr. Brouillette was able to speak with Legal Aid duty counsel and advised the officer that he was satisfied with the advice that he had received. [47] Mr. Brouillette contended that his s. 10(b) Charter rights had been infringed as he had not been able to consult with lawyer of his choice. Mr. Justice Koch, in determining that Mr. Brouillette’s s. 10(b) Charter rights had been breached, determined that the police officer had taken control of the telephone calling process and was therefore obligated to do as much as the accused would have done in exercising his s. 10(b) Charter rights to consult counsel of his choice. The officer was familiar with Mr. Behiel and could have obtained his home phone number from the telephone book. The remedy granted by the court was the exclusion of the Certificate of Analyses. [48] In the present case Cst. Schmidt did not take control of the telephone process. He did maintain control of the telephone. It is common practice for police to require the detained person to use telephone provided by the police. It is also common practice for the police to dial the telephone number. This prevents detained person from contacting someone other than the lawyer that he or she has elected to consult. However, requiring the detainee to use telephone provided by the police and having the officer dial the telephone numbers does not necessarily constitute taking over control of the process of contacting legal counsel. Ms. Drake remained in control of the process. Cst. Schmidt controlled only the mechanics. Ms. Drake does not allege any failure by Cst. Schmidt to provide her with telephone nor does she allege that he failed to locate or call any telephone number requested by her. [49] In the present case Ms. Drake selected Ms. Haaf as her lawyer of first choice. Ms. Drake obtained Ms. Haaf’s phone number from her own cell phone directory. After receiving recorded message Cst. Schmidt then searched 411 and obtained the same phone number for Ms. Haaf as earlier provided by Ms. Drake. [50] Ms. Drake then provided name of second law firm. There was no one to answer the telephone of the second law office. Cst. Schmidt did not, however, advise Ms. Drake that she had an option to contact Legal Aid duty counsel. [51] Interestingly, Cst. Schmidt had initially made the decision to provide Ms. Drake with Prosper warning after her first unsuccessful attempt to contact lawyer. Before he could provide her with the Prosper warning Ms. Drake provided name of second law firm that she wished to contact. The second attempt also proved unsuccessful. There is no evidence from Cst. Schmidt regarding his decision not to provide Ms. Drake with Prosper warning after she, for second time, advised that she no longer wished to speak with lawyer. It is matter of mere conjecture whether Cst. Schmidt made calculated decision not to give Prosper warning or whether it was matter of simple inadvertence. Whatever the reason, Cst. Schmidt neither advised Ms. Drake of the availability of Legal Aid duty counsel nor did he provide Prosper warning. Counsel for the appellant contends that failure to advise Ms. Drake of the availability of duty counsel and failure to provide a Prosper warning constituted breach of his client’s s. 10(b) Charter rights. disagree. Ms. Drake did not act reasonably and diligently in pursuit of her right to consult with lawyer. [52] She attempted to contact Ms. Haaf but received recorded message. Cst. Schmidt, to his credit, attempted to obtain an alternate number for Ms. Haaf from 411 but obtained the same telephone number initially provided by Ms. Drake. [53] Ms. Drake after being unsuccessful in reaching Ms. Haaf, indicated to Cst. Schmidt that she no longer wished to speak with lawyer. Cst. Schmidt’s intended response was to provide Prosper warning to Ms. Drake. Before he could provide the Prosper warning she changed her mind and provided the name of law firm she wished to contact. Cst. Schmidt obtained telephone number and dialled the phone number but received recorded message. Then Ms. Drake once again told Cst. Schmidt that she no longer wished to consult with lawyer. He did not wait for return phone call from Ms. Haaf. For reasons unexplained at trial, Cst. Schmidt did not provide Prosper warning after Ms. Drake’s second unsuccessful attempt to contact legal counsel. He was not obligated to provide Prosper warning. Ms. Drake failed to make any further efforts to contact legal counsel. She failed to act diligently in pursuing her right to speak with legal counsel. [54] It is clear that Ms. Drake did not ask Cst. Schmidt to look up any other lawyer’s telephone number nor did she specifically ask for the telephone number to Legal Aid. She did not ask for the officer to wait for period of time until her lawyer returned her call. She did not tell Cst. Schmidt that she wished to speak with another lawyer but did not know who she could call. Cst. Schmidt asked her if she wanted to call another lawyer. She declined and said she was happy just leaving a message. [55] The facts in the present case are similar to the facts in Porter, 2015 SKQB 181 (CanLII), [2015] 11 WWR 832. Mr. Porter was stopped by police and showed signs of intoxication. Mr. Porter registered fail on the Approved Screening Device and was placed under arrest for impaired driving. Mr. Porter was read his rights to legal counsel and provided the name and number of his lawyer to the arresting constable. Two unsuccessful attempts were made to contact Mr. Porter’s lawyer however message was left on the lawyer’s message manager. The constable then asked Mr. Porter if he wished to contact another lawyer. Mr. Porter replied “that’s the only lawyer wanted to speak to”. The officer attempted third call but was unsuccessful in reaching the lawyer and the officer was only able to leave message. Once more the officer asked Mr. Porter if he wanted to contact another lawyer. Mr. Porter remained very specific that he only wished to speak to Mr. Howe, the lawyer of his choice. [56] At trial, Mr. Porter argued that his s. 10(b) Charter right had been infringed where the officer failed to provide Prosper warning to Mr. Porter. It must be noted that the constable had advised Mr. Porter about the availability of toll free number for Legal Aid after Mr. Porter had been unsuccessful in attempting to reach Mr. Howe. The trial judge concluded that Mr. Porter had not acted diligently in pursuit of legal counsel as he refused to speak to anyone other than Mr. Howe. As such, it was not incumbent upon the police to provide Prosper warning to Mr. Porter. This conclusion was upheld on the appeal to the Court of Queen’s Bench. [57] The Crown relies on the decision in Wallner, 2008 SKQB 307 (CanLII), 319 Sask 205, as standing for the proposition that Prosper warning is not necessary where detained person is unable to reach counsel of choice. Mr. Wallner had been offered an opportunity to contact different lawyer but declined as he simply wanted to get the test completed. The trial judge concluded that Mr. Wallner had clearly waived his right to counsel and Prosper warning was not necessary. [58] In the present case Cst. Schmidt did not advise the availability of Legal Aid duty counsel, however he did ask the appellant if she wished to call any other lawyers. She declined the opportunity to call any other lawyers and told Cst. Schmidt that she was happy with just leaving the message. [59] Since Ms. Drake did not testify on the voir dire, and she clearly has the right not to testify, the court is left with only Cst. Schmidt’s version of the events. The appellant does not challenge Cst. Schmidt’s testimony regarding the events occurring at the police station. accept Cst. Schmidt’s version of events. [60] In the circumstances am satisfied that Ms. Drake has not established that she was diligent in her pursuit of legal counsel. There is no evidence that she was confused about her right to counsel nor is there any evidence that she was coerced by Cst. Schmidt to abandon her s. 10(b) Charter right. Ms. Drake indicated that she was satisfied with leaving message for her lawyer. Although the first breath sample was taken at 2:13 a.m., less than 15 minutes after being brought to the detachment, there is no evidence that the RCMP’s failure to wait for response from Ms. Drake’s lawyer resulted in denial of right to counsel. There is no evidence that the RCMP ever received return call from Ms. Drake’s lawyer. It is also reasonable to infer that neither of the lawyers contacted by Ms. Drake would be at work at 2:00 a.m. in the morning. As such, waiting for return phone call would have proven fruitless. [61] Even if I am mistaken in that regard, I am satisfied that Ms. Drake provided a clear and unequivocal indication that she had abandoned her s. 10(b) Charter right to contact legal counsel. She was asked by Cst. Schmidt if she wished to consult with another lawyer. She said “no”. Cst. Schmidt asked if she was satisfied with leaving message. She said that she was happy with just leaving a message. am satisfied under the circumstances, that Ms. Drake’s refusal to speak to another lawyer amounted to waiver of her right to consult legal counsel. As such, Ms. Drake’s second ground of appeal is dismissed. Conclusion [62] For the reasons previously stated, Ms. Drake’s appeal is dismissed in its entirety. Ms. Drake has received the benefit of orders suspending the withdrawal of her driving privileges. Any order continuing her driving privileges shall cease 48 hours after notice of this decision has been sent to Mr. Slaferek.

Criminal Law – Motor Vehicle Offences – Driving with Blood Alcohol Exceeding .08 – Conviction – AppealConstitutional Law – Charter of Rights, Section 10(b) – Appeal The accused appealed her conviction under s. 253(1)(b) of the Criminal Code of driving with a blood alcohol content over .08 on the grounds that the trial judge erred in law finding that there was no breach of her s. 8 Charter rights or of a breach of her s. 10(b) Charter rights. The first ground pertained to the defence’s contention that the officer who stopped the accused and made the breath demand did not have sufficient evidence of impaired driving. The officer testified that he was patrolling for impaired drivers on the night in question and observed the accused make a very tight right-hand turn, entering the untraveled portion of the road where the snow was soft. He noticed that her eyes were glassy and she was slurring her speech. She had just lit a cigarette, which suspects often do to mask the smell of alcohol. When she did put the cigarette out, he smelled alcohol on her breath. He asked her to step out of the vehicle and noticed that she swayed while standing still. She walked with a wide stance to the police cruiser and had to lean against it to maintain her balance. When he first asked the appellant if she had had anything to drink, she said that she’d had three but later said that she’d had five. He arrested her and made the breath demand. The defence argued that the trial judge erred in failing to consider other evidence that other vehicles had made similar turns and that the appellant did not require any assistance in leaving her vehicle and walking to the police cruiser, among other things. With respect to the second ground, the appellant advised the officer that she wanted to speak to a specific lawyer after being arrested. At the detachment, the appellant located the lawyer’s number and the officer dialed it. A voice message was left on the lawyer’s telephone but no return call was received. The officer advised the appellant she could call another lawyer, and initially she responded that she did not want to but wished to provide a breath sample. The officer was about to read her a waiver of her right when the appellant indicated that she wanted to call another lawyer. The officer called the number but received an after-hours message. He asked the appellant if she wanted to try another lawyer and she declined, stating that she was satisfied with leaving a message. She then provided her first breath sample. The defence argued at trial that the officer failed to advise the appellant of the availability of Legal Aid and failed to provide the Prosper warning, thereby breaching s. 10(b) of the Charter. HELD: The appeal was dismissed. The court found that the trial judge had not erred: 1) by finding there was no s. 8 breach. The judge had not made any findings of fact that were not supported by the evidence nor did he fail to consider relevant evidence when he found that the officer had sufficient evidence that objectively supported his belief that the appellant’s ability to drive was impaired; and 2) by finding that there had been no breach of s. 10(b). The appellant had failed to act diligently in pursuing her right to speak with a lawyer and provided a clear and unequivocal indication that she had abandoned her right to counsel when she said she was happy leaving a message.

5_2016skqb384.txt

J. 2002 SKQB 376 Q.B.G. A.D. 2002 No. 1328 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: FARM CREDIT CANADA and COLLEEN LYNN LUNDBACK and LINDEN REED DEFENDANTS J.A. Hesje for the applicant No one appearing for the respondents FIAT D.H. WRIGHT J. September 20, 2002 [1] The applicant applied for an order for judicial sale following the service of a 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. [2] I expressed my concern to Mr. Hesje during the course of his submissions as to the propriety of the applicant solicitor serving in such a dual function. He informed me that some members of our Court have allowed this to be done, others have declined. [3] 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? [4] 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. I understand that Grant Richards of Cuelenaere Kendall Katzman Watson & Hagen will serve in this role as opposed to Mr. Hesje.

The applicant applied for an order for judicial sale following the service of a 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. The court expressed its concern to Mr. Hesje during the course of his submissions as to the propriety of the applicant solicitor serving in such a dual function. He informed the court that some members of our Court have allowed this to be done, others have declined. In the court's 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? The matter is of sufficient importance that the court concluded it should reduce its thoughts to a 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. The court understood that Grant Richards of Cuelenaere Kendall Katzman Watson & Hagen will serve in this role as opposed to Mr. Hesje.

5_2002skqb376.txt

J. IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2012 SKPC 090 Date: May 28, 2012 File: SC#337 of 2011 Location: Saskatoon Between: Gerald Evin and Beverly Evin and Marvin Harder Gerald Evin and Beverly Evin On their own behalf Marvin Harder On his own behalf JUDGMENT D.C. SCOTT, Introduction [1] The plaintiffs Gerald Evin and Beverly Evin hired the defendant Marvin Harder to perform services in relation to renovations being done on their newly purchased home in Dalmeny. Before the work was completed, the Evins terminated their contract with Mr. Harder believing Mr. Harder’s workmanship was poor, that he had caused some damage to their home and created mess. The Evins hired another contractor to redo some of the work, repair the damage and finish the job. They claim their damages to be $5,975.95, but acknowledge they owe Mr. Harder for the removal of a bedroom wall. [2] Mr. Harder, general contractor, denies his workmanship was poor. He states he performed portion of the work, but was not allowed to finish the job or clean up. Further, his tools remained at the plaintiffs’ home for several months after he was terminated. He counterclaims for the cost of work he completed but for which he was not paid and compensation for the lost use of his tools, in the total amount of $6,292.54. [3] In March 2011, the plaintiffs engaged the services of the defendant to perform work for them. written estimate was provided by the defendant as follows: Patch and re-tape drywall cracks in all ceiling and walls, to ready the walls for painters Total material and labour $2,480.00 Replace two skylights with new high quality skylights, including all materials to seal and waterproof Total labour and materials, including skylights 3,840.00 Remove wall in bedroom to make one room Total labour 580.00 [4] The original estimate was agreed to by the plaintiffs; the defendant began work on or about March 24, 2011. After the work had begun, the plaintiff Beverly Evin asked Mr. Harder to perform additional work. In particular, she wanted holes in the backsplash area under the bay window in the kitchen patched after she had damaged it while removing the old tiles. [5] The plaintiffs identified number of deficiencies and provided photographs at trial illustrating many of their concerns. Generally, those concerns are as follows: 1. The drywall installed in the bedroom and living room was the incorrect width and therefore did not fit flush with the existing walls; 2. The defendant applied extra drywall mud (“mud”) to the crease between the new and existing wall in an attempt to make them appear flush, but the mud was too thick and cracked; 3. The drywall in the living room was installed so as to leave gap between the wall and the floor; 4. Bare electrical wiring in ceiling and wall was covered with drywall; 5. Mud applied in the kitchen to the backsplash and bay window was too thick and uneven; 6. Mud was splashed on oak woodwork, electrical outlets, countertop and sink; 7. The white carpet was stained with blood and mud, because it had not been properly covered; 8. Four burn marks on the kitchen countertop were apparently caused by the defendant’s trouble light. [6] The plaintiffs began raising their concerns with the defendant as early as his second day of work. The defendant acknowledged the mess and indicated he would clean it up, but the plaintiffs saw no change. He addressed their concerns regarding the uneven walls by explaining he would “feather” the mudding, in an attempt to even them out. [7] In the kitchen, Mr. Harder applied thick, uneven coat of mud to the backsplash floor and walls, splashing mud on the oak window trim, sink and electrical outlets. The plaintiffs believed the mud was not applied properly and would take too long to dry. At the same time, the plaintiffs discovered number of burn marks on the countertop. The plaintiffs lost confidence in the defendant and he was terminated at the end of March 2011. The plaintiffs did not give the defendant the opportunity to repair the damage, clean up any mess or fix the deficiencies. [8] According to the plaintiffs, other than removal of the bedroom wall, most of the work was begun but not completed. After the working relationship between the parties broke down, the plaintiffs reimbursed the defendant for the cost of the skylights, which were delivered to them. [9] The plaintiffs alleged that beer cans found behind shelving after Mr. Harder was terminated belonged to Mr. Harder and implied this was the cause for the quality of his work. The defendant denied the beer belonged to him or that he consumed alcohol while working. The Court finds the plaintiffs have failed to substantiate this allegation on balance of probabilities. [10] George Ginther is the owner of Country-West Builders, which did the repairs and completed the work for the plaintiffs. He has worked in all aspects of contracting and subcontracting in the building trades for 25 years. It was Mr. Ginther’s opinion that most of the work performed by the defendant had to be redone. In particular, the drywall and framing needed to be removed and replaced because it was protruding and not flush with the existing walls. The closet door was replaced as it was the incorrect size. Repairs were done to the bedroom ceiling and walls and the electrical wiring. In the kitchen, the drywall between the upper and lower cabinets needed to be replaced, because the mud was applied too thickly and would have been too costly to sand down. With respect to the backsplash, the drywall needed to be removed and replaced with aquaboard and new backsplash. The kitchen countertop was replaced because of several burn marks on the laminate. [11] Geoffrey McBain is cabinet maker who operates Sask Valley Cabinets. He observed the plaintiffs’ house before the defendant began his work and was in the house several times in the spring of 2011. He confirmed that the newly installed drywall in the living room was not flush with existing walls, apparently because the incorrect width was used. He observed the cracked mud where the defendant had attempted to even out the new and existing walls. He observed the work done by the defendant in the kitchen and the burns to the countertop. [12] Elwood Benson has been an interior house painter for 30 years and had been hired to paint the plaintiffs’ home after the defendant had prepared the walls and ceilings for paint. It was Mr. Benson’s opinion that he would have been unable to paint the walls and ceiling due to their condition after the defendant was terminated. The drywall was installed on crooked frame, the walls and ceilings were not sufficiently sanded. He acknowledged it appeared as if the work was unfinished. [13] The defendant Marvin Harder has worked as carpenter and general contractor for 40 years. He performs small jobs, including window installations, basements, additions and various home renovations. He had contracted with the plaintiffs to patch holes in the walls, remove the wall in the bedroom, and repair cracks in walls and ceilings. [14] Mr. Harder does not deny he used inch drywall, even though the existing drywall was 3/8 inches thick. Although he thought he could fix the unevenness with mud, at trial he acknowledged he ought to have used the same width as that of the existing drywall. [15] With respect to his work in the kitchen, it is Mr. Harder’s practice to apply thick coat of mud, followed by two or three thin coats and sanding. In retrospect, he acknowledged it would have been better to use drywall rather than many coats of mud even though it would have been more costly. He said that was “his mistake”. [16] The defendant denied covering the electrical wiring with drywall and then cutting out part of the wall to expose wiring previously hidden. When shown photograph 18 of new drywall with wires protruding from where hole had been cut, he did not seem to recognize his work. However, he acknowledged that electrical repair was required. [17] Regarding the matter of cleanliness, the defendant testified he covered the living room carpet and all floors with plastic, although he was unable to explain photos shown to him where part of the floor remained uncovered. He testified he did not typically cover electrical switch units, but rather it is his practice to clean them after the job is completed. He planned to do the same with respect to the mud on the wood trim. He denied having caused blood stains on the carpet. [18] The defendant acknowledged his trouble light made one burn mark on the kitchen countertop but did not admit to the others, even though all of the marks appear the same. [19] The defendant testified he was terminated before he had the opportunity to complete the job and that only 23 percent of the work had been finished, for which he remains unpaid. He offered to fix the problems but was not given an opportunity to do so. The defendant’s tools remained at the plaintiffs’ property for seven months until retrieved on the direction of the case management conference judge in this action. Issues to be decided 1. Did the defendant’s workmanship amount to breach of contract or negligence? 2. To what damages, if any, are the plaintiffs entitled? 3. Is the defendant entitled to payment for the work performed for the plaintiffs? 4. Is the defendant entitled to damages for the loss of use of his tools? 1. Did the defendant’s workmanship amount to breach of contract or negligence? [20] There is an implied term of every contract for services, such as the one between the plaintiffs and the defendant, that the work performed will be of reasonable workmanlike quality (Maisonneuve v. Burley, 2001 SKQB 407 (CanLII), [2001] S.J. No. 520 (Sask. Q.B.)). In Maisonneuve at para. 26, Dawson J. quoted from Halsbury’s Laws of England, vol. 3, 3d ed. (London: Butterworths, 1953) as follows: contract to perform any work, in the absence of any stipulation in the manner to which it is to be carried out, implies condition that the work shall be done in good and workmanlike manner, and that the workman employed on the job must be possessed of the ordinary amount of skill possessed by those exercising the particular trade... [21] Further, the Court in Maisonneuve held that to succeed in negligence party must prove worker’s actions amount to breach of duty of care owed to them by the worker. The Court stated at para. 31: ...the tort of negligence revolves around three elements—duty, breach and loss and, as stated by the Saskatchewan Court of Appeal in SEDCO v. William Kelly Hldg. Ltd., [1994] W.W.R. 134 at p. 152, three questions are raised: .. Did duty of care arise; if so, what was the nature and scope of that duty; was the duty breached; and, if the duty was breached, was there loss, that is compensable loss of the nature recoverable under the form of the tort at issue? [22] Therefore, implied in the contract for services is the term that the defendant’s work would be done in proper and workmanlike manner and failure to perform work to that standard would constitute breach. Alternatively, where service provider breaches duty of care owed to his customer, by performing work which falls below the standard of reasonable care, the service provider will be found to have been negligent. [23] In this case, there was contract between the Evins and Mr. Harder for the completion of certain renovations. Failure to perform services under that contract in proper and workmanlike manner would amount to breach of the contract. Further, the Court finds Mr. Harder owed duty of care to the Evins, in that there was sufficient relationship between Mr. Harder and the Evins to expect that Mr. Harder’s actions, if careless, would likely cause loss to the Evins (Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.)). [24] It is clear from the testimony of Mr. Ginther, Mr. McBain and Mr. Benson that the installation of drywall was unsatisfactory and below standard. Mr. Ginther testified that the drywall and framing needed to be removed because it was not flush with existing walls. Mr. Harder acknowledged he ought to have used the same width as that of the existing drywall. find that, based upon the testimony of the plaintiffs’ witnesses and Mr. Harder himself, the incorrect width of drywall had been used, the solution was not to apply additional mud, and this work needed to be redone. [25] accept that drywall was applied on ceiling and wall, covering bare electrical wires and posing potential safety hazard, as evidenced by the photographs and plaintiffs’ witnesses. According to Mr. Ginther, the proper approach was to install the electrical box first, before applying the drywall. [26] The extensive mud applied to the backsplash walls and floor needed to be removed and replaced with drywall. Mr. Ginther testified the mud applied by Mr. Harder was too thick, making it too costly to sand down. Mr. Harder acknowledged that he ought to have used drywall. [27] find the defendant’s workmanship in relation to the installation of the drywall, the electrical outlets and in the kitchen was of poor quality and fell below reasonable standard, such that it constituted breach of contract and was negligent. [28] According to the plaintiff Beverly Evin, the defendant’s trouble light appeared to have caused several burns marks on the kitchen countertop. Mr. Harder acknowledged that his trouble light caused only one of the marks. The testimony of the plaintiffs’ witnesses and the photographs indicate all of the burn marks look the same and have the same features. The Court is satisfied that they were all caused by the defendant’s light being placed on the unprotected countertop. Failure to take precautions to ensure the trouble light did not burn the countertop fell below the standard of care of contractor, constituting breach of contract and negligence. [29] Although Mr. Harder was hired to prepare the walls and ceilings for the painter, Mr. Benson testified that he would have been unable to paint the walls and ceilings in the condition in which they were left. However, it is acknowledged by the plaintiffs that they terminated their contract with Mr. Harder before the job was completed. Mr. Harder cannot be held responsible for unfinished work. [30] Photographs tendered at trial illustrate mud splashed on the woodwork, electrical outlets, sink and carpet as well as what appear to be blood stains on the carpet. The Court accepts Mr. Harder splashed the mud, as he was the only individual working with that product at the time. However, Mr. Harder denies having spilled blood on the carpet. The plaintiffs have failed to establish on balance of probabilities that the blood on the carpet was caused by Mr. Harder. The Court also accepts the defendant’s assertion that he would have cleaned the mess after the work was done, at his own expense, as is his usual practice. 2. To what damages are the plaintiffs entitled? [31] The plaintiffs claim recovery of their cost to hire Country-West Builders to repair the deficiencies in the defendant’s work, in the amount of $4,116.00 including GST, according to the invoice dated May 18, 2011. The work involved removal and replacement of drywall between the kitchen cabinets; removal and re-framing the front closet and installation of drywall; repairing the bedroom ceiling and walls, and repairing electrical wiring; removal and replacement of the kitchen countertops; and installation of the countertop over the bay window floor. [32] Because of the number of burn marks on the countertop, it was Mr. Ginther’s opinion that it needed to be replaced, as it would not have been possible to match the existing laminate with new, if he tried to patch it. [33] Kevin Penner has worked as carpentry contractor for approximately four years with Pro-Built Contracting in Warman and has worked with the defendant on more than one dozen jobs. Mr. Penner provided quote to the defendant to repair the plaintiffs’ countertop in the amount of $375.00, based upon photograph he was shown of the burned countertop. He determined the same colour as the original arborite was available, but could not say whether he could reasonably match the arborite type and colour given that the kitchen dated back to 1987. He acknowledged that if it could not be matched, the countertop would have to be replaced and if larger area needed to be fixed, his price would increase. [34] The Court is satisfied that the countertop could not have been adequately repaired by patching and accepts that as result of the several burn marks, the countertop needed to be replaced. [35] Mr. Ginther testified the original arborite or laminate was replaced with laminate of the same grade or quality. Nonetheless, the plaintiffs received new countertop to replace one which, according to them, had been in the home for approximately 25 years. The doctrine of betterment precludes the plaintiffs from being fully compensated for new countertop of greater value than the one which would have depreciated over time as the result of wear and tear. No evidence was presented with respect to the difference in value between the two, the obligation for which was on the defendant. In the circumstances, the Court will assess nominal discount of 10% of the cost of the new countertop to reflect the depreciation. Approximately $2,800.00 plus 5% GST or $2,940.00 of the Country-West invoice is attributable to the countertop replacement. Accordingly, that portion of the plaintiffs’ claim will be reduced by 10% or $294.00. [36] find the plaintiffs have established their claim with respect to the repair work done by Country-West Builders in the amount of $3,822.00 ($4,116.00 $294.00). [37] Mr. Harder complains that the plaintiffs’ claim exceeds the amount they would have paid for the original job, but that is to be expected given the repair involved the removal and dismantling of some of his work before it could be redone, along with the replacement of the damaged countertop. The plaintiffs make no claim for, nor would they be entitled to, the cost to complete the job. [38] The plaintiffs claim the cost of Sanity Saver Home Management for cleaning on April 28 and 29, 2011 in the amount of $405.00. This cleaning occurred one month after Mr. Harder was discharged. The invoice is not detailed and it is unclear what was done or whether the cleaning invoice can be attributed only to the mess left by Mr. Harder. The onus is on the plaintiffs to establish with sufficient specificity, their damages. The Court accepts some cleaning would have been required and will allow $100.00. [39] The plaintiffs also claim the cost of Rainbow International for cleaning, including carpet cleaning, on July 11, 2011. The plaintiffs’ cost was the amount of Rainbow’s invoice of $345.56 plus coupon for $89.00. This cleaning took place after the work performed by Country-West Builders was completed in May 2011. The Court is not satisfied that the cleaning by Rainbow is in relation to the mess left only by the defendant. Further, it is likely the plaintiffs would have had the carpets cleaned following the renovation regardless of their condition. therefore decline this portion of the plaintiffs’ claim. [40] The plaintiffs claim the cost of 22 hours of their own time with respect to cleaning, Mr. Evin at rate of $40.00 per hour and Mrs. Evin’s time at an hourly rate of $22.00. There is no evidence that the plaintiffs sustained loss of income as the result of their cleaning efforts. In fact, Mrs. Evin testified she was paid by her employer for the time she took from work to clean. The Court declines this portion of the plaintiffs’ claim. Punitive damages [41] The plaintiffs asserted claim for punitive damages in an unspecified amount. The basis of their claim for punitive damages is that they hired the defendant to complete the work in workmanlike and timely manner. Because of the delay involved in hiring new contractor and re-doing some of the defendant’s work, there was delay in selling and consequently they were carrying two mortgages for time. [42] According to the Saskatchewan Court of Appeal in Lynch v. Hashemian, [2006] S.J. No. 712 at para. 18: The objective of punitive damages is to punish the defendant rather than compensate plaintiff, whose just compensation will already have been assessed. They are confined to exceptional cases where the defendant’s conduct was so malicious, oppressive and high-handed that it offends the court’s sense of decency. [43] In this case, while the defendant’s conduct constituted breach of the contract and negligence, there is nothing to suggest it was malicious, oppressive or high-handed, such that punitive damages are rationally required to punish or deter (Whiten v. Pilot Insurance Co., 2002 SCC 18 (CanLII), [2002] S.C.R. 595 (S.C.C.) paras. 100-101). decline to award punitive damages in this case. 3. Defendant’s counterclaim for unpaid work [44] The defendant claims that he performed 23 percent of the work he was contracted to do, because he was not allowed to complete it by the plaintiffs. He testified that in addition to removing the wall dividing the bedrooms, he did the following: 1. Removed damaged drywall; 2. Began patching cracks on the ceilings; 3. Installed drywall in the bedroom and did some mudding; 4. Filled holes in the walls in few rooms; 5. Made cut outs for the plumbers; 6. Applied coat of mud in the kitchen after the plaintiffs removed the ceramic tile; 7. Patched holes in various areas of the house. [45] He makes claim for the cost of that work which he argues is 23 percent of the estimated cost of $2,480.00 or $570.40, in addition to the cost for removing the bedroom wall in the amount of $580.00. Much of this work, such as the installation of drywall and application of mudding in the kitchen was of no value to the plaintiffs as the work had to be redone or repaired. With regard to the remainder of this work, the defendant has failed to prove on balance of probabilities that the work was done and was satisfactory. However, the plaintiffs acknowledged that the defendant ought to be paid for removal of the wall dividing the bedrooms in the amount of $580.00, according to his estimate. The Court allows this portion of the defendant’s counterclaim. 4. Defendant’s counterclaim for lost use of tools [46] portion of Mr. Harder’s counterclaim is with respect to the tools which remained at the plaintiffs’ property after Mr. Harder’s contract was terminated by the plaintiffs. The case management conference judge directed that on October 20, 2011, the plaintiffs were to leave the tools in particular location for retrieval by the defendant. That was done. [47] The defendant’s counterclaim also deals with his alleged cost to rent tools between April 2011 and October 2011 when he did not have access to his own, at rental cost of $4,844.54. He went so far as to file quote from the Rent-It Store Tool Supply reflecting the amount he counterclaimed. At trial, Mr. Harder testified that in fact he had not rented replacement tools at any time. Rather, he borrowed tools from his son and co-worker in exchange for labour; the cost of that labour was $1,800.00 according to Mr. Harder. [48] The Court is troubled by Mr. Harder’s claim that he rented tools in the amount of $4,844.54 when that was not the case. Further, no documentation or testimony was presented substantiating the swap of labour for tools or the value of that labour. The Court declines to allow this portion of the defendant’s counterclaim. Conclusion [49] I find the plaintiffs Gerald Evin and Beverly Evin are entitled to judgment against the defendant for damages in the amount of $3,822.00 for the necessary repairs and $100.00 for cleaning. [50] I find the defendant Marvin Harder is entitled to judgment against the plaintiffs in the amount of $580.00 for Mr. Harder’s unpaid work. [51] In the circumstances, the counterclaim of the defendant is set off against the claim of the plaintiffs. The plaintiffs are entitled to judgment against the defendant in the amount of $3,342.00. [52] The plaintiffs claim their costs incidental to the Court action, including the cost of issuing the claim, service, postage, photographs, witness fees, mileage and parking to attend Court. Many of these costs are not typically awarded in Small Claims Court. Because the plaintiffs were substantially successful in their claim, the Court will allow the cost of issuing their claim in the amount of $41.00, and their reasonable cost for service in the amount of $50.00. D.C. Scott,

The plaintiffs hired the defendant to perform renovations to their home. The plaintiffs terminated the contract believing the defendant's workmanship was poor and that he caused some damage to their home and created a mess. The plaintiffs sued the defendant alleging damages. The defendant counterclaimed the cost of the work completed but for which he was not paid and compensation for the lost use of his tools. HELD: The Court granted judgment for damages in the amount of $3,822 for necessary repairs and $100 for cleaning expenses and granted the counter-claim in the amount of $580 for unpaid work performed by the defendant and then applied setoff. The Court allowed the cost of issuing the claim and for reasonable cost of service.

c_2012skpc90.txt

J. 2003 SKQB 532 Q.B.G. A.D. 2003 No. 1974 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: DANKA CANADA INC. PLAINTIFF (APPLICANT) and GARRY HUNTINGTON, BRENNAN EDUCATIONAL SUPPLY LTD., ROBERT BRENNAN and RANDY BRUCE, DERRICK CHAPMAN, ALLAN CURRIE, JEFF DOWNING, NESTOR DUTCHAK, CORY FETTER, RITCHIE GIFFORD, RICHARD GORELITZA, BRUCE HOWLETT, JASON IVANOCHKO, RAY KERR, KEVIN KULCSAR, TRINA KREISER, CLIFFORD KOHUCH LANCE LANG, GILBERT LAVERTU, ANTHONY LAZAROWICH, DAVID LOBB, DAVE MARTIN, DAN NELSON, BRIAN PEDDE, GEORGE PETRESCUE, APRIL QUESSY, CLETE REKVE, KEN ROBERTS, RICHARD SCHRAMM, KENNETH SPEED, BOGDAN SZOTT, JODY ULRICH, and JODY WILLIS DEFENDANTS (RESPONDENTS) B.J. Scherman, Q.C. for the applicant plaintiff D.C. Hodson for the respondent defendants JUDGMENT FOLEY J. December 12, 2003 [1] The applicant Danka Canada Inc. (Danka) seeks interlocutory injunctive relief framed in argument as follows: i) An interlocutory injunction until trial of this action restraining the Defendants, Ritchie Gifford, Clifford Kohuch, Kenneth Speed and Allan Currie from breaching the terms of their respective restrictive covenants in favour of Danka by taking employment with Brennan Educational Supply Ltd. in any position that involves the sales or service of photocopiers, printers, facsimile machines or related multi-function machines; ii) An interlocutory injunction restraining the Defendant Employees from competing, directly or indirectly, with Danka Canada Inc. until after their respective contracts of employment with Danka Canada Inc. have been terminated by the giving and expiry of reasonable period of notice to quit; iii) An interlocutory injunction until trial of this action restraining the Defendant Employees or any individual who were employees of Danka Canada Inc. and who are hired by Brennan Office Plus or Brennan Educational Supply Ltd. after the date of this Court’s order from soliciting, directly or indirectly, the customers of Danka Canada Inc. and from performing any service work to equipment that was sold or leased by Danka Canada Inc.; iv) An interlocutory injunction until trial of this action restraining the Defendants, Garry Huntington, Robert Brennan and Brennan Educational Supply Ltd., from soliciting, directly or indirectly, the employees of Danka Canada Inc., from soliciting, directly or indirectly the customers of Danka Canada Inc. in respect of the sale or lease of photocopiers, printers, facsimile machines or related multi-function machines and from performing any service work for customers of Danka Canada Inc. in respect of any machines that were sold or leased to the user by Danka Canada Inc. [2] The relief so claimed has undergone modification from that asserted in the amended statement of claim as well as from that sought in the notice of motion. This is neither surprising nor unusual given the time constraints placed on applicants seeking such relief and the factual nature of the circumstances. The injunctive relief taken as a whole seeks to enforce certain restrictive covenants, restrain employees from competitive activity pending the expiration of reasonable notice periods and generally restrain all respondents from any direct or indirect dealings with customers of Danka or pertaining to equipment sold or leased to customers by Danka. [3] By a fiat of December 5, 2003, the application by Danka for interlocutory injunctive relief was dismissed with reasons to follow. These are those reasons. The Right to Relief [4] The wrongs which Danka says it will suffer at the hands of the respondents stem from the decision of Brennan Educational Supply Ltd. (Brennan) to expand its Saskatchewan business from one primarily dealing with educational supplies, office products and furniture to one involving the supply and service of business machines, thereby bringing it into direct competition with Danka’s Saskatchewan operation. Danka has been major participant in the Saskatchewan market for supply and service of business equipment since its acquisition of General Recorders Ltd. in 1995. It also retained Garry Huntington, principal of General Recorders, as director of its Saskatchewan operation. [5] Brennan is frank in its recognition that, as its expansion in 2000 and thereafter brings it into direct competition with Danka and, as many of its customers in its more limited business activities between 1968 and 2000 were concurrently Danka’s customers with respect to its sales, leasing and service of business machine, Brennan’s quest for market share may well detrimentally affect Danka’s business. [6] In furtherance of its expansion plan Brennan purchased operations in Yorkton and Saskatoon in 2003 and retained Garry Huntington as its CEO in September 2003 once his non-competition agreement with Danka had expired. In October Brennan placed advertisements in Saskatoon and Regina newspapers to recruit personnel to fill the ranks of its expanding operation. In result, some 30 Danka employees, primarily salesman and service technicians, took up employment with Brennan. Most gave two weeks notice to Danka by resigning in the period October 21 to November 7. At that time Danka’s total Saskatchewan work force in its six offices was 79 employees of whom 40 were in service and 21 were in sales. Danka’s some 2,600 Saskatchewan customers used over 5,000 pieces of processing equipment the vast majority of which were photocopiers. Its revenues for the year ending March 31, 2003 in Saskatchewan were about 15 million dollars of which almost million dollars was generated by the service department. [7] The entry by Brennan into the document processing market coupled with its hiring of Danka’s sales and service staff undoubtedly caused disruption and consternation for Danka as set out in its supporting affidavits. As Danka says, it may well be difficult for it to replace staff in the short term thus enabling Danka’s competitors, including Brennan, to attract Danka’s clientele. Danka is concerned that the departing employees take with them proprietary and confidential information which will then be used by them and Brennan to further erode Danka’s market share and solicit Danka’s clientele. Elements to be Established [8] Interlocutory injunctions are an extraordinary remedy and thus in this case it is incumbent on Danka to demonstrate: (1) That its right to relief from the wrongs committed or threatened by the respondent is clear. (2) The existence of strong prima facie case, in support of that right and strong possibility that it will succeed at trial. (3) Injunctive relief until trial is necessary to protect Danka against irreparable damage and loss, mere inconvenience not being enough. (4) That the balance of convenience favours Danka in that the nature of the injury which the respondents on the one hand would suffer if the injunctions are granted if they should turn out to be right and that of Danka, on the other hand, might sustain if the injunctions were refused and it should ultimately turn out to be right. The burden of proof that the inconvenience which Danka will suffer by the refusal of the injunction is greater that which the defendants will suffer lies on Danka. The Evidential Standard [9] The injunctions are requested on quia timet basis and to enforce what the applicant says are restrictive covenants, obligations of confidentiality and fiduciary duty binding on the respondents. Relief quia timet requires the applicant to demonstrate strong prima facie case of imminent danger of substantial damage. [10] In Bioriginal Food Science Corp. v. Perrault, [1994] S.J. No. 592, at para. 12, MacLean J. concluded that the grant of quia timet injunction warranted the imposition of strong prima facie case standard. In like vein, MacDonald J. in Gebhard v. Big Arm (Rural Municipality No. 251), [1975] S.J. No. 174 (Q.B.), at para. 10, referenced Snell’s Principles of Equity, 26th ed. (London: Sweet Maxwell Limited, 1966), at 700, that in an application “quia timet”: Although the plaintiff must establish his right, he may be entitled to an injunction even though an infringement has not taken place but is merely feared or threatened; for “preventing justice excelleth punishing justice”. This class of action, known as quia timet, has long been established, but the plaintiff must establish strong case. He must prove that there is an imminent danger of very substantial damage, e.g., by showing that the threatened act “is attended with extreme Probability of irreparable Injury to the Property of the Plaintiffs, including also Danger to their existence”. See also Graham Construction Ltd. v. Zaba, [1968] S.J. No. 117 (Q.B.). [11] Injunctions involving restrictive covenants in employment contracts also warrant the use of the strong prima facie case standard rather than that of merely serious issue to be tried. See: Vision Security Investigations Inc. v. Lipoth (1995), 1995 CanLII 6174 (SK QB), 135 Sask. R. 226 (Q.B.). The Wrongful Acts [12] The wrongful acts from which Danka says it has right to relief, like the specifics of the injunctions requested, have undergone changes from the initial claim of November 12, 2003 through its amendment of November 20, 2003 to those raised in brief in the notice of motion and now detailed in both the written and oral submissions. The unlawful acts and wrongs alleged for which the injunctions are requested may be grouped as follows: (i) As to all former employee respondents now hired by Brennan: (a) their failure to provide reasonable notice of termination; (b) their failure to refrain from competition and customer solicitation; (c) their failure to compete by fair means. (ii) As to Huntington, Szott, Kerr and Willis, their breach of fiduciary duty by recruiting Danka’s employees and then soliciting Danka and customers through them. (iii) As to Huntington, Szott, Kerr, Willis, Brennan, Brennan Supply and Szott in their inducing Danka’s employees to be in breach of their obligations to Danka as detailed in (i) above. (iv) As to Huntington, Brennan, Brennan Supply, Szott, Kerr and Willis, conspiracy to induce breach of contract and wrongful interference with the trade and business of Danka. (i)(a) Former employee notice [13] It is trite law that it is an incident of the employment contract that each party to it is obliged to give the other reasonable notice of an intention to terminate the relationship. The parties are at liberty to agree in advance as to what would be reasonable and, in the absence of such agreement, the nature of the business as well as past conduct contribute to the determination of what is reasonable in the circumstances. [14] It is alleged in the affidavit of Ms. Luca that Danka’s practice in the event of termination was two weeks per year of service for non-management positions and three weeks per year of service for management and supervisory employees over 50 years of age. This alleged policy is not reflected in the employee handbook. The employment agreements exhibited to her affidavit simply state: The employer or employee may terminate employee’s employment with or without cause upon written notice. [15] It is incumbent upon Danka to establish the factual base of the impugned conduct it says constitutes the unlawful interference with Danka’s existing legal rights. [16] The affidavit of Mr. Natale asserts that other than the notice by Clifford Kohuch, all former employees gave Danka at least two weeks notice. The materials do not indicate that either the president or anybody else on Danka’s behalf took objection to the notice periods given by the respondents, rather, as set out in many of the respondents’ affidavits, the notice given was truncated by Danka management’s request that the resigning employee leave the premises. Significant also is the fact that in Danka’s correspondence to respondent employees, Danka set out its view of their obligations of confidentiality but no reference was made to any deficiency in the notice. Mr. Kohuch, the one person alleged not having given two weeks notice states that he in fact tendered his resignation on November and on November 12 was asked to leave Danka’s premises. [17] Danka has failed to demonstrate a prima facie case or even a serious issue to be tried that it was in law entitled to more than two weeks notice or that the respondents were in breach of any right which accrued to Danka. In any event, it is evident that Danka accepted the resignations without protest or comment. The submission by Danka that despite its ejection of the employees from its premises they remained employees is neither borne out by the facts or the law. (b) Competition and solicitation [18] Danka’s case is detailed as follows: 33. As established in paragraph and Exhibit “E” to the Affidavit of Angela Luca, some 13 of the Employees, signed written agreements that provide specific confidentiality obligations and non-compete or non-solicitation provisions. Those provisions range from the two-year non-compete obligations of the Employee Agreements of Kohuch, Gifford, Speed and Currie to the Confidentiality/Non-Compete Agreements of the others. Paragraphs and 3, of the latter provides the Employees agree that: 2) During employment with DANKA, EMPLOYEE agrees not to, either directly or indirectly, of EMPLOYEE’s own account or as an agent, employee, shareholder or director of any corporation, or member of any firm, engage in any business activity in competition with DANKA. Such activity includes, but is not limited to the selling, leasing, renting, servicing, distributing or wholesaling of photocopy equipment, facsimile or similar communications equipment, or other automated office equipment products and related parts. 3) For period of six months following termination of Employee’s employment with Danka for any reason, Employee shall not directly or indirectly or through others, solicit, or attempt to solicit any of Danka’s clients or perspective clients for the purpose of marketing, selling, leasing, renting, servicing, distributing or wholesaling photocopy equipment, facsimile equipment or similar equipment and related parts .” to clients or perspective clients located in the territories or geographic areas for which the Employee was responsible in the 12 months preceding termination. [19] In response to this position Brennan states: 49. Danka Canada is seeking to prevent four employees (Gifford, Speed, Currie and Kohuch) from breaching two year non compete clause in their written employment agreements. In order to succeed with this claim, Danka Canada must establish that the employment contracts are valid and binding and that the two year non-compete covenant is enforceable. 50. The employee agreements respecting Gifford and Speed are not executed by Danka Canada and therefore are not enforceable. Furthermore, Speed and Currie crossed out the non-competition clause contained in their employee agreements. The only agreement that was signed by both Danka Canada and the employee was Kohuch’s. However Kohuch has deposed that when he signed the agreement, Danka Canada told him that the two year non competition clause “would not hold water”. Danka Canada has not contradicted this evidence. 65. Danka Canada seeks an injunction to prevent the Employees from soliciting Danka customers or providing service on equipment sold or leased by Danka Canada. As the basis for this claim, Danka Canada appears to rely upon “express and implied” terms of employment contracts with the Employees. Nine of the thirty employees signed agreements that contained six month non-solicitation clause. The remaining Employees did not have any express or implied obligation of non-solicitation owed to Danka Canada. 6. Although Danka Canada has made vague assertion that these Employees are subject to non-solicitation and/or non-competition covenants by means of having received an Employee Handbook from Danka Canada, it is submitted that this assertion is entirely without merit. 67. Danka Canada has adduced no evidence that any of the Employees (with the possible exception of Clifford Kohuch) have solicited Danka customers after having left the employ of Danka Canada. There is no evidence of breach or threatened breach. In fact, Brennan Supply has put in place Policy Memorandum that directs each of the Employees to “refrain from the solicitation of customers with whom he or she had material contact, directly or through other employees, while employed at Danka”. [20] With regard to restrictive covenants of employment, Dickson J. in Elsley v. J.G. Collins Insurance Agencies Ltd. (1978), 1978 CanLII (SCC), 83 D.L.R. (3d) (S.C.C.), stated at p. 5: The principles to be applied in considering restrictive covenants of employment are well-established. They are found in the cases above-mentioned and in such familiar authorities as the Nordenfelt case, Nordenfelt v. Maxim Nordenfelt Guns Ammunition Co., Ltd., [1894] A.C. 535; Mason v. Provident Clothing Supply Co., Ltd., [1913] A.C. 724, and Attwood v. Lamont, [1920] K.B. 571. Of more recent vintage: Scorer v. Seymour-John, [1966] All E.R. 347, and Gledhow Autoparts Ltd. v. Delaney, [1965] W.L.R. 1366. covenant in restraint of trade is enforceable only if it is reasonable between the parties and with reference to the public interest. As in many of the cases which come before the Courts, competing demands must be weighed. There is an important public interest in discouraging restraints on trade, and maintaining free and open competition unencumbered by the fetters of restrictive covenants. On the other hand, the Courts have been disinclined to restrict the right to contract, particularly when that right has been exercised by knowledgeable persons of equal bargaining power. In assessing the opposing interests the word one finds repeated throughout the cases is the word “reasonable”. The test of reasonableness can be applied, however, only in the peculiar circumstances of the particular case. Circumstances are of infinite variety. Other cases may help in enunciating broad general principles but are otherwise of little assistance. (See Graham Construction Ltd. v. Zaba, [1968] S.J. No. 117 (Q.B.) and Vision Security Investigations Inc. v. Lipoth, supra.) [21] According to Angela Luca it has been the policy of Danka since 1997 to require all of its employees as condition of their employment to sign confidentiality agreement and non-competition agreement. Attached to her affidavit are set of documents which consist of the following types: (1) Documents entitled “Employee Agreement”, the body of which provides: 3(a) Employee expressly agrees that he/she shall not, during the period of this Contract and for period of two (2) years immediately following the termination of his/her employment with Employer, for whatever reason, either directly or indirectly, within the territory previously assigned (as of the date of termination of Employee’s employment hereunder), enter into or engage generally in competition with Employer in the business of sale, service, maintenance of office equipment or parts, either as an individual or as partner or joint venturer, or as an employee or agent or consultant for any persons, firm or entity, or as an officer, director or shareholder (except as passive shareholder of publicly-traded corporation) or otherwise. (b) Employee expressly recognizes and acknowledges that facts concerning the products, services, methods of doing business, pricing methods, marketing methods, employee policies, sources of supply and terms thereof, and service and customer lists of Employer and its affiliates or subsidiaries are valuable, special and unique assets of Employer, and are therefore confidential information and trade secrets. At the termination of Employee’s employment, Employee shall deliver to the company all tools, memoranda, notes, records, drawings, manuals, or other documents, and all copies thereof, concerning trade secret materials or confidential information that are in the possession of Employee, whether made or compiled by Employee or furnished to Employee by Employer, including but not limited to, Employer’s policy and procedure manual. Thus, Employee expressly covenants and agrees that he will not during the term of this Contract or anytime after termination hereof disclose any such information or part thereof to any person, or entity for any reason or purpose whatsoever. (2) “confidentiality/business trade secrets agreement” which imposes an obligation to not divulge or make use of confidential or proprietary information for period of one year following termination of employment and non-solicitation provision providing: 3) NONSOLICITATION OF CLIENTS: EMPLOYEE agrees that for six months following termination of employment with DANKA for any reason, EMPLOYEE shall not directly, or indirectly, contact, solicit or attempt to contact or solicit any of DANKA’s clients or prospective clients for the purpose of marketing, selling, leasing, renting, servicing, distributing or wholesaling photocopy equipment, facsimile equipment or similar equipment and related parts. This restriction applies only to DANKA’s clients or prospective clients located in the territories or geographic areas for which the EMPLOYEE was responsible during the 12 months prior to the termination of the EMPLOYEE’s employment with DANKA. This restriction also applies only to those clients and prospective clients with whom the EMPLOYEE had Material Contact on behalf of DANKA within the 12 months prior to the termination of the EMPLOYEE’s employment with DANKA. Material Contact means: (i) direct personal contact in furtherance of DANKA’s business with client or prospective client or (ii) direct or indirect responsibility for such direct personal contact by other employees or agents on behalf of DANKA. [22] Leaving to one side the activities of Danka employees Kohuch and Lazarowich with respect to bids to the Humboldt and Northern Lakes School Divisions, the affidavit materials filed by Danka provide no evidence of competition or solicitation nor any imminent danger or threat of such by one or more of the respondent employees so as to support the quia timet rationale for injunctive relief. Indeed, the evidence is to the contrary in that Danka put at least some of its former employees on notice of what its expectations were with respect to confidentiality and competition, stating in its form letter of November 12, 2003: understand that you have resigned and will be leaving your employment with Danka Canada to join direct competitor. You should be aware that you have certain continuing obligations, including an obligation of confidentiality. Even though you have resigned your employment with Danka, the law is clear that your obligation of confidentiality continues. Danka’s confidential and proprietary information remains the property of Danka and you have continuing obligation to respect this confidentiality. Your legal duty is to respect and preserve these confidences and ensure that none of this confidential information is used by you in your new position nor made available to Danka’s competitors or any other person or entity. As result of the position you held with Danka, you also have additional fiduciary obligations that continue after your resignation. As with the obligation of confidentiality, the fiduciary obligation operates to require that you not use confidential or proprietary information that you gained as result of your employment with Danka. However, your fiduciary obligation is broader. If you were in fiduciary position with Danka, you are not entitled to pursue business opportunities that were part of your responsibility while at Danka. Please be warned that Danka will monitor all developments in the market place to ensure that your fiduciary or confidentiality duties are being honored to the utmost degree. Danka will immediately institute legal proceedings to protect its property and interests, including the use of confidential information, if it believes you are in violation of these duties. [23] Brennan, whether or not it agreed with the legal foundation for those expectations, then instructed its employees by memorandum of November 21, 2003 to comply with Danka’s requests and guidelines for the duration of any of their respective notice or restraint periods, and stated: At the outset it is important to reiterate (as all of you have been informed already) that Brennan Office Plus, as your new employer, prohibits you from bringing or making any use of any confidential information of your former employer, Danka. The types of information covered by this prohibition include customer lists, lists of suppliers, information as to particular customer needs, pricing information, cost structures, information as to maturing business opportunities and trade secrets. Danka alleges that three of our new employees (Bogdan Szott, Ray Kerr and Jody Willis) are “fiduciaries”. There are 13 employees who are alleged by Danka to be subject to specific non-solicitation agreements of one form or another (Jody Ulrich, Trina Kreiser, Gilbert Lavertu, Richard Gorelitza, Lance Lang, Clete Rekve, Cory Fetter, David Lobb and Dave Martin, Kenneth Speed, Allan Currie, Ritchie Gifford and Clifford Kohuch). As to other of our ex-Danka employees, Danka attempts to rely on employee handbooks for agreed restrictions on their activities with Brennan Office Plus. All of this came to light with the filing of court materials by Danka. The contention respecting fiduciary duties does not appear to be soundly based; the existence of validly executed and enforceable agreements is highly doubtful; and those who received only handbook should clearly be free of any non-solicitation obligations. Despite this, it is in the best interests of all of us to avoid any basis on which Danka could even attempt to pursue claim. Accordingly, out of an abundance of caution, Brennan Office Plus as your employer is imposing the following restriction. The existence of this directive will not prevent Brennan Office Plus from advertising your availability to the market or otherwise making known that you have joined the Brennan Office Plus team. If, as result of such promotion, business is attracted from your former Danka customers, you will be free to accept such business. You will not, however, initiate any communication with these customers. [24] The affidavits of the respondent employees taken as whole lead to the conclusion there has been no activity which could constitute the breaches referred to by Danka in its memorandum. In the absence of the factual foundation to provide credence for Danka’s fear that wrongs will be done extraordinary relief by way of injunction will not be granted. See Aetna Financial Services Ltd. v. Feigelman, 1985 CanLII 55 (SCC), [1985] [25] Danka suggests that the Brennan memorandum is mere puffery or window dressing and that the confidentiality constraints and solicitation prohibitions which it says exist will be readily defeated by subterfuge on the part of Brennan and its employees. There is no evidence to support this proposition and decline the invitation to infer such bad faith on the part of Brennan and the employee/respondents in the face of their specific denials of solicitation. In the event that Danka’s fears are realized hereafter then, in any event, the sales and servicing so lost can readily be quantified. In short Danka will not suffer the irreparable damage which is precondition to the granting of injunctive relief. (c) Unfair means [26] The defendant Brennan appears to have been embarrassed by the conduct of the two aforementioned employees in attempting to ensure contracts for Brennan with the school divisions while they were still in the employ of Danka. It is likely this event constituted breach of duty owed Danka by the employees. Whether Brennan or its corporate officers have liability for the unacceptable conduct is matter which will be determined at trial and is one for which damages can reasonably be calculated if liability is established. It appears however at this point in time that this type of event was an anomaly and, on the materials filed, it does not appear there is threat or risk that it will be repeated or that like breaches will occur. This may well be an example of unfair means, but, if so, it was the only example and does not constitute grounds for precautionary injunctive relief. (ii) Breach of fiduciary duty by Huntington, Szott, Kerr and Willis. [27] Mr. Huntington was clearly in Danka’s senior management but was terminated from that employment and the restricted covenant binding him expired before he became involved with Brennan. Whether Mr. Huntington was or was not fiduciary during his Danka employment does not answer the question of whether he is currently fiduciary and if so what his obligations are and in what method or manner he is in breach of any such duty. [28] The vast majority of the respondents say that their response to the hiring advertisement was effected for their own personal reasons. Danka asserts that the affidavit of Jody Willis implicates Mr. Huntington. must disagree. Jody Willis merely states that she became aware of Mr. Huntington becoming associated with Brennan in October 2003 and, as she was unhappy with her employment at Danka, “I saw an opportunity for myself and initiated contact with Garry Huntington. Eventually, met with Garry Huntington and was offered position with Brennan Educational Supply Ltd.” [29] These meagre facts fall far short of establishing Mr. Huntington is in breach of any fiduciary duty even if one existed. There was no evidence at all that Messrs. Szott, Kerr, Willis induced employees or have solicited Danka’s clients through them nor that any of those respondents together with Brennan and Brennan Supply induced Danka’s employees to break any obligations they owed to Danka. [30] To grant injunctions against the respondents in the form requested by Danka, would be tantamount to granting final judgment against them all before trial and consequently for this reason as well an injunction is not an appropriate remedy. (iii) This is subsumed in (i) above. (iv) Huntington, Brennan, Brennan Supply, Szott, Kerr and Willis insofar as they are said to have conspired to induce breach of contract or wrongfully interfered with the trade and business of Danka. [31] These alleged wrongs are simply not substantiated in any way by the evidence. In conspiracy and wrongful interference there must be substrata of evidence to show that the parties committed overt acts from which the tort may be discerned. The best that could be said of the plaintiff’s case is that it is one of conjecture and inference without any foundation of facts from which inferences may be drawn. [32] For all the foregoing, the application for injunctive relief is denied with costs.

The plaintiff employer sought injunctive relief and sought to enforce certain restrictive covenants and to restrain employees from competitive activity pending the expiration of reasonable notice periods and generally restrain all respondents from any dealings with customers of the plaintiff or pertaining to equipment sold or leased to customers by the plaintiff. HELD: By fiat of December 5, 2003, the Court dismissed the application for injunctive relief with reasons to follow. These are those reasons. 1) The wrongs the plaintiff says it will suffer at the hands of the defendant employees result from the decision of the defendant to expand its business from one dealing with educational supplies, office products and furniture to one involving the supply and service of business machines. The new direction brings the defendants into direct competition with the plaintiff's business. 2) The defendants hired Garry Huntington once his non-competition agreement with the plaintiff expired. The defendants also placed ads in newspapers and hired some 30 employees of the plaintiff. The plaintiff was concerned that the departing employees would take with them confidential information and that it would have difficulty hiring replacements, which would affect its ability to service its clients. 3) The departing employees gave 2 weeks notice. The plaintiff failed to demonstrate that it was entitled to more than 2 weeks notice. 4) The affidavit materials filed by the plaintiff provided no evidence of competition or solicitation or imminent danger or threat of such by the defendants. The defendant instructed its employees by memorandum to comply with the plaintiff's requests and guidelines for the duration of their respective notice periods. 5) There was no evidence at all that the defendants induced employees or solicited the plaintiff's clients through them or induced the plaintiff's employees to break any obligations they owed the plaintiff.

3_2003skqb532.txt

J. THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2009 SKCA 53 Date: 20090416 Between: Docket: 1605 Her Majesty the Queen and Daniel Aube, Jason Pederson and Dale Kaye Respondents Coram: Cameron, Smith and Hunter JJ.A. Counsel: Douglas G. Curliss for the Crown Dwayne Z. Braun for the Respondents Appeal: From: Provincial Court Heard: April 16, 2009 Disposition: Appeal Allowed (Orally) Written Reasons: May 7, 2009 By: The Honourable Madam Justice Smith In Concurrence: The Honourable Mr. Justice Cameron The Honourable Madam Justice Hunter Smith J.A. [1] The three respondents pled guilty to three offences: trafficking in cocaine for the benefit of, or at the direction of, or in association with a criminal organization contrary to s. 467.12 of the Criminal Code; conspiring together and with others to traffick in cocaine contrary to s. 5(1) of the Controlled Drugs and Substances Act and s. 465(1)(c) of the Criminal Code; and trafficking in cocaine contrary to s. 5(1) of the Controlled Drugs and substances Act. [2] On the last two counts, each was sentenced to one year less a day to be served in the community on each count, to be served concurrently, plus a 10 year fire arms prohibition. On the first count, each was sentenced to serve one year, in the community, consecutive to the sentences for the other counts. They were also made subjects to DNA orders and there was an order of forfeiture of a vehicle belonging to a third party. [3] The Crown appealed these sentences on the grounds that the sentencing judge failed to give proper effect to the gravity of these offences, particularly in light of the volume of trafficking and lengthy period of time over which it had taken place, the highly dangerous nature of the substances sold, which included crack cocaine, the fact that they were working for a criminal organization and the fact that their motivation was financial gain. [4] The panel allowed the appeal from the bench, substituting more lengthy period of incarceration for the conditional sentences originally imposed, with more extensive reasons to follow. These are those reasons. [5] The three respondents all worked as street-level cocaine dealers, selling crack cocaine in gram, gram, and gram (8-ball) amounts for criminal gang based in Edmonton known as the “Crazy Dragons.” The Crazy Dragons expanded into Saskatoon in 2005 to set up business in the crack cocaine trade. The respondents were involved in this activity for at least months, from November 15, 2005 to August 2, 2006, when they were arrested. During the last 60 days of that period the police recorded on wiretap in excess of 600 drug deals made by the respondents. This would have involved minimum of 300 grams and maximum of 2.1 kilograms of cocaine for proceeds of between $36,000 and $180,000. During this period the respondents worked 12 hours day and rotated their shifts so that the “deal” phone and delivery car were being operated twenty four hours per day, seven days per week. [6] The respondents were trained in their techniques by the criminal organization. The noted high volume of sales was made possible by practices defined by the organization and established to ensure that they worked as an efficient team to ensure delivery of cocaine on 24 hour day basis while reducing the risk of discovery. They used code names to conceal their identities and code words to conceal their activities; when shipment of cocaine would arrive in Saskatoon from Edmonton, all would meet at “stash house” in Langham or rent hotel room in Saskatoon to cut up the cocaine into packages for resale, then stash the cocaine packages; the stashes of cocaine were located throughout the city, behind bushes in parks, in back alleys, in cemeteries, and in ditches on the outskirts of town in an effort to avoid detection by police and to reduce their liability should they be arrested; and they carried only small amounts of cocaine at any given time and were directed to secrete the baggies of cocaine in their mouths while in transit. In the event they were stopped by the police, they could simply swallow the baggies and avoid detection. [7] During the time of their involvement in this activity, none of the respondents was employed. Their only source of income was from selling crack cocaine. [8] The circumstances of these offences are very serious and would, in normal circumstances, call for penalty substantially above the bottom of the range of sentences imposed in relation to drug trafficking. say this in light of the length of time the respondents were involved in selling drugs and the high volume of drugs sold, the nature of the drugs sold, the sophistication of the enterprise, and the fact that their motivation was clearly profit. [9] Despite this history, the personal circumstances and conduct of each of these respondents, particularly during the in excess of two year period between his arrest and the sentencing for these offences, is impressive and significantly mitigating. All are relatively young. Both Daniel Aube and Jason Pederson had just turned 18 when they became involved with the Crazy Dragons and are now 21 years old. Dale Kaye, who is now 23 years old, was not yet 20 in the fall of 2005. Neither Mr. Kaye nor Mr. Pederson has prior criminal record. Mr. Aube’s record consisted of two convictions for failing to comply with the conditions of his release in relation to these charges: one for breach of curfew and the other for failing to carry his recognizance with him when outside his residence. All have very strong personal and community support and, after few stumbles, each has performed well under the strict conditions under which he was released, particularly in terms of establishing strong employment record. Each has explicit plans and strong prospects for the future. All expressed remorse and the sentencing judge was persuaded that each had made significant changes in his life and was by all appearances rehabilitated. [10] Dale Kaye grew up in foster home due to his mother’s drug dependency. He is of mixed race (an Aboriginal mother and black father) and has been diagnosed as suffering from fetal alcohol effects. As youth, he had used both marihuana and cocaine, and prior to the offending conduct, had never been gainfully employed. [11] He became involved with the Crazy Dragons in November, 2005. He came to Saskatoon and was homeless and had no means of support. He met gang member at party and was offered place to stay, friendship, food and bit of money if he would work for them. [12] Early in the release period Mr. Kaye violated his release conditions by being unaccounted for in the community, but subsequently was compliant and expressed regret for his criminal activity. He was consistently employed during his release period and at the time of sentencing had been working for construction company for three months. His employer spoke movingly on his behalf at the sentencing hearing and Mr. Kaye himself spoke of his joy in this job. [13] Daniel Aube came from broken home and due to family difficulties left home at the age of 17 without finishing high school. He got involved with the gang with childhood friend. When the charges in this matter were laid, Mr. Aube had left Saskatoon and returned to Edmonton. When he heard of the charges, he turned himself in. His friend, by contrast, fled, and remained at large, still working in the drug trade, for over year, when he was stabbed and killed. This incident has had significant impact on Mr. Aube. [14] Since his release Mr. Aube has been employed in several jobs. Most recently, he started working at restaurant as line cook and rapidly assumed additional responsibility, managing the restaurant in the evenings. His employer provided strong letter of support. He has girl friend who is law student at the University of Alberta. He had explicit plans to obtain his GED and then enter the Northern Alberta Institute of Technology to train as chef. At the sentencing hearing he expressed deep remorse and regret for his involvement and belief that he had changed during the release period. [15] Jason Pederson enjoys very strong family support. In younger years he was an honour student, excelled in sports and had won citizen award. But he seemed to go off the rails in high school, dropping out before completing grade 12. He also got involved with the gang with friend. [16] At the time of arrest he was also charged with obstruction for giving false name to the police. In the early days of his release he was charged with some violations of conditions of his release, including failing to keep the peace and failure to attend the court. Since that time, however, he has committed to completing his GED and to his employment with Home Depot, with whom he expects to have career. He has had girl friend for two years who is supportive of him, as is his family. He has sought counselling to deal with his remorse and shame in relation to his criminal conduct. [17] The sentencing judge was clearly moved by these circumstances. While we agree that they are mitigating, and would justify a sentence at the low end of the range, it is our view that the sentencing judge gave them undue weight in comparison to the principles of denunciation and general deterrence, which must play a significant role in offences of this nature. In the result, the one year sentence for the trafficking offence, to be served in the community, is in our view demonstrably unfit given the range of sentences established in other cases of trafficking offences. [18] As the Crown has pointed out, the gravity of these offences is demonstrated by the maximum sentences set out in the Criminal Code: life imprisonment for trafficking in cocaine and conspiring to traffick in cocaine and 14 years imprisonment, consecutive, for committing those offences for criminal organization. [19] This Court has repeatedly said that the range of sentencing for trafficking in cocaine is 18 months to four years, and that the personal circumstances of an accused, while not to be ignored, are secondary considerations to the issues of deterrence and denunciation. It is an error in principle to over-emphasize the personal circumstances of the offender to the exclusion of an examination of other sentencing factors. See. R. v. Patryluk, 2002 SKCA 33 (CanLII), and especially paragraphs 21-23. This decision, in particular, where the circumstances were much less serious, cannot be reconciled with the sentences imposed in the instant case. See also R. v. Goy (1992), 1992 CanLII 8299 (SK CA), 105 Sask. R. 131 (Sask. C.A.); R. v. Grewal, 2003 SKCA 56 (CanLII); R. v. Dubai, 2008 SKCA 49 (CanLII); and R. v. McCallum, 2007 SKCA 139 (CanLII). [20] Considerations of parity alone would have warranted sentence of years on the trafficking charge alone in the circumstances of this case. In our view, the sentence of one year was demonstrably unfit, in light of the seriousness of these offences, even after taking into account the mitigating personal circumstances of these offenders. [21] We are also of the view that the total sentence imposed in this case failed to give due weight to the aggravating factor that these offences were carried on in furtherance of criminal organization. Section 467.14 of the Criminal Code requires that the sentence imposed for this offence be consecutive to any other sentence imposed for the predicate offence. It is clear that if the sentence imposed for the predicate offence is reduced to take into account the mandatory consecutive penalty for the aggravating offence, the effect is to frustrate the will of parliament through the failure to recognize and impose the mandatory consecutive penalty required by law for the separate, distinct and serious nature of the aggravating offence. See R. v. Brewer (1999), 1999 CanLII 18938 (NL CA), 141 C.C.C. (3d) 290 (Nfld. C.A.) and R. v. St. Amand (1982), 1982 CanLII 3772 (ON CA), 67 C.C.C. (2d) 130 (Ont. C.A.). [22] Accordingly, the sentences imposed in these cases must be set aside. In each case, an appropriate sentence for each of the respondents, taking into account the seriousness of the offences, the personal circumstances of the respondents, and the aggravating nature of the offences pursuant to s. 467.12, would be 18 months, concurrent, for each of the last two counts, and one year consecutive for the criminal organization offence, for a total of 30 months imprisonment. [23] In this case, each of the respondents has already served five months of the conditional sentence imposed by the sentencing judge, for which they should be given credit. Accordingly, the total sentence in each case is 30 months, 5 months having already been served.

The three respondents pled guilty to three offences: trafficking in cocaine for the benefit of, or at the direction of, or in association with a criminal organization contrary to s. 467.12 of the Criminal Code; conspiring together and with others to traffic in cocaine contrary to s. 5(1) of the Controlled Drugs and Substances Act and s. 465(1)(c) of the Criminal Code; and trafficking in cocaine contrary to s. 5(1) of the Controlled Drugs and Substances Act. On the last two counts, each was sentenced to 1 year less a day to be served in the community on each count, to be served concurrently, plus a 10 year fire arms prohibition. On the first count, each was sentenced to serve 1 year, in the community, consecutive to the sentences for the other counts. They were also subjected to DNA orders and there was an order of forfeiture of a vehicle belonging to a third party. The Crown appealed these sentences on the grounds that the sentencing judge failed to give proper effect to the gravity of these offences. The Court weighed all the evidence and circumstances of the accused, and found the sentencing judge was clearly moved by the personal circumstances of the accused and while they are mitigating and would normally justify a sentence at the low end of the range, it was the Court's view that the sentencing judge gave them undue weight in comparison to the principles of denunciation and general deterrence, which must play a significant role in offences of this nature. The Court further stated the 1 year sentence for the trafficking offence, to be served in the community, was demonstrably unfit given the range of sentences established in other cases of trafficking offences, even after taking into account the mitigating personal circumstances of these offenders. The Court found the sentences must be set aside. The Court found that an appropriate sentence for each of the respondents, taking into account the seriousness of the offences, the personal circumstances of the respondents, and the aggravating nature of the offences pursuant to s. 467.12, would be 18 months, concurrent, for each of the last two counts, and 1 year consecutive for the criminal organization offence, for a total of 30 months imprisonment. HELD: The total sentence in each case is 30 months, 5 months having already been served.

c_2009skca53.txt

J. F.L.D. of A.D. 1995 341 J.C. S. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: SHEILA ROSE MIGHTON and PAUL JAMES FISCHER RESPONDENT D. M. EBERT for the petitioner G. G. WALEN for the respondent FIAT DICKSON J. DATE: DECEMBER 6, 1995 The applicant (mother) seeks child support forCassandra, born July 13, 1990. Both she and the child are completely dependent upon the public purse. She estimates child costs at $759.00 per month, $300.00 of which is half her rent of $600.00 per month. The respondent (father) filed financial statement in which he reports gross employment income of $1,213.00 per month and rental income of $410.00 per month for total of $1,623.00 per month. He reports expenses of $2,762.00 per month, which makes one wonder how he does it. He gives no details about the rental income he receives nor does he identify the expense he must incur to earn this income. am quite sure it isn't all clear profit. For the purpose of calculating fair division of available resources am going to regard his gross income as $1,400.00 per month. Obviously there isn't enough money to go around. The father must be permitted to retain enough of his income toprovide a subsistence living for himself. Identifying that amount is rather difficult task. The child support guidelines suggest an annual obligation of $1,907.50 ($159.00 per month) for payor at the father's level of income. Such payment will leave him with $1,010.00 per month after he has paid his income tax, Canada Pension Plan and Unemployment Insurance contributions. That is barely sufficient to maintain subsistence level but he will have to manage as best he can. Obviously, the public purse must continue to bear most of his support obligation. There will be an interim order that the father paychild support of $160.00 per month commencing November 15, 1995.

FIAT The applicant (mother) sought child support. She was on social assistance and the father's income including rental income was $1,623.00 per month. HELD: An order for interim support at $160.00 per month. There wasn't enough money to go around. The father must be permitted to retain enough of his income to provide a subsistence living for himself.

c_1995canlii5892.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2010 SKQB 33 Date: 2010 01 29 Docket: Q.B.J. No. of 2007 Judicial Centre: Battleford BETWEEN: HER MAJESTY THE QUEEN Counsel: K. R. Humphries for the Crown L. K. Johnstone-Clarke for the offender JUDGMENT ROTHERY J. January 29, 2010 I. INTRODUCTION [1] J.R.S. (“J.R.S.”) was convicted on September 17, 2008, of the following offences:1. That on or about the 17th day of December, 2004 at T[…] First Nation, in the Province of Saskatchewan he did commit an assault on L.L.A. contrary to section 266 of the Criminal Code. 2. That on or about the 20th day of February, 2005 at T[…] First Nation in the Province of Saskatchewan did break and enter a dwelling house to wit: House #[...] at T[…] First Nation and did commit therein the indictable offence of assault, contrary to section 348(1)(b) of the Criminal Code. 3. That on or about the 20th day of February, 2005 at T[…] First Nation in the Province of Saskatchewan did in committing an assault on L.L.A. cause bodily harm to her contrary to section 267(b) of the Criminal Code. [2] J.R.S. re-elected trial by Queen’s Bench Judge alone on June 23, 2008, and upon arraignment, plead guilty to the following related offences stemming from his breaches of no-contact conditions with L.L.A. and from his obstructing justice by dissuading L.L.A. from testifying against him: 1. That on or about the 20th day of February, 2005 at T[…] First Nation, in the Province of Saskatchewan did being at large on his undertaking given to an officer in charge and being bound to comply with condition of that undertaking directed by the said officer in charge fail without lawful excuse to comply with the condition to wit: abstain from communicating with L.L.A. contrary to section 145(5.1) of the Criminal Code. 2. That between the 1st day of March 2005 and the 7th day of June 2005 at Prince Albert, in the Province of Saskatchewan did while being bound by an Order made by his Honour, Provincial Court Judge K. Y. Young pursuant to section 515(12) of the Criminal Code on March 1, 2005 and being bound to comply with condition of the order, fail without lawful excuse to comply with that condition to wit: that J.S. abstain from communicating directly or indirectly with L.L.A. contrary to section 127(1) of the Criminal Code. 3. That between the 1st day of March A.D. 2005 and the 7th day of June 2005 at Prince Albert, in the Province of Saskatchewan did wilfully attempt to obstruct, or pervert the course of justice in judicial proceeding by dissuading or attempting to dissuade L.L.A. from giving evidence contrary to section 139(2) of the Criminal Code. 4. That between the 9th day of June A.D. 2005 and the 30th day of September 2005 at P[…] First Nation, in the Province of Saskatchewan did while being bound by an order made by his Honour K. Y. Young pursuant to section 515(12) of the Criminal Code on March 1, 2005 and being bound to comply with condition of the order, fail without lawful excuse to comply with that condition to wit: that J.S. abstain from communicating directly or indirectly with L.L.A., contrary to section 127(1) of the Criminal Code. 5. That between the 9th day of June 2005 and the 30th day of September 2005 at P[…] First Nation, in the Province of Saskatchewan did wilfully attempt to obstruct or pervert the course of justice in judicial proceeding by dissuading or attempting to dissuade L.L.A. from giving evidence contrary to section 139(2) of the Criminal Code. [3] Although J.R.S. was charged with possession of cannabis marihuana for the purposes of trafficking, he also plead guilty to the included offence of possession of cannabis marihuana, being count in the direct indictment dated January 4, 2007. [4] J.R.S. and L.L.A. (“L.L.A.”) had been in a common law relationship since she was fifteen years old. L.L.A. moved in with J.R.S. and his parents, J.S.[1] and B.S., and lived at house [...] on the T[…] First Nation. They had four children of the relationship, who were ages 15, 12, 10 and at the time of this trial in September, 2008. At trial, L.L.A. was age 31 and J.R.S. was age 36. L.L.A. was raised by G.T. at house [...]. L.L.A. has returned to her home reserve of P[…] First Nation at the end of 2006. [5] The offences took place in late 2004 and early 2005. The R.C.M.P. had to execute Feeney warrant to locate L.L.A. in the J.R.S.’s basement on February 26, 2008. J.R.S.’s actions after being arrested have led to the length of time to bring the three charges to trial in early September, 2008. The history of this matter has already been chronicled in my decision on J.R.S.’s application for judicial stay, cited at 2008 SKQB 288 (CanLII). [6] Because the offence of assault causing bodily harm is a serious personal injury offence as defined in Part XXIV of the Criminal Code, the Crown applied for an order that J.R.S. be declared a dangerous offender. The Attorney General has consented to the Crown’s application. The order was made for Dr. Roger Holden to conduct an assessment of J.R.S. and to file report with the court in accordance with s. 752.1 of the Criminal Code. That report was filed with the court in January, 2009. The dangerous offender hearing was delayed from March, 2009 until October, 2009, to allow defence to obtain an expert opinion and to prepare for the application. II. THE LEGAL FRAMEWORK [7] On the Crown’s application to have an offender designated dangerous offender under s. 753(1)(a)(i) and/or (ii) of the Criminal Code, as is the case here, it must prove beyond reasonable doubt that J.R.S. has been convicted of serious personal injury offence as defined and that J.R.S. constitutes threat to the life, safety or physical or mental well-being of other persons. The Crown must prove beyond reasonable doubt that J.R.S. exhibits pattern of repetitive behaviours showing failure to restrain his behaviour, and likelihood of causing death or injury to others. The Crown must prove that J.R.S. exhibits pattern of persistent aggressive behaviour showing substantial degree of indifference respecting the reasonably foreseeable consequences to others of his behaviour. In this case, the Crown submits it has proven both patterns of behaviour, although, by law it is only required to prove either the behaviour described in s. 753(1)(a)(i) or (ii) of the Criminal Code. [8] If the Crown has successfully proved the conditions outlined in s. 753(1)(a)(i) or (ii), the court is required to exercise its discretion to determine if the less restrictive sanction under the provisions of s. 753.1 of the Criminal Code may be imposed in the circumstances of this case. That is, the court must determine whether long-term offender designation could be imposed on J.R.S.. [9] The exercise of this discretion is founded on the principles outlined in R. v. Johnson, 2003 SCC 46 (CanLII), [2003] S.C.R. 357. At para. 26 29, the Supreme Court of Canada explained: However, this Court confirmed in L.(T.P.), supra, that the phrase "the court may find the offender to be dangerous offender" denotes discretion. In support of the Court's conclusion that the dangerous offender regime did not violate the prohibition on cruel and unusual punishment, La Forest J. stated, at p. 338, that "the court has the discretion not to designate the offender as dangerous or to impose an indeterminate sentence, even in circumstances where all of these criteria are met" (emphasis added). He reiterated the point at p. 361-62, stating that sentencing judge "does retain discretion whether or not to impose the designation or indeterminate sentence, or both" (emphasis added). Insofar as Moore and its progeny suggest that sentencing judges must declare an offender dangerous if the statutory criteria have been satisfied, they have been overruled by L. (T.P.). Having determined that the phrase "[t]he court may ... find the offender to be dangerous offender" denotes discretion, the next issue that falls to be considered is the legal principles and factors that sentencing judge must consider in the exercise of that discretion. For the reasons that follow, it is our conclusion that one factor that sentencing judge must consider is the possibility that the sanctions available pursuant to the long-term offender provisions would be sufficient to achieve the objectives that the dangerous offender provisions seek to advance. (2) The Exercise of Discretion Like all discretion exercised in the sentencing context, judge's discretion whether to declare an offender dangerous must be guided by the relevant principles of sentencing contained in ss. 718 to 718.2 of the Criminal Code. As mentioned above, these include the fundamental principle of proportionality contained in s. 718.1 and, most relevant to the central issue in the present appeal, the principle of restraint enunciated in paras. (d) and (e) of s. 718.2, which provide as follows: 718.2 court that imposes sentence shall also take into consideration the following principles: ... (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 joint effect of these principles is that sentencing judge must consider the possibility that less restrictive sanction would attain the same sentencing objectives that more restrictive sanction seeks to attain. In this case, the sentencing objective in question is public protection: see for example L.(T.P), supra, at p. 329, and Hatchwell v. The Queen, 1974 CanLII 203 (SCC), [1976] S.C.R. 39, in which Dickson J. (as he then was) wrote, at p. 43, that the dominant purpose of preventive detention is "to protect the public when the past conduct of the criminal demonstrates propensity for crimes of violence against the person, and there is real and present danger to life or limb". Absent such danger, there is no basis on which to sentence an offender otherwise than in accordance with the ordinary principles of sentencing. The principles of sentencing thus dictate that judge ought to impose an indeterminate sentence only in those instances in which there does not exist less restrictive means by which to protect the public adequately from the threat of harm, i.e., where definite sentence or long-term offender designation are insufficient. The essential question to be determined, then, is whether the sentencing sanctions available pursuant to the long-term offender provisions are sufficient to reduce this threat to an acceptable level, despite the fact that the statutory criteria in s. 753(1) have been met. [10] The exercise of discretion to address the option of long-term offender designation requires the court to consider the following, as stated in s. 753.1(1) of the Criminal Code: 753.1 (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be long-term offender if it is satisfied that (a) it would be appropriate to impose sentence of imprisonment of two years or more for the offence for which the offender has been convicted; (b) there is substantial risk that the offender will reoffend; and (c) there is reasonable possibility of eventual control of the risk in the community. [11] The Saskatchewan Court of Appeal has addressed the requisite factual underpinnings to assist the sentencing judge in exercising this discretion. In R. v. Lemaigre (2004), 2004 SKCA 125 (CanLII), 254 Sask. R. 255 (C.A), Cameron J.A. outlined at para. 50 52 the assessment that must be explored to assist the sentencing judge in determining whether the sentencing sanctions under s. 753.1 are sufficient to reduce the threat of public harm to an acceptable level: want to emphasize that what was called for was this: an assessment of the prospects of eventually reducing the risk to an acceptable level-not altogether eliminating it, but thus reducing it-should Mr. Lemaigre be sentenced to several years in prison, be exposed to the treatment programs offered in prison, and then be released into the community under supervision and on set of conditions aimed at reducing the risk to an acceptable level. In the circumstances of the case, it is this which was not adequately explored. [emphasis included] The circumstances of the case presented borderline situation. That being so, specific consideration should have been given to the rehabilitation programs offered in the Prince Albert penitentiary, especially those aimed at assisting offenders overcome problems such as those experienced by Mr. Lemaigre. What programs are available? How are they structured and administered, and how effective are they? Are there programs geared specifically to aboriginal offenders and, if so, what are they and how do they rate? How might the available programs benefit this man, should he be incarcerated for four or five or six years? In short, what were the prospects of eventually reducing the risk to an acceptable level by means, among others, of lengthy period of incarceration with its attendant deterrent and rehabilitative effects, especially on 52 year-old offender such as Mr. Lemaigre. Likewise, specific consideration should have been given to the rehabilitation programs or services offered in La Loche and area. Does the Meadow Lake Tribal Council have an Aboriginal Justice Committee and, if so, how active and effective is it? Such Committees often wield significant influence in controlling anti-social behaviours within their reach. The Meadow Lake Tribal Council apparently offers some programs, including Dene psychotherapy program. What are they, how do they function, and how do they rate? In addition, there appears to be an alcohol treatment facility in La Loche, one established relatively recently and apparently offering treatment in the Chipewyan language, Mr. Lemaigre's first language. How has this initiative been received in the community, and what, specifically, does this facility offer? In sum, what are the prospects of eventually controlling the risk and reducing it to an acceptable level in the community by means such as these? [12] In exercising the discretion under s. 753.1 of the Criminal Code to determine whether J.R.S. ought to be found long-term offender, the court must be satisfied that all three conditions of s. 753.1 can be met, as stated in ss. (a), (b), and (c). To that end, the Crown is not required to negate the “reasonable possibility of eventual control of the risk in the community” to burden of proof beyond reasonable doubt. As explained in R. v. Moosomin, 2008 SKCA 169 (CanLII), at para. 40: This Court adopts the reasoning of the other appellate courts in Canada. There can be no burden of proof on the Crown to negate the third criterion contained in s. 753.1 in the way in which the burden of proof is usually conceived. Section 753.1 places an obligation upon the sentencing judge to be satisfied on the basis of all the evidence that "there is reasonable possibility of eventual control" of the offender's risk "in the community." This is not question of satisfaction based on proof beyond reasonable doubt or any other standard of proof. Practical considerations will play role in motivating both the Crown and the defence in these kinds of proceedings. It will be advantageous to the Crown, as well as the defence, to provide whatever evidence will assist the court in determining whether the offender's risk in the community can be managed to an acceptable level. [13] Finally, if the Crown has failed to prove that J.R.S. is dangerous offender, and has failed to prove that J.R.S. even qualifies as long-term offender, the Court is required to impose sentence on J.R.S. for the convictions. [14] J.R.S.’s counsel submits that the court is required to address all options other than incarceration for J.R.S.. Counsel refers to s. 718.2(e) of the Criminal Code which states that “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 case of R. v. Gladue 1999 CanLII 679 (SCC), [1999], S.C.R. 688 at para. 93 summarized this sentencing principle as it addresses aboriginal offenders, and the principles articulated therein are often referred to as the “Gladue factors”. [15] J.R.S.’s counsel refers to R. v. Kakekagamick, (2006) 2006 CanLII 28549 (ON CA), 211 C.C.C. (3d) 289 (Ont. C.A.) as support for her submissions that, because J.R.S. is an aboriginal offender, the Gladue factors must be considered in determining his sentence. However, that case deals with the sentencing principles for conviction of aggravated assault, not an application under Part XXIV for dangerous offender designation. That case is of no assistance in addressing the Gladue factors to be considered in dangerous offender application. [16] Dawson J. addressed the Gladue factors in R. v. Stonechild, 2008 SKQB 98 (CanLII) and stated the following at para. 84: An application for finding of dangerous or long-term offender is part of the sentencing process and the principles enacted in s. 718.2 of the Criminal Code apply. As stated in the cases previously referred to, among these objectives, sentencing courts also consider the possibility that less restrictive sanction would attain the same sentencing objectives as more restrictive one notably, because an offender is aboriginal. On this specific characteristic of Mr. Stonechild, it is important to remember that the Supreme Court has decided generally, that the more serious and violent the crime, the more likely it will be, as practical matter, that the terms of imprisonment will be the same for similar offences and offenders, whether the offender is aboriginal or non-aboriginal. But, the cases clearly require the application of the Gladue principles to the dangerous offender applications. An offender has an opportunity to give evidence of systemic or background factors that will call for the special consideration under Gladue. [17] Dawson J. also stated at para. 17: In summary then, s. 718.2(e) applies to the process of designating an offender to be dangerous or long-term offender. However, because of the serious nature of the offences which bring about dangerous offender application, incarceration will generally be the result for both aboriginal and non-aboriginal offenders alike. An offender's aboriginal heritage may become important when considering the prospects of eventually controlling the risk and reducing it to an acceptable level in the community. There may be specific treatment available in the penitentiary and community which would be appropriate based on the offender's aboriginal heritage or connection. However, the test set out in Johnson, supra, is the governing test and s. 718.2(e) only applies to the extent that it coincides with the principles set out in that case. (Also see: R. v. Nome, 2009 SKQB 149 (CanLII) at para. 14). [18] In other words, Johnson, supra, has clarified that, while the Gladue factors as stated in s. 718.2(e) of the Criminal Code must be considered by the sentencing judge, they must be considered in the context of exercising the court’s discretion in considering long-term offender designation in the situation where the Crown has proved that the criteria for dangerous offender are present. If long-term offender status is considered, the Gladue factors are relevant in framing the appropriate sentence. Lemaigre, supra, outlines the considerations that must be addressed to assist the sentencing judge in framing an order that canvasses all available sanctions other than imprisonment, including rehabilitation services within the offender’s own community. [19] It follows that if J.R.S. is found to be neither dangerous offender nor long-term offender, Part XXIV of the Criminal Code does not apply. The sentencing principles articulated in Part XXIII govern the sentences to be imposed for J.R.S.’s convictions, including those set out in s. 718.2(e). III THE PREDICATE OFFENCE [20] J.R.S. was convicted of assault causing bodily harm to L.L.A., contrary to s. 267(b) of the Criminal Code. He broke into house #[…] on the T[…] First Nation on February 20, 2005, where L.L.A. had been staying, and assaulted her. In my oral decision of September 17, 2008, made these findings of fact: At some point while L.L.A. was sleeping on the couch, she was awakened by the accused. Both J.S.[1] and A. were in the house. The accused pulled her up from the couch. He punched her down the hallway. He pushed her head into the wall. He pulled her hair. J.S.[1] and A. tried to intervene, and finally they convinced the accused to stop punching her with his closed fists. L.L.A. wanted to get L.’s attention as he was in the bedroom, but L. did not make an appearance. L.L.A. testified that the accused, J.S.[1] and A. left G.T.’s house, and she fell back to sleep on the couch. Then, the accused returned and dragged her outside down the wooden steps, and along the side of G.T.’s house. He pulled her hair, kicked her on the chest, head and face with his hard boots. She protected her face as best she could. The accused choked her until she lost consciousness. She believed she would have been assaulted outside in the February night for about twenty minutes. She has no memory of what happened after that or how she got to house […]. She awakened next morning in the accused’s basement bedroom in house […]. She no longer had on her sweatshirt and jeans, but pair of shorts and t-shirt. She was in pain and could not move her head. The accused said “I’m sorry” and was very helpful for the first two days after that, including carrying her upstairs to the main floor to use the bathroom. For the first or days, it hurt to eat and drink, as her throat burned. She noticed clumps of blood on her head. [21] “serious personal injury offence” referred to in s. 753 of the Criminal Code is described in s. 752 to mean: (a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving (i) the use or attempted use of violence against another person, or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person, and for which the offender may be sentenced to imprisonment for ten years or more, ... [22] As stated in R. v. Goforth (2005), 2005 SKCA 12 (CanLII), 193 C.C.C. (3d) 354 (Sask. C.A.) (Leave to appeal to the Supreme Court of Canada refused December 22, 2005, court file no. 31161), at para. ... we are of the opinion paragraph 752(a) does not-necessarily or otherwise-invite qualitative assessment of the degree of violence or endangerment in the predicate offence. In our respectful opinion the defining character and selected phraseology of paragraph 752(a) suggest otherwise, as does consideration of the object of the term "serious personal injury offence." [23] Thus, while qualitative assessment of the degree of violence extracted by J.R.S. on L.L.A. is not required, the facts of this offence leave no doubt that the Crown has proved that the indictable offence under s. 267(b) involved the use of violence against L.L.A.. Furthermore, this offence attracts sentence of ten years. IV. THE CROWN’S PROOF OF J.R.S.’S PATTERN OF BEHAVIOUR [24] The Crown submits that it has proved beyond reasonable doubt that J.R.S. constitutes threat to the life, safety or physical or mental well-being of other persons. It submits that it has established pattern of behaviour described in both s. 753(a) (i) and (ii) of the Criminal Code. Section 753(1)(a) states: (1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be dangerous offender if it is satisfied (a) that the offence for which the offender has been convicted is serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing (i) pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms part, showing failure to restrain his or her behaviour and likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, (ii) pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms part, showing substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, [25] The Crown is only required to prove the pattern of behaviour as defined by s. 753(a)(i) or (ii), it does not have to prove both. The pattern does not depend upon the number of offences but on the repetitive nature of the offender’s behaviour. (See: R. v. Lewis (1984), 1984 CanLII 2027 (ON CA), 12 C.C.C. (3d) 353 (Ont. C.A.)) [26] As stated by the Alberta Court of Appeal in R. v. N.(L.), 1999 ABCA 206 (CanLII), [1999] 11 W.W.R. 649 at para. 111, the repetitive behaviour can be established on two different bases: Third, repetitive behaviour under s. 753(a)(i) and persistent aggressive behaviour under s. 753(a)(ii) can be established on two different bases. [Persistent in this context has been equated with repetitive: Yanoshewski, supra.] The first is where there are similarities in terms of the kind of offences; the second where the offences themselves are not similar in kind, but in result, in terms of the degree of violence or aggression inflicted on the victims. Either will do. Thus, the mere fact that an offender commits variety of crimes does not mean that no pattern exists. There is no requirement that the past criminal actions all be of the same or similar form, order or arrangement; though if this has occurred, it may well suffice. [27] review of J.R.S.’s criminal history is necessary to determine whether such pattern exists as defined in s. 753(a)(i) and/or (ii) of the Criminal Code. A. J.R.S.’s Offending History [28] Defence admits J.R.S.’s criminal record, entered as Exhibit P-4 in this hearing. Defence lists total of fifty-nine convictions, and sets out the following chart in her brief to classify them: Property offences Driving offences Breach offences (Youth) Breach offences 23 (Adult) Threat offences Firearm offences Common Assault Sexual Assault (Youth) Assault with weapon Assault causing bodily harm [29] This list does not include the matters presently before the court, totalling an additional nine convictions. They include the assault, the assault causing bodily harm, break and enter, unlawful possession of cannabis marihuana, and the breaches and obstruction charges referred to herein. [30] Crown outlined J.R.S.’s criminal history in her brief, summarizing the evidence set out in Tabs 29 found in Exhibit P-6 and Exhibit P-6(a) in this hearing. The history covers time frame from 1986 when J.R.S. was youth up to 2006 when he was convicted of assaulting fellow inmate. The offences correlating to the 29 tabs in Exhibits P-6 and P-6(a) as summarized by the Crown (and referring to J.R.S. as the “defendant”) are as follows: Tab 1986-06-05 Sexual Assault Eighteen months probation Wetaskiwin s.246(1) (not on record) The defendant, 13, was sentenced June 15, 1986 to 18 months probation for sexually assaulting his younger cousin. No other file information exists except references in Pre-Sentence Reports (“PSR”). PSR dated June 5, 1986 noted that the defendant admitted to the offence and stated that he got the idea from watching videos. He later denied the offence to the preparer of the PSR. The PSR outlines J.R.S.’ academic and social history noting that he was kicked out of school the prior October for punching teacher. The PSR assessment of J.R.S. indicates that: ...he is aware that he is very much babied by his parents and uses this to his advantage to get what he wants. Consequently, J.R.S. has successfully learned to become ambivalent to most authority imposed upon him and feels he has the independence to do as he likes. J.R.S. appears to be very aggressive youth who strikes out if someone or something opposes him. He is fairly impulsive and has difficulty in delaying gratification, being oriented almost exclusively to the present, and if he wants to do something, he usually does it regardless of the consequences. Tab 1987-01-20 Breach of Probation day open custody St. Walbourg s. 26 Y.O.A. (not on record) Tab 1987-06–02 Break and Enter x3 months open custody on each conc St. Walbourg s.306(1)(b) (not on record) Theft under x2 s. 294(b) Take motor vehicle s. 295 Wilful Damage s. 387(4) During his probationary period, the defendant broke into the T[..] School, Turtleford Medical Clinic, and Turtleford Hospital and the Co-op on separate occasions. He also broke the window to motor vehicle and in another separate incident stole car. PSR dated June 2, 1987 and prepared for sentencing noted that J.R.S. needs counselling for his volatile temper, pre-occupation with starting fires and inappropriate sexual behavior. The report further went on to state that the defendant failed to complete the prior probationary term to take sex offender treatment because he and his mother denied his guilt. The report recommended that the defendant needed psychological counselling and term in custody would be the only way to ensure that he gets the help that he needs. Tab 1988-06-23 Breach of recognizance 20 months open custody (not on record) Theft under x4 s.294(b) months open custody Fail to Appear s. 133(2)(b) 18 months probation (Youth Court) The defendant committed four separate acts of theft. The first incident the defendant stole an estimated $23.00 from the referee’s room at the Turtleford Arena. He apologized and returned $15.00. The second incident the defendant and others stole gas and tire rim from farm yard. Third incident, the defendant stole tool box from the back of parked car. Fourth incident, the defendant stole cassette tape from department store. PSR dated June 23, 1988 noted that the defendant had little remorse for his involvement in the incident and that the he only showed concern for his legal predicament. In the same report, the defendant’s mother indicated that they have trouble controlling him. The same report also commented that he started re-offending seven weeks after being released from custody on his prior sentence. During the prior custodial sentence he served portion at Ranch Ehrlo, treatment-oriented facility, so that he could get counselling. Custodial Progress Report from the Battlefords’ Youth Cottage dated October 24, 1988 noted that the defendant did not progress well. He had institutional violations like stealing from other residents. Additionally, it was noted that has had inadequate parental discipline and his parents are unable to say “no” to him. Tab 1991-03-19 Break and enter with intent s.348(1)(b) 12 months (not on record) Unlawfully at large 145(1)(b) 75 days consecutive The defendant was serving youth sentence when he went unlawfully at large. While on the run he broke into the Livelong General Store. The defendant was an adult at the time of both offences. The defendant had six months left of his youth custody sentence. After serving his adult sentence, the defendant was returned to youth facility at age 19 to serve the remainder of his youth sentence. Progress Report dated March 26, 1992 noted that upon admission the defendant’s goals were to attain employment, attend Narcotics Anonymous, and to obtain his driver’s licence. The report noted that he realized all of those goals except going to Narcotics Anonymous, and that arrangements had been made for his attendance for service in his home community. Tab 1991-05-21 Assault s. 266 months concurrent with sentence serving The defendant had an altercation with an older disabled cousin at his grandfather’s house. The cousin, who requires crutches, woke the defendant suddenly and aggressively. J.R.S. responded impulsively by pushing the cousin with sufficient force causing him to fall. J.R.S. said he broke the fall. The circumstances of this incident are from the defendant’s account to Dr. Wormith. Tab 10 1991-07-07 Assault s. 266 60 days Dangerous driving s. 249(1)(a) months consecutive Impaired driving s. 253(a) 30 days consecutive Obstruction s. 129 30 days on each Probation Breach Tab 11 1993-04-29 Fail to comply s. 145(3)(a) months Fail to comply s.145(3)(a) $300 Fail to attend s. 145(2)(b) month consecutive The defendant was arrested in relation to offences contained at Tab 13. He was released and 12 days later breached his curfew clause. One month later, police were checking cars at the local bar and the defendant violated his abstain condition. He also failed to keep the peace when relative reported that he had taken battery from vehicle. Tab 12 1993-05-18 Fail to comply s. 145(3)(a) 30 days consecutive to N/A sentence serving Tab 13 1993-06-01 Assault with weapon s.267(1)(a) years less one day Assault causing bodily harm s.267(1)(b) 20 months concurrent Point firearm s. 86(1) year each concurrent Possession of prohibited weapon s.100(12) 10 year prohibition The defendant, who had just been released from jail (Tab 10), seriously assaulted his six month pregnant sister when she refused to give him keys to the family truck because he was drunk and disqualified driver. As result, he became physical with her pushing and hitting. He got her to the ground where he punched her couple of times in the head. The victim asked relative to call the police, but the defendant threatened to hit the victim more. She raced out of the house to call police; he followed and cornered her. She grabbed steak knife to defend herself, but threw it away. He kept asking for the truck keys and the victim jumped out of the kitchen window to get away. The defendant ran out of the house and he repeatedly punched her again and again on the face and head area. He then swung what the victim believed was an axe at her face. The victim said she moved out of the way and it narrowly missed her face. The victim went back into her family’s house and the defendant followed, kicking in the door. The victim ran to the bathroom and locked herself in. She opened the door because he was going to break it down. While the victim was in her parent’s house the defendant retrieved rifle from her parents’ closet. The defendant pointed the gun at the victim and her children, saying that he did not care what he did to her, her children and, her unborn child. The victim gave the defendant the keys. At some point in the assault, the victim said the defendant also kneed her once in the stomach. The entire episode lasted about to hours. She suffered sore jaw, sore hips, headaches, scratches to her neck from when he was choking her. Her unborn child was not affected. In handing down his decision and sentence, the presiding Provincial Court Judge commented at page 95 through paragraph 21 of the transcript: The public must be protected from this very violent person. He’s out of jail very short period of time and right into big trouble again. And until Mr. J.R.S. comes to the realization that he and liquor just do not mix at all, and he may never come to that realization, he is going to be nothing but trouble for those who are unfortunate enough to be in his proximity when he’s not in custody. Tab 14 1995-03-13 Fail to comply Recognizance s. 145(3) 60 days Tab 15 1995-10-02 Dangerous operation of motor vehicle $750.00 Tab 16 1996-10-15 Assault cause bodily harm s.267(1)(b) Time served day (Spousal) Fail to attend s. 145(2) year probation (Spousal) 7days consecutive The circumstances of this assault against his pregnant spouse L.L.A. are not available. However, transcript of the sentencing dated October 15, 1996 notes that the presiding Judge Kim Young PCJ stated that this was minor assault causing bodily harm where: “her injuries weren’t like many, many that you see with broken teeth or cuts or things like that. This some bruising to her neck and to her cheek.” [Transcript of Proceedings page 3, line 18] The judge, as part of the probation term, ordered that the defendant not have any contact with the victim. The prosecutor represented to the judge that the defendant had been phoning the victim upwards of nine times day from jail. [Transcript of Proceedings page 5, line 7] Tab 17 1996-10-29 Assault s. 266 30 days (Spousal) 12 months probation This assault, which pre-dates the assault causing bodily harm against L.L.A. contained at Tab 16, consisted of the defendant striking the victim twice on the head with closed fist. The victim was holding her baby at the time. third blow glanced off the victim and hit the baby. The defendant, who had been out drinking, was angry when he came home. The defendant and the victim started yelling. The defendant’s mother quickly left and then that’s when the assault occurred. Tab 18 1997-01-07 Assault s. 266 (spousal) yr. yrs. Probation Breach of probation months concurrent (Spousal) The defendant, who was on two concurrent probation orders to not have contact with his spouse, L.L.A., and had two months earlier been released from custody, hit her in the side of the head at community dance. An intoxicated defendant, punched her on her left shoulder and side. She tried to ignore him and then he punched her in the back. He began chasing her in the crowded gymnasium. She tried to run out the door and the defendant caught her and dragged her out the door despite bystanders trying to stop him. He pushed her to car, but she ran away with the encouragement of people who had been at the dance. The defendant caught her and put her in headlock taking her back to the car. The defendant had hold of L.L.A.’s hair so that she could not escape. L.L.A.’s brother hit him with bottle and he let go of L.L.A.’s hair. L.L.A. and number of people left the area. The victim suffered sore head and back. She also had some hair loss. The defendant was transferred to community training residence. His plans were to seek employment and address his anger and substance abuse issues. He completed St. Louis programming for substance abuse. He attended Alternatives to Violence programming in North Battleford, but did not complete it. Tab 19 1997-10-06 Refuse Breath Sample s. 254(5) $700, Driving prohibition Drive while disqualified s.259(4) $500 Mischief over $5000 s.430(3)(a) 30 days each concurrent Probation Breach s. 733.1(1)(a) Tab 20 1998-10-20 Probation Breach x2 s.733.1 15 days each consecutive Drive more than 80 mgs s.253(b) months consecutive Probation Breach s. 733.1 15 days consecutive Fail to Attend x2 s. 145(2)(a) 10 days each consecutive There is no file information with respect to the offences in Tab 20 except for the fail to attend. However, the endorsements on the informations indicate an admission to Saskatchewan Hospital North Battleford to determine fitness pursuant to s. 672.13 prior to his being sentenced. Psychiatrist, Dr. Oluwadairo, prepared psychiatric court report that indicates the pending offences including two threat charges against his spouse. In the report, at page the defendant admitted that: “... in the past he had beaten her (L.L.A.) up on several occasions. He also admitted that he failed to appear when he was due in court and explained that he went to work instead of going to court and he was reminded by his boss that he was due in court that day. However, it was already too late for him to get to court. On the second occasion he claimed that he was contemplating not appearing and eventually he forgot to. He claims that there were too many court dates set for him and that he was rather afraid of losing his freedom as he has been in jail almost every year since 1986.” Tab 21 1999-09-07 Breach of Probation s. 733.1 15 days Breach of Probation s. 733.1 15 days The defendant failed to refrain from drinking and failed to refrain from having contact with L.L.A.. Tab 22 2000-05-02 Drive while disqualified s.259(4) Time served (37 days) Tab 23 2001-02-06 Assault (Spousal) s. 266 months The defendant and L.L.A., who was seven months pregnant at the time, were at home. He was upset with her for not sleeping with him the night before. He suddenly punched her in the head. He said he did not care if he went to jail. He punched her twice more when they were outside. They went back into the residence and he punched her in the forehead and was holding her wrist. The defendant’s mother came out and chastised the defendant for his behavior. The defendant’s mother then left. The defendant hit L.L.A. again on the head. L.L.A. left and ran to nearby house. The defendant was arrested and released on and undertaking to not have any contact with L.L.A.. Tab 24 2001-04-19 Assault (spousal) s. 266 years each concurrent Assault with weapon x2 s.267(a) (spousal) firearm prohibition Fail to comply with recognizance x2 s. 145(3) Uttering threats s.264.1 Possession Contrary to order Pointing firearm s.87 Forcible confinement s. 279(2) The defendant was released on an undertaking August 28, 2000 in relation to an assault contained at Tab 23. condition of release was to have no contact with L.L.A.. One month after the defendant’s release, he had their son call L.L.A. and ask when she was coming home. The defendant and son went to where the victim was staying to encourage her to come with them. She did not want to make scene so she went and stayed with him at his parent’s home. She wanted to leave but the defendant told her she was staying. One week later, the defendant was drinking and that is when he started to physically abuse L.L.A. again. The abuse started after L.L.A. and the defendant were drinking with her brother. They drove her brother home and L.L.A. decided to stay with him as she was concerned about the defendant becoming abusive. The victim ran into her brother’s house to call police; the defendant followed her; and started kicking her. Bystanders could not get the defendant to stop. He then dragged the victim out of the house into the bush. The defendant warned that if someone called the police that the victim was going to get it. The defendant calmed down and talked to the victim convincing her to go home with him. few days later the defendant and the victim were at the store. The defendant became jealous of another man that was there. He drove frightened L.L.A. back to their residence. The defendant put the victim in room and started punching her, saying he wanted the truth about her suspected infidelity. He punched her nose and restrained her from running by forcing her to lie on the bed. He brought up how much she had hurt him by causing him to go to jail in 1997. He kept her in the room for to hours. The couple’s four children were in the residence. The victim tried to get them to call police. While in the room the defendant hit her with coffee cup causing cuts to her legs. He hit the victim repeatedly every time she provided an answer he did not like. When the defendant got tired of hitting her with the cup, he hit her with frozen bologna that he had given her to ease her sore nose. He proceeded to hit her all over with the frozen bologna. The defendant did not allow the victim to use the washroom telling her she could “piss herself there”. The next morning the defendant still would not let the victim out of the room. She asked if she could use the washroom she could barely walk and was sore all over. The defendant got rifle and began threatening her with it. He told her that if she ran he would shoot her. He warned that if she did get away and charge him that he would hunt her down and when he got out she would get it worse. The defendant finally allowed her to use the washroom. The victim was trying to figure out how to get away. She ran out the door and the defendant caught her. He dragged her back to the house. She grabbed her son so the defendant would not hit her. The defendant knocked her down in front of their son and then dragged her back into the bedroom. The defendant began whipping the victim’s legs and back with an elastic cord with hooks on it. He eventually stopped and said the victim could take bath. The victim got in the tub and then was concerned that the defendant would drown her so she let the water out. The defendant became angry and was pushing her head telling her not to let the water out. The victim could feel rifle to her head. He kept punching and pushing her. He would not let her put her clothes on. He threatened to tie her up naked so she couldn’t run away. He put her back in the room naked. He threatened that if she ran away he would hunt her down and she would get the same thing but worse. The defendant said that he and the victim could start over. The victim was too terrified to leave. The defendant went hunting. The victim’s brother came over and she gave him letter to give to the police. The defendant was arrested by the police and while he was being held awaiting trial he wrote multiple disturbing letters to the victim that are contained in Tab 24. In one letter he asked her to assist him in his legal predicament and then went on to say that he would be back and would retaliate. Tab 25 2003-04-17 Statutory Release The defendant was released on statutory release April 17, 2003 to live back at T[…] First Nation. Tab 26 2003-09-17 Warrant Apprehension Statutory Release Recommitted The defendant’s statutory release was suspended May 18, 2003 for drinking and assaulting L.L.A.. Tab 27 2003-11-04 Assault s. 266 months consecutive sentence serving (Spousal) The defendant was on statutory release for about one month and with the victim L.L.A. for about one week when punched the victim with both fists causing bloodied nose and redness to the cheeks. She also complained of sore jaw. The defendant, victim and some friends were in car. The defendant was passed out in the front seat. The victim was joking around and tried to wake the defendant by holding his nose. The defendant suddenly awakened, turned around and punched the victim. Tab 28 2006-03-23 Assault s.266 months consecutive The defendant and fellow prisoner were in the transport truck when the defendant struck the victim with his fist few times in the face causing bleeding nose. The dispute was over the victim’s relationship with L.L.A.. Tab 29 Predicate offence Assault s.266 (spousal) Assault causing bodily harm s.267(b) (spousal) Break and Enter with intent s. 348(1)(b) Undertaking s.145(5.1) Breach non-contact s.127(1) Pending Obstruction s. 139(2) [31] Although not referred to by the Crown in her brief, the conviction in Tab of Exhibit P-6 is relevant to this application. The conviction of assault with weapon of January 26, 1989, for which J.R.S. received four months open custody, consecutive to his serving sentence, stems from the following particulars from the prosecutor’s information sheet dated December 15, 1988: On the above noted time and date the accused was waiting for his gym class to start at the A[..] School where he is student. He obtained length of fishing line approximately feet in length from friend of his. He proceeded to wrap the line around each hand leaving length of about foot between. He walked up behind another boy attending the same gym class in manner that would not arouse suspicion, told the boy to “come here” and the reached over the boy’s head with the fishing line stretched tight between his hands in the manner of “garot”. He then attempted to bring the line tight against the boy’s neck, however the boy was able to block this attempt. struggle ensued and the fishing line was dropped by the accused. The accused then picked the boy up, held him over his shoulder, then dropped him to the floor. By the accused’s own admission, there was no provocation for this attack. The victim, Geordie CARSWELL, is thirteen years of age and considerably smaller than the accused who is also years older. B. The Pattern of Repetitive Behaviour and Pattern of Persistent Aggressive Behavior: [32] L.L.A. started relationship with J.R.S. when she was age 15. Between approximately 1995 and February, 2005, J.R.S. has been convicted of assaulting L.L.A. eight times, with an additional two as result of this conviction rendered on September 17, 2008. The conviction of assault causing bodily harm of February 20, 2005 is the predicate offence. [33] Crown submits that J.R.S. can be best described as serial spouse batterer. Crown submits that J.R.S.’s crimes against L.L.A.: ... have been perpetrated in public and in private; in the presence of his children and parents; and, when he and L.L.A. are alone. He has used his fists, feet, cords, cups and guns to cause both physical and psychological harm to L.L.A.. She has sustained spectrum of injury including cuts, bruises, bumps and scrapes to her arms, legs, head, chest, back hands and feet. The Defendant perpetrates violence against L.L.A. whenever and however he wants and always when he is under the influence of alcohol or illicit drugs. [34] On the basis of the evidence on this application, find that Crown has correctly characterized J.R.S.’s behaviour as it pertains to L.L.A.. [35] J.R.S. has been convicted of assaulting other people as well, both when he is sober and when he is intoxicated. He attacked his pregnant sister when she refused to give him the keys to the family truck. He was both intoxicated and disqualified driver at the time. [36] As youth, he attempted to strangle smaller boy, three years his junior. While on remand, he assaulted shackled fellow prisoner. [37] On the whole of the evidence, find that the Crown has proved beyond reasonable doubt that J.R.S. constitutes threat to the life, safety, physical and mental well-being of other persons. The evidence establishes that there is pattern of repetitive behaviour by J.R.S. showing failure to restrain himself and establishing likelihood of causing death or injuries to others in the future, as defined by s. 753(1)(a)(i). [38] Furthermore, the Crown has proved beyond reasonable doubt that J.R.S. exhibits pattern of persistent aggressive behaviour showing substantial degree of indifference respecting the reasonable foreseeable consequences to others of his behaviour, as defined by s. 753(1)(a)(ii). [39] On this basis, the Crown has proved beyond reasonable doubt that J.R.S. meets the criteria of dangerous offender under s. 753(1)(a) of the Criminal Code. However, on the basis of Johnson, supra, the court must enquire whether J.R.S. may be designated long-term offender in accordance with s. 753.1(1) of the Criminal Code. It is only if the court is not satisfied that there is reasonable possibility of eventual control of the risk that J.R.S. will re-offend in the community that dangerous offender designation will be imposed. (See: Moosomin, supra.) [40] now turn to the evidence and the expert testimony presented at the hearing. V. EVIDENCE [41] Crown and defence led evidence in this hearing addressing the issues outline in Lemaigre, supra, and in Moosomin, supra, to assist the court in determining whether J.R.S.’s risk in the community can be managed to an acceptable level. A. Crown Witnesses [42] Jack McDowell is the assistant deputy director of operations at the Saskatoon Correctional Centre. J.R.S. was admitted to remand on March 2, 2005, after he was arrested for the charges which are now the subject of these convictions. McDowell confirmed there is no programming available to persons on remand. J.R.S. committed institutional infractions over the time frame, and the assault on Benjamin Fineday in 2006 was the most severe. McDowell stated J.R.S. has not been member of gang, and he has been employed on the remand unit as domestic, which is position of high trust within the correctional centre. [43] Reyna Siwak is parole officer with Corrections Services Canada (“CSC”), and employed at the Saskatchewan Penitentiary in Prince Albert. She develops and manages offenders’ plans to reduce their risk of re-offending. J.R.S. was one of her cases when he was sentenced to three year term (following guilty plea and joint submissions) for the assaults committed against L.L.A. in 2000. [44] Siwak’s case plan for J.R.S. during his incarceration from April, 2001 to April, 2003 included the cognitive skills programming, the intensive substance abuse programming, and the aggressive behaviour control programming (the “ABC” programme). Siwak recounted that J.R.S. did well in the cognitive skills programming. He completed the intensive substance abuse programme (“OSAP”), but when he was required to participate in the maintenance programme for substance abuse, his motivation deteriorated. Indeed, within one month of being released from the Penitentiary, J.R.S. assaulted L.L.A. while intoxicated, and his release was suspended by the National Parole Board (“NPB”). [45] Siwak stated J.R.S. needed to address his family violence issues when he was incarcerated in 2001. The ABC programme was the one available at that time. It was high intensity six month programme directed at dealing with violent behaviour. [46] While J.R.S. signed the waiver at the time of intake to participate in the ABC programme, he changed his mind and did not take the programming. He stated he wanted to take another programme titled “In Search of Your Warrior” but Siwak explained it was merely pilot project at the time and not available to J.R.S. at his intake. [47] Defence counsel, on cross-examination, pointed out that it has been seven and one-half years since J.R.S. had refused to take the ABC programme. However, this time frame means little, because soon after J.R.S.’s release he committed the predicate offence and other offences, and has been on remand since. There has been no opportunity for CSC to assist him with his domestic violence issues to date. [48] Dr. Wayne Schapkohl is psychologist employed with the Prairie North Mental Health Unit in North Battleford. He treats offenders ordered by the domestic violence options court, project of the Provincial Court of Saskatchewan. He explained how the treatment programme operates. About one third of its participants are from outlying areas, including the T[…] First Nation. [49] Dr. Schapkohl testified that the records of the Battlefords Mental Health Centre indicate that J.R.S. entered therapy in 1989. He was doing well with the sessions, but the group sessions were discontinued before he completed the programme. The records indicate that J.R.S. started an Alternatives to Violence programme in November, 1997. The records indicate he had assaulted his spouse, and that he had long history of alcohol abuse. The records indicate J.R.S. did not complete this programme. [50] It was Dr. Schapkohl’s view that if there is long history of substance abuse by an offender, as well as spousal abuse, it is better to treat the substance abuse issues first. [51] Michelle Ketmerick is the director of the Saskatchewan Impaired Driver Treatment Centre, formerly the St. Louis Alcoholism Rehabilitation Centre. Ketmerick stated that the Centre uses similar treatment model as CSC for substance abuse, that is, cognitive behavioural approach. [52] The Centre’s records indicate that J.R.S. took the substance abuse programme at St. Louis in 1997. He completed the programme. However, he only remained sober for period of six months thereafter. [53] In cross-examination by defence counsel, Ketmerick admitted that relapses are common. However, the person must be able to succeed in his own environment. If an offender returns to the same environment, he will need mentor or support system, like NADAP. [54] Lee Ann Skene is the manager of programmes for CSC at the Saskatchewan Penitentiary. She outlined the intake procedure for an offender and how corrections plan is developed for him. This includes extensive interviews with the offender. [55] All programmes are voluntary, and offenders are paid to attend them. All offenders know the difficulty of early release if they have not addressed areas of concern outlined in their correctional plan. [56] Skene confirmed that high intensity programmes are offered for substance abuse and for family violence. While any inmate in segregation cannot take programming, it is otherwise offered to all inmates, including those serving an indeterminate sentence as dangerous offender. The waiting lists for programmes are short. Skene estimates that J.R.S. could complete both the substance abuse programme and family violence programme within two years after completion of intake. [57] If an inmate is successful in his rehabilitation, he can be reclassified to minimum security. After period of stabilization, even dangerous offenders may apply for temporary absences, then day parole, and full parole. Skene stated that the dangerous offender must make the necessary changes in his risk to re-offend; CSC is there to help him make those changes. [58] In cross-examination by defence counsel, Skene admitted that the question of addressing the offender’s risk in the community includes the community support available to the offender. That is one factor in addressing the offender’s risk. [59] Alan Vermeulen is community parole officer for CSC, and supervised offenders on release in the community in north-west Saskatchewan from 2005 2009, including the T[…] First Nation. He does not know J.R.S. personally. [60] Vermeulen explained that the community parole officer visits offenders on weekly basis on the T[…] First Nation. Along with visiting the offender, Vermeulen usually consulted the NADAP worker and his employer (if applicable) to confirm the offender’s progress. Twenty-four hour supervision is not possible at the T[…] First Nation. The NADAP worker is the only resource for an offender, other than the Alcoholics Anonymous weekly meetings in Turtleford. [61] Vermeulen agreed with defence counsel that it would be ideal if the T[…] First Nation had programme in place to assist J.R.S. and the First Nation wanted to work with him. [62] The last witness to testify for the Crown was L.L.A. herself. At the commencement of the hearing L.L.A. advised the Crown she had recently received two letters from J.R.S.. The Crown arranged for subpoena for L.L.A. to testify. [63] L.L.A. brought two letters from J.R.S., one consisting of two handwritten pages and second one consisting of six handwritten pages. The letters being Exhibits P-10 and P-11, are undated. Both were in her mailbox when she went to collect her mail at Cutknife the second week of September, 2009. [64] L.L.A. explained that J.R.S. telephoned her several times during September, 2009. She talked to him because of their children, who want their parents to be friends. L.L.A. stated that she took therapy for year to deal with J.R.S.’s violence against her. L.L.A. told defence counsel that “J.R.S. needs lot of treatment.” [65] The contents of the two letters are disturbing, to say the least. The first letter instructed L.L.A. to get lawyer and explain that she lied at the trial. J.R.S. told her that his family would pay her legal costs. He told her not to tell anyone that he put her up to it. [66] The second letter, which states that the dangerous offender hearing is forty-nine days away, outlines in point form what J.R.S. wants L.L.A. to do to overturn this conviction. He perceives that if she lies, he will have the case dismissed against him. She, on the other had, will get fined or probation. J.R.S. added at page 2: ...you won’t go to jail because you don’t have prior record. know was wrong the last time but never thought you’d be placed in jail. Contempt of court is more serious case, plus you didn’t have lawyer to protect you. This time you will cause i’ll make sure you have one at my expense. [67] At page 3, J.R.S. continued: ...I don’t feel proud for what i’ve done to you. Hell, was scared right from the start. Do you remember how bad felt and stayed by your side throughout your injuries? was scared for you cause knew could’ve killed you by accident. laid with you, hugged you, and nursed you, my doings to you were so wrong. Here was trying to get back with you and rather than protecting you hurt you ... [68] At page 5, J.R.S. outlined, in point for, what he wanted L.L.A. to do to overturn the conviction: L.L.A., i’ll just write out the steps that you must take if you’re going to help me. Rather than waiting for your letter and then me writing back. By the time we get that done, at least wks will go by. So here are the steps: You’ll have to do it in the order put it. (1) Get ahold of lawyer. (2) Explain the situation that you made mistake that got me convicted. (3) Tell him or her about how you were treated by the system so you only said what they wanted to hear, and that they forced you to lie about my case. (4) Your injuries came from fighting Wop and Kyle throwing you off the steps. Kyle can’t say he did that to you because he already told my lawyer he doesn’t remember anything that evening. (5) If you are questioned why you blamed me, you can say because it’s what they wanted to hear. They even put you in jail because you wouldn’t testify. The letters wrote to you while you were in P.Grove were only answered mail that you had written to me. (6) Ask questions that you need to know. Which ever lawyer you get if you to help me will guide you as well... B. Defence Witnesses [69] Chief D.A. testified that he has been chief of the T[…] First Nation for the last three years of four-year term. He is pipe carrier, and recounted that culture was his personal salvation. Until he was age 24, he had been an alcoholic. Now he has an education degree and has spent time helping others. [70] Chief D.A. filed letter with the court stating that if J.R.S. is released from custody, he “is welcome to reside on the T[…] First Nation as he is not viewed as an imminent threat to the public or to himself”. The letter also states that the chief and council will assist J.R.S. “both generally and financially to ensure that Mr. J.R.S. is able to undergo any necessary treatment as determined by health care professional and further, to ensure he complies with any other Court imposed conditions.” [71] Chief D.A. also filed with this hearing copy of band council resolution from the P[…] First Nation, resolving to assist the court by facilitating the no-contact clause as it relates to its member, L.L.A.. The band council resolution states that “should J.R.S. be released from custody that it is clearly understood that he is not to enter P[…] First Nation for any reason for the duration of the Court order”. [72] Chief D.A. stated that J.R.S. has never contacted him, and he does not know J.R.S. personally. Chief D.A. stated that he has instructed the justice worker to prepare plan for J.R.S.’s return to the community. He stated that the NADAP worker will prepare substance abuse programme for J.R.S.. None of this had been completed by the time of this hearing. Chief D.A. admitted that J.R.S.’s situation is extreme, and an extreme programme will not be developed until needed. [73] Chief D.A. sees J.R.S.’s parents as huge positive influence. They practice traditional cultural ways, and they are respected in the community. [74] M.T. has been the justice co-ordinator for T[…] First Nation for three months. This is an interim position and she will return to her employment in the Yukon at the end of the twelve month term. She brought letter to court which confirms that J.R.S. would have full-time employment as lumber piler upon his return to T[…] First Nation, with the Thunder Employment Field Services. [75] T[…] First Nation stated she started working on case plan for J.R.S. the week prior. There were no details provided to the court. T[…] First Nation stated that there are other resources available on the reserve, including life skills programme offered twice week, and Alcoholics Anonymous weekly meetings in Turtleford. She admits there are no programmes to deal with violent behaviour. However, she states that she is available anytime if J.R.S. feels he has problems. [76] Randall Simpson is corrections worker at the Saskatoon Correctional Centre. He works on the remand unit, and has observed that J.R.S. quickly worked his way up to position of trust in the unit. That is, he is assigned to plate the meals on the unit for the inmates because he divides up the portions of food fairly among the inmates. [77] Simpson agrees that J.R.S. has had periods where he got into trouble on remand. But, he can go for large stretches of time without any incidents. In short, Simpson finds that J.R.S. behaves well in the structured environment of the institution. C. The Expert Evidence [78] Three witnesses testified who were qualified to give expert testimony. Dr. Roger Holden completed the part XXIV assessment on J.R.S. as required by the order. He was qualified as psychologist to give opinion evidence on the assessment of violent offenders who may be designated as dangerous offenders or long-term offenders. [79] The Crown also called Deborah Farden, masters level psychologist, who was qualified as an expert to give opinion evidence on intimate partner violence, including the treatability of intimate partner offenders and the availability of treatment options in the community. [80] Defence called Dr. Stephen Wormith. He was qualified as an expert to provide evidence on the dangerous offender designation as it relates to J.R.S.. 1. Deborah Farden [81] Deborah Farden has worked extensively in the area of femicide, that is, women killed who were involved in an intimate relationship. She now accepts referrals from the domestic violence court operated under the Provincial Court of Saskatchewan in Saskatoon. There are 95 120 men in this programme at any time, most are medium to high risk offenders, including aboriginal offenders. Farden explained that programmes offered in the community to treat offenders for domestic violence are limited to Saskatoon and North Battleford. [82] For an offender to be successful in treatment, he must have an individual level of responsibility. This is so even if First Nation community offers to take responsibility for him. Even if the partner to the intimate personal relationship does not behave well, the offender in treatment is responsible for his own behaviour. [83] An offender is likely to be more successful in his treatment if his family speaks up against the violence. The more strongly the offender gets this message, the more likely it will affect his change. [84] Farden outlined the various lethality indicators of femicide. They include: a. stalking and continued, persistent, unwanted contact (in person, by letter, through other parties); b. an unemployed male; c. history of prior spousal violence; near-femicide predicts future incident; d. history of avoiding arrest for the intimate partner violence, that is, dissuading the partner from going to court; e. children in the home who do not belong to the offender. [85] If all these factors are present, there is high lethality risk for femicide. [86] Farden does not know J.R.S. and did not comment on him personally. However, find that the evidence before the court points to high lethality risk of femicide in J.R.S.’s situation with L.L.A.. He continues to stalk L.L.A. by letter, attempting to put her freedom in jeopardy for his personal gain. The numerous obstruction convictions in this case result from J.R.S.’s attempt to dissuade L.L.A. from testifying against him. The serious spousal violence of 2000 was followed by second serious spousal violence perpetrated against L.L.A. again not long after J.R.S.’s release from incarceration. [87] J.R.S.’s family, to date, has done nothing more then attempt to cover for his violent behaviour against L.L.A.. His father told story at trial that L.L.A. must have sustained her injuries from falling down the basement stairs. His father also took the fifteen year old son along to witness his father beat his mother, and then observe J.R.S. bring her back to house [...] to be hidden from view until the R.C.M.P. executed Feeney warrant to locate L.L.A.. J.R.S.’s mother was an accomplice in hiding L.L.A. in the house while her injuries healed. [88] Neither Dr. Holden nor Dr. Wormith see themselves as experts in intimate partner violence. Farden’s testimony was helpful for the court to appreciate J.R.S.’s level of risk to harm L.L.A.. 2. Dr. Roger Holden [89] As result of the testing and interviewing of J.R.S., Dr. Holden concluded that J.R.S. is high risk to re-offend in violent manner. J.R.S. has chronic alcohol problem and is violent person, especially when he is intoxicated. [90] The release plan J.R.S. completed for Dr. Holden was superficial and did not address the problems he must address to rehabilitate. J.R.S. planned to return home and get job. Dr. Holden stated that there is problem in him returning to the T[…] First Nation. He will return to the same group of peers that facilitate his substance abuse. His family has supported his spousal abuse in the past. Dr. Holden could say no more about the family because he tried to contact J.R.S.’s parents several times for this assessment, but was unsuccessful. [91] Dr. Holden found that J.R.S. does not express remorse for his wrongdoings; he does not accept his culpability; he minimizes his criminal behaviour. Dr. Holden states that all of this leads to poor prognosis for treatment. [92] While J.R.S. is highly intelligent, he has an antisocial personality disorder. He is indifferent to rules, adjusts poorly in the community, and conducts criminal activity. J.R.S. has psychopathic tendencies which makes one less optimistic about the treatment outcome. [93] Dr. Holden testified that J.R.S. requires high intensity violence related programming offered by CSC to address his violent tendencies. He also requires intensive substance abuse treatment. However, because J.R.S. has taken these programmes and re-offended in violent manner afterwards, while intoxicated, definite period of incarceration has the potential for relapse. J.R.S. needs significant change of attitude to stop drinking. It is not impossible that he will stop drinking; but it is highly unlikely. [94] Dr. Holden concluded that J.R.S. is treatable because he is intelligent, young and wants to get out of jail. However, his prognosis for J.R.S. is guarded. J.R.S.’s ability to benefit from treatment is unknown. Dr. Holden cannot estimate time frame for eventual control in the community of J.R.S.’s risk to re-offend. [95] All that being said, Dr. Holden concluded that the court ought to find J.R.S. long-term offender. [96] In cross-examination by defence, Dr. Holden explained that having high intelligence quotient means that J.R.S. is able to understand the programming and he has better potential for insight. [97] Dr. Holden stated that he has “guarded hope” for J.R.S.. If J.R.S. addresses his impulsiveness and alcoholism, and learns more appropriate behaviour, Dr. Holden’s hope is guarded but good. If J.R.S. drinks alcohol again, the prognosis is poor to non-existent. 3. Dr. Stephen Wormith [98] Defence called Dr. Wormith to provide opinion evidence on whether J.R.S. ought to be designated dangerous offender. Dr. Wormith concludes that long-term offender designation is appropriate. [99] Dr. Wormith and Dr. Holden utilized different testing methods, but came to similar conclusions. Both experts agree that J.R.S. is high risk to re-offend generally and violently. The risk is the same as when he was remanded in custody. J.R.S. requires intensive programming to deal with his substance abuse and his domestic violence tendencies. They agree that J.R.S. has an antisocial personality disorder. They agree that J.R.S. is intellectually bright, and the potential for him to learn is good, for example, in using abstract reasoning skills. [100] Dr. Wormith stated the premise that the dangerous offender designation is based on the criteria that it identifies those offenders with an extremely high likelihood of offending in very serious way. The provisions of s. 753(1) of the Criminal Code are not to target individuals who have not committed the most violent offences. He stated that he considers the severity of the offence in providing his expert opinion. Dr. Wormith concluded that the predicate offence of the assault on L.L.A. is not an assault that rises to the level of severity to consider J.R.S. dangerous offender. Therefore, J.R.S. ought to be found long-term offender. [101] Dr. Wormith concluded that full scope of treatment has not been provided to J.R.S. in the past. He suggested that fixed sentence provides time frame for CSC to provide the necessary programming that J.R.S. requires. [102] Dr. Wormith suggested that this dangerous offender application is sufficient motivation for J.R.S. to take responsibility for his behaviour and to reduce his risk to the public. Dr. Wormith stated that J.R.S.’s present risk can be reduced if J.R.S. takes treatment. This presumes that he will participate in programming, that he has positive and appropriate behaviour while incarcerated, that he does not drop out of the programmes, and that he internalizes the programming. Dr. Wormith does admit that J.R.S.’s history of decreasing involvement in programming offered to him while incarcerated is “of concern”. [103] Dr. Wormith referred in his report to patterns emerging from review of J.R.S.’s criminal history. This theme includes at page 12: ... With the exception of some adolescent aggression, the sole victim has been Mr. J.R.S.’s ex-spouse. Although it is not the intention or purpose to assess the dynamics of this relationship, nor to attribute any blame to the victim it is possible that Mr. J.R.S.’s behaviour is at least partially product of this particularly dysfunctional relationship to which both parties have contributed. [104] Dr. Wormith admitted that intimate partner violence is not an area of specialty. Dr. Wormith admitted that the factor of separation between J.R.S. and L.L.A., which he saw as mitigating factor when he prepared his report, may not be so given that J.R.S. has written letters to L.L.A. recently. Those letters envision ongoing contact with L.L.A. on J.R.S.’s part. Dr. Wormith agreed with Crown that J.R.S. has not broken with L.L.A. psychologically. [105] Dr. Wormith admitted that J.R.S. lying to him about his lack of recollection of the assault on L.L.A. has treatment implications. The letters sent to L.L.A. caused Dr. Wormith concern as to whether J.R.S. will comply with court orders. [106] All that being said, Dr. Wormith concluded that long-term offender designation is appropriate. However, J.R.S. may not be able to return to his home community for supervision because it is too easy for him to return to his former lifestyle. [107] Dr. Wormith could not provide an opinion on the length of time it will take for J.R.S. to benefit from programming such that his risk to re-offend may be controlled in the community. He stated that it all depends on J.R.S.’s rate of progress. It is Dr. Wormith’s hope that J.R.S. takes advantage of the opportunity to reduce that risk. VI. ANALYSIS AND CONCLUSIONS [108] The evidence is conclusive that the offence for which J.R.S. has been convicted is a serious personal injury offence as required by s. 753(1)(a) of the Criminal Code. The evidence is also conclusive that J.R.S. constitutes a threat to other persons because of his pattern of repetitive behaviour as defined in s. 753(1)(a)(i) and his pattern of persistent aggressive behaviour as defined in s. 753(1)(a)(ii). The opinions of Dr. Holden and Dr. Wormith both find J.R.S. to be high risk to re-offend in violent manner. [109] Before the court finds J.R.S. dangerous offender, the provisions of s. 753.1(1) pertaining to long-term offenders must be considered. Case law requires the court to be satisfied of all the conditions set out in s. 753.1(1) of the Criminal Code. The Crown has proved beyond reasonable doubt that it would be appropriate to impose sentence of imprisonment of two years or more for the predicate offence. J.R.S. has also been convicted of breaking and entering dwelling house to commit an indictable offence pursuant to s. 348(1)(b) of the Criminal Code. That offence carries maximum sentence of life imprisonment. [110] The Crown has proved beyond reasonable doubt that there is substantial risk that J.R.S. will re-offend. Thus, am satisfied as to the conditions set out in s. 753.1(1)(a) and (b). [111] For the court to find J.R.S. long-term offender such that definite sentence may be imposed, followed by supervision in the community, must be satisfied that there is reasonable possibility of eventual control of the risk in the community, as required by s. 753.1(1)(c). [112] Both Dr. Holden and Dr. Wormith are of the opinion that long-term offender order is appropriate. Although defence counsel suggested that J.R.S. would be given “time served” for being on remand, and then released on certain conditions, neither expert sees this as viable at present. Both experts recognize that J.R.S. requires programming for his substance abuse and his violent behaviour in an institutional setting. [113] The T[…] First Nation wants to provide support for J.R.S.. However, on all the evidence, its support system is at present non-existent. Assurances by the band council that conditions will be complied with and band council resolutions to prevent J.R.S. from contacting L.L.A. are positive steps. However, must conclude that they will no more sanction J.R.S. than any previous or current court orders have done. [114] must reject both Dr. Holden’s and Dr. Wormith’s expert opinions that long-term offender order would be appropriate. Dr. Holden’s opinion is based on hope. Dr. Wormith’s opinion is based on an incorrect premise in law and on misapprehension of the facts. [115] As reviewed in R. v. Haug, 2008 SKCA 23 (CanLII), the test for J.R.S.’s eventual control in the community is not based on hope, but reasonable possibility of eventual control. Smith J.A. stated at para. 87 91: In Goforth, the trial judge had relied upon the evidence of the assessment report of the clinical psychologist, who opined that the offender should be designated long-term offender although his previous behaviour suggested that he was not presently manageable in the community and there was "little possibility of the eventual control of the risk in the community," noting that he had had opportunities in the past to participate in rehabilitative programs while incarcerated but had been unable to apply knowledge learned in ameliorating risk in the community. Nor had he taken any responsibility to address his problem of substance abuse and the pattern of violent behaviour was escalating. Nonetheless, the expert felt that the offender ought to be given an opportunity to avail himself of high intensity programs which "may" ameliorate his risk to re-offend if he availed himself of such programs. This witness had testified that he did not feel "totally hopeless" about the likelihood of the offender's risk becoming manageable in community setting, and that "there's smidgen of chance." (Quoted at paras. 43 and 44 of the appellate judgment) This Court held that the trial judge had wrongly interpreted s. 753.1(1)(c) as meaning dangerous offender designation was available only if there was no possibility Mr. Goforth would respond to treatment. Richards J.A., writing for the Court, said this: 54 The line of analysis employed by Dr. Holden and the trial judge runs counter to substantial body of appellate level case law. Sections 753.1(1)(c) of the Code requires that, in order to warrant long-term offender designation rather than dangerous offender designation, there must be reasonable possibility of eventual control in the community of the risk of reoffending posed by the offender. The authorities indicate that "reasonable possibility", of necessity, must involve something more than hope or empty conjecture. In and of itself, the mere possibility that the offender might benefit from treatment is not sufficient to warrant conclusion that there is reasonable possibility of eventual control of the risk of reoffending. In other words, dangerous offender designation is not contingent on finding that the offender has absolutely no prospect of successful treatment while incarcerated. ... 65 The real question is whether it is reasonable to conclude Mr. Goforth will make that progress within the period of time comprehended by an appropriate determinate sentence. In my respectful view, the learned trial judge did not come to grips with this root issue. Rather, he proceeded on the basis that, in the absence of proof further programming would not succeed, the dangerous offender application should be rejected. This was misinterpretation of s. 753.1(1)(c) of the Code and an error of law. As this Court commented in Goforth, this view is consistent with substantial body of appellate level case law. The mere possibility that the offender might in the future benefit from treatment, to which he has been completely unamenable in the past, is not sufficient to warrant conclusion that there is reasonable possibility of eventual control of the risk of re-offending. In Pedden, the Court held, at para. 26, that "the Code does not require that the Crown prove absolute "intractability" (a word that does not appear in s. 753) i.e., that the offender will never be treatable in his lifetime" and added this comment, already quoted above: 30 In the case at bar, would emphasize the word "reasonable" as qualifier of "possibility" and the phrase "within the terms of the long-term offender provisions". Again, the Crown is not required to prove absolute intractability to meet its burden. If, as in this case, there is "possibility" of future treatment, but it is unlikely that such treatment or control can be effected within the parameters of the appropriate fixed sentence and supervisory conditions in the community, long-term offender designation is not appropriate. Similarly, in R. v. Allen, 2007 ONCA 421 (CanLII), 221 C.C.C. (3d) 261, the Ontario Court of Appeal held that the test pursuant to s. 753.1(1)(c) is "not some vague hope of managing the risk in the community but reasonable possibility of doing so." [116] Dr. Holden cannot estimate if or when J.R.S.’s risk to reoffend could be controlled in the community. At best, Dr. Holden has guarded hope for J.R.S.’s progress. That falls far short of the test imposed on the Crown to salsify the sentencing judge. [117] Dr. Wormith formed his opinion on the premise that dangerous offender designation is warranted solely for the worst offenders, who have an extremely high likelihood of offending in serious way. That is clearly wrong. As stated in Goforth, supra, qualitative assessment of the degree of violence is not required for finding of dangerous offender. [118] Dr. Wormith has also mis-apprehended the circumstances of the predicate offence. In examination-in-chief, Dr. Wormith referred to page 13 of his report, which stated that “there is no evidence that his domestic assault is escalating as his most serious domestic assault occurred in 2001 ...” He admitted that alcohol was involved in the predicate offence, but stated that, because this offence was not as horrific an offence in comparison to the previous one, that was cause for encouragement. [119] Dr. Wormith has no such cause for encouragement. The predicate offence is an horrific offence, as was the 2000 assault conviction that placed J.R.S. in prison in 2001. J.R.S. wrote to L.L.A. just prior to the hearing, “I could have killed you by accident.” [120] Dr. Wormith also supports the long-term offender status for J.R.S. because he had not been provided the full scope of treatment in the past. This premise is inaccurate. J.R.S. has been offered intensive family violence treatment, but he declined the opportunity. The substance abuse programming that J.R.S. took has been ineffective. He re-offends in serious manner, under the influence of alcohol, in short time after release from prison. [121] Dr. Wormith cannot predict how long J.R.S. will require to benefit from treatment. His opinion is based on hope that J.R.S. will take advantage of the programmes in CSC. As stated previously, an expression of hope is insufficient to satisfy the sentencing judge there is reasonable possibility of eventual control of J.R.S.’s risk to re-offend within the community. [122] The expert testimony of Deborah Farden must be considered. The factors outlined by Farden provide high lethality risk for femicide in J.R.S.’s present situation. L.L.A.’s safety cannot be ignored. As shown by the transcript of my decision on conviction dated September 17, 2008, J.R.S. has made threats against L.L.A. after she testified against him in 2005: [51] Interestingly, letters seized by Robert Legue as result of the Saskatoon Correctional Centre routine inspection of cells shows different side of the accused after L.L.A. did testify against him in Provincial Court. The letter (Exhibit P-12) dated June 13, 2005, written by the accused states: “I can’t believe that let my ex con me into her trap, that sneaky bitch. Hey, is there any (IP) girls in there? If my ex goes back in there will find way to have her tuned up ...” [52] Mr. Legue, the corrections supervisor, explained that “IP” refers to Indian Posse. Because the contents of the letter seemed to be threats against L.L.A., he notified the Crown about it. [123] J.R.S.’s long history of non-compliance with court orders, including his recent contact with L.L.A. to attempt to obstruct justice, provides no assurance that he can be controlled in the community. determinate sentence followed by long term supervision is not appropriate. The possibility that J.R.S.’s risk to re-offend can be eventually controlled in the community is so remote that the requirements of s. 753.1(1)(c) of the Criminal Code are not satisfied. [124] Thus, because the Crown has proved the essential elements of s. 753 of the Criminal Code beyond a reasonable doubt, J.R.S. is designated a dangerous offender. Because no lesser measure under s.753(4) will adequately protect the public, J.R.S. is sentenced to imprisonment in a penitentiary for an indeterminate period on the conviction pursuant to s. 267(b) of the Criminal Code. [125] As to the remaining eight charges (the six guilty pleas and two convictions), J.R.S. is sentenced to time served. [126] Although these following orders have been made by previous sentencing judges, to the extent they are necessary to be repeated, J.R.S. is prohibited from possessing firearms, crossbows, restricted weapons, ammunition, and explosives for life, in accordance with s.109 of the Criminal Code. Furthermore, as this is primary designated offence within s. 487.04, make an order in Form 5.03 authorizing the taking of samples of bodily substances required for the purpose of forensic DNA analysis. [127] It is hereby ordered that all reports, testimony, and transcript of the trial, including my decision and the ruling on the Charter application cited as 2008 SKQB 288 (CanLII), be forwarded to CSC, as required by s. 760 of the Criminal Code. J. A. R. ROTHERY

The accused was convicted of common assault, break and enter and commit assault and assault causing bodily harm and his former common law spouse was the complainant in each instance. The accused also entered guilty pleas to three charges stemming from breaches of no-contact conditions with the same complainant plus two charges of obstruction of justice by attempting to dissuade the same complainant from giving evidence. The RCMP had to execute a Feeney warrant to locate the complainant in the accused basement. The Crown sought an order declaring the accused a dangerous offender. HELD: The accused was designated a dangerous offender and was sentenced to imprisonment in a penitentiary for an indeterminate period on the conviction pursuant to s. 267(b) of the Criminal Code and received time served on the remaining eight charges. The evidence is conclusive that the offence for which the accused was convicted was a serious personal injury offence. The evidence was conclusive that the accused constitutes a threat to other persons because of his pattern of repetitive behaviour and persistent aggressive behaviour. The accused's First Nation would provide support for the accused but its support system is presently non-existent. The Court rejected the expert opinions recommending a long term offender order as being appropriate.

7_2010skqb33.txt

INTERVENOR Saskatchewan Court of Appeal Citation: Strickland v. Ermel Date: 1993-09-29 Docket: 1223 Between: Tom Strickland on behalf of himself and all members of the Association of Professional Engineers of Saskatchewan employed by the Saskatchewan Institute of Applied Science and Technology and Ralph Ermel, on behalf of himself and all members of the S.G.E.U. Siast Academic bargaining unit, Saskatchewan Institute of Applied Science and Technology and Attorney General for Saskatchewan Before: Wakeling, Gerwing and Sherstobitoff JJ.A. Appearances: L.F. Seiferling, Q.C., for Strickland D.S. Bailey, for S.I.A.S.T. N.R. McLeod, for S.G.E.U. J.T. Irvine, for Attorney General of Saskatchewan [1] SHERSTOBITOFF J.A.:– The appeal [from 1992 CanLII 7943 (SK QB), [1992] 6 W.W.R. 116] must be dismissed. [2] Firstly, we are in general agreement with the reasoning of Wright J. Although his reasons are clear, there is some confusion as to the answers he gave to the questions posed in his judgment. In an addendum, he said that the answer to question should be no. It seems clear that he was referring to question 5, rather than question 4. The result is the same, in any event. [3] Secondly, the case was put to the court below prematurely, with the result that it was put on what was essentially hypothetical basis, and Charter decisions should not be made without sufficient factual base. There was no evidence put before the court that the appellants or any of them had yet suffered any adverse consequences as result of the impugned legislation, although proceedings were pending before the Labour Relations Board which might result in adverse consequences. More particularly, there was no evidence that anyone had lost their job or had been in any way penalized for refusing to either pay union dues or to join the union, nor was there any evidence as to why anyone objected to being member of the bargaining unit in question or the union in question so as to permit any reasoned decision as to the alleged right not to associate. [4] The respondents shall have their costs of the appeal under double col. V, except the Attorney General who did not ask for costs. Appeal dismissed.

Members of the Association of Professional Engineers who were also SIAST employees challenged the statutory provisions and collective bargaining agreement whereby they were compelled to become members of the SGEU. In Queen's Bench it was held that the statutory provisions which created two bargaining units for institute employees and required certain employees to be union members did not violate s.2(d) of the Charter. Appeal dismissed

b_1993canlii6618.txt

Defendant S.C.A. No. 02569 IN THE SUPREME COURT APPEAL DIVISION Hallett, Chipman and Freeman, JJ.A. BETWEEN: CANADIAN GENERAL INSURANCE COMPANY, body corporate and A.L., J. L., L. M., and B.M. Respondents David Farrar for the Appellant W. Dale Dunlop for the Respondent Appeal Heard: June 3, 1992 Judgment Delivered: June 26, 1992 THE COURT: Appeal dismissed with costs in the amount of $1200.00 to the respondent per reasons for judgment of Hallett J.A.; Chipman and Freeman JJ.A. concurring. HALLETT J.A. This is an appeal from a decision of Mr. Justice Gruchy dismissing the appellant's claim that the respondent J.L. conspired with Myrna and Michael Nicholson to have the seasonal dwelling owned by the four respondents intentionally burned. The appellant had paid the fire loss of $20,000.00 before learning of facts which led to the allegation of conspiracy. The appellant asserted in its statement of claim that the fire loss occurred as result of wilful act, neglect, procurement means or connivance of the respondents or any of them and as result the respondents were not entitled to recover under the insurance policy. The appellant pleaded and relied on the provisions of the insurance policy and on the Insurance Act, R.S.N.S. 1989, Chapter 231 and in particular the statutory conditions to Part VII. The appellant claimed payment of the sum of $20,000.00 plus expenses associated with investigating and adjusting the loss. The learned trial judge stated there were two issues before him which he described in his decision as follows: 1. Did Mrs. J.L. conspire with her sister and brother‑in‑law, Myrna and Michael Nicholson, to burn the cottage? and 2. Did Mrs. J.L. breach the statutory conditions of the policy by making false statements?" Counsel for both parties advise us that at the pre‑trial conference it was agreed that the appellant could raise the second issue identified by the trial judge notwithstanding it was not pleaded in the statement of claim. The learned trial judge found as fact that Mrs. J.L. did not conspire to burn the cottage. That finding is not appealed. The learned trial judge found that Mrs. J.L. did not make false statements to the appellant respecting the cause of the fire and therefore did not breach the statutory conditions. That finding of the learned trial judge is under appeal. The parties have agreed on the consequences which will flow from liability being found against Mrs. J.L.. The cottage was insured with the appellant against fire loss for the sum of $20,000.00. The cottage had been broken into and vandalized on number of occasions, the last act of vandalism having occurred short time prior to the fire on July 6, 1989. Approximately two weeks before the fire Mrs. J.L. had made lighthearted comment at social occasion, when discussing the fact that the cottage had been vandalized, that they would have been better off if the vandals had burned it down; it would be worth thousand or two. Her sister Myrna Nicholson was present. few days after the fire Myrna Nicholson told Mrs. J.L. she wanted thousand dollars for herself and her husband Michael Nicholson for making arrangements to have the cottage burned. She indicated to Mrs. J.L. that if she did not pay she would tell her mother that Mrs. J.L. had the cottage burned. On July 12, 1989, Mr. Lynds, the appellant's adjuster, took statement from Mrs. J.L.'s husband in her presence. Mr. J.L. knew nothing of the conversation his wife had with Myrna Nicholson. Mr. Lynds did not take statement from Mrs. J.L.. She did not mention the conversation with her sister to Mr. Lynds. Mr. Lynds did not inquire of her if she knew how the fire originated. Mr. Lynds concluded the fire was caused by vandals. The loss was paid by the appellant on August 18, 1989, at which time the appellant's adjuster provided the respondents with proof of loss to be signed and returned. Upon getting the settlement cheque from the appellant Mrs. J.L. attended at the bank, deposited $10,000.00 and withdrew thousand dollars in cash. She went to her sister's home and paid Myrna Nicholson the $1,000.00. At that time Mr. Nicholson was present and said that he required an additional one thousand dollars. He implied there could be problems for her husband from the 13th Tribe (a motor cycle gang) which he inferred set the fire. He stated to Mrs. J.L. that he was required to pay them $1,000.00. Mrs. J.L. wrote out cheque for another one thousand dollars. Mrs. J.L. testified at trial that she was fearful of her brother‑in‑law based on past experiences. The learned trial judge accepted her evidence. On or about October 13, 1989, the insurance adjuster not having received the proof of loss form that he had provided to the respondents sent out another proof of loss form. Numerous phone calls were made by the adjuster in late November and early December. The proof of loss was received by the appellant in early January, 1990. Shortly thereafter the fire incident was featured on the television programme "Crime Stoppers". As result an anonymous message was received by the Royal Canadian Mounted Police resulting in an investigation of the respondents in relation to the intentional burning of the cottage. Mrs. J.L. gave the following statement to the R.C.M.P. upon being questioned about this matter. It is recited in the trial judge's decision as follows: We owned cottage with B.M. and L.M. and it was being broken into lot. We stopped going back because it was unknown what shape you would find it in. Lots of times we talked and made comments that we would be better off if they recked (sic) it or burnt it down. Sometime in June 1989 was having baby shower and we got talking and my sister Myrna Nicklsen (sic) was there. It was said by myself 'the cottage would be better off if it was burnt down'. believe that said something about $1,000.00 being worth it. There were other women who would have heard me say this. On July 1989 B.M. called me to say that the cottage was burnt down. didn't make any arrangements to have the cottage burnt. About two days later was driving down the road. My sister Myrna stopped me and said the camp burnt down. She said you know who did it. said no didn't know. She said you would pay if it burnt down. Don't be so crazy. She said that they had it done. Mike had it done. still said don't be so foolish. In couple of weeks Myrna called and asked if got the insurance money. told her no. She said you better hurry up and get it they want their money. said when get some money will give you some. After about two weeks got the insurance money. went to Myrna Nickerson (sic) house with $1,000 in cash that took from the bank. It was the Toronto Dominion in Clayton Park next to MacDonalds. Myrna and Mike were in the house. Mike was on the chesterfield and Myrna was standing in the livingroom. gave the $1,000.00 and this is all can give you. Mike said that we are dealing with the 13th tribe and if they don't get the second $1,000.00 they will beat L.M. and A.L. up. told them that L.M. and B.M. and A.L. knew nothing about that. couldn't ask them for $1,000.00. Mike said O.K. you only get $8,000 instead of $10,000.00. B.M. and L.M. get $10,000.00 as well. He told me that he had to pay the money to the 13th Tribe by 6:00 p.m. on Gottingen St in some window for them. didn't have time to go to the bank and was very upset. So wrote cheque to Myrna and they were going to run right in and cash it and make the payment. was very upset over this. believed that Mike meant every word because he knows those people. never have told B.M., L.M. and A.L. about Myrna and Mike." Mrs. J.L., Constable LaPierre and Mr. Lynds testified at trial. The learned trial judge made the following statement with respect to Mrs. J.L.'s evidence: Mrs. J.L.'s version of the events of her dealings with Mr. and Mrs. Nicholson appears to have remained consistent from the time of her statement given to Constable LaPierre up to and including her testimony at trial. have had portions of her discovery testimony tendered into evidence by the plaintiff. Her recounting of the events at discovery was consistent with the statement, although actually more detailed. Her testimony before me was consistent with the discovery evidence and her statement. Constable LaPierre said the evidence she gave in Provincial Court in the prosecution of Michael Nicholson was consistent with what he had understood her story to be. Mr. Lynds, despite the police investigation, and despite the full knowledge of the transactions between Mrs. J.L. and the Nicholsons, thought the leading probable cause of the fire was vandalism" ISSUES RAISED ON APPEAL The appellant raises four issues on appeal, all of which are inter‑related. They are set out in the appellant's factum as follows: 1. THAT the Learned Trial Judge erred in law in finding that Mrs. J.L. did not breach the statutory conditions of the Insurance Act by failing to make full disclosure to the Appellant; 2. THAT the Learned Trial Judge erred in failing to consider the Respondent's duty to make full disclosure under Statutory Condition 6(1)(b) of the Insurance Act; 3. THAT the Learned Trial Judge erred in the application of the doctrine of "good faith" to the facts as he found them; 4. THAT the Learned Trial Judge erred in finding that there was an extortion when there was no evidence before him on which he could make this finding." The learned trial judge found that Mrs. J.L. did not really believe that the Nicholsons had arranged the fire and therefore her failure to report the conversation with the Nicholsons to the adjuster did not amount to fraud or wilful false statement. The appellant asserts the trial judge's finding on this issue is inconsistent with the evidence. Statutory Conditions and are relevant: (1) Requirements after loss Upon the occurrence of any loss of or damage to the insured property, the insured shall, if such loss or damage is covered by the contract, in addition to observing the requirements of Condition 9, 10 and 11, (a) forthwith give notice thereof in writing to the insurer; (b) deliver as soon as practicable to the insurer proof of loss verified by statutory declaration, ... (ii) stating when and how the loss occurred, and if caused by fire or explosion due to ignition, how the fire or explosion originated, so far as the insured knows or believes. (iii) stating that the loss did not occur through any wilful act or neglect or the procurement, means or connivance of the insured, .. 7. Fraud Any fraud or wilfully false statement in statutory declaration in relation to any of the above particulars, shall vitiate the claim of the person making the declaration." have reviewed the evidence of Mrs. J.L. and in particular those passages relied on by the appellant as proof that Mrs. J.L. believed the Nicholsons arranged the fire. In my opinion Mrs. J.L.'s evidence does not indicate she believed the Nicholsons arranged the fire. It seems to me the evidence indicates that Mrs. J.L. did not know what to believe or what to do. Her sister was apparently involved in either arranging the fire or extorting money from her. The learned trial judge found that Mrs. J.L. was an unsophisticated person. He found that she had every reason to be afraid of her brother‑in‑law and accordingly afraid for her family situation. The evidence supports this finding. Mrs. J.L.'s discovery evidence was introduced at trial by the appellant. She was asked about the circumstances surrounding the payment to the Nicholsons. The following extract from the discovery tendered is relevant. Q. At the time that you gave them the cheque, you knew at that time that they has had something to do with the burning of the cottage? A. wasn't wasn't like, wasn't sure, like. was like, are they just getting money out of me or did they really do it. didn't know. But was just if had to give them all of what had, would've gave it to them just to get rid of them. Q. When you were receiving the insurance money, did you give any thought to telling the insurance company about these circumstances? A. thought about telling A.L.. thought about telling L.M.. thought about telling the insurance company. thought about telling the Police. ... Q. When Mr. Lynds was talking to you during those times and asked you to sign the Proof of Loss, did you think to tell him about the A. Yes. Q. —. conversation with Myrna? A. certainly did. thought to tell him. thought to tell A.L. every night we went to bed. thought to tell everybody Probably if it would have been stranger, would've not even have hesitated .. Q. You say that you wouldn't have had much trouble going to the Police or to the insurance company if it had've been stranger but because it was your sister, you had concerns? Yeah ..." The crucial part of the cross‑examination at trial which is relied on by the appellant is the following: Q. believe Mrs. J.L. that you think this is something the burning of this cottage is something which Mike is capable of? A. Yes, do and shouldn't answer that way because am judging him. know his character what he has done some things he would .. Q. And, when Myrna told you that it was they had arranged for the cottage to be burned? It was certainly something that was not beyond the realm of possibility that they had arranged for it to be burned? A. She didn't say they had arranged to have it done. She said, "We had it done". Those were her words. Q. And its something that they could have done? A. Oh, gosh, don't know, yes, they could have. don't know." In my opinion, particularly the last answer, shows state of mind that Mrs. J.L. really did not know whether to believe that her brother‑in‑law had arranged the fire or not. The learned trial judge was justified on the evidence in making the finding that Mrs. J.L. had not formed the belief that the Nicholsons had arranged to set the fire. The appellant also asserts that whether or not Mrs. J.L. believed the Nicholsons made the arrangements to have the cottage burned, Mrs. J.L. was in breach of Statutory Condition 6(1)(b)(ii) because she did not provide the appellant insurer with particulars of how the loss occurred insofar as she knew. The appellant asserts that the only knowledge Mrs. J.L. had at the time the insurance proceeds were paid was that the fire had been arranged by the Nicholsons and she did not disclose this knowledge at the time of payment or in the proof of loss that was subsequently filed. The appellant asserts that this failure on Mrs. J.L.'s part constitutes fraud or wilful false statement and that coverage under the policy was therefore vitiated pursuant to Statutory Condition 7. The proof of loss form provided to Mrs. J.L. by the appellant's adjuster did not contain any provisions which required the insured's to state how the fire originated so far as the insured knew or believed. In short, the language of Statutory Condition 6(1)(b)(ii) was not reproduced on the proof of loss form. The proof of loss signed by the respondents on the completed form provided by the adjuster contained the following statement: TIME AND ORIGIN: loss occurred on the day of July, 1989, at m. caused by fire." Under the heading Insurance and Loss the printed form of the proof of loss states: particular account of the loss is attached hereto and forms part of this proof." No account of the loss was attached to the proof. There is not a false statement in the proof of loss. It thus remains to determine if the failure to disclose the conversations with her sister was fraud such as to vitiate the insurance coverage. On the facts of this case Mrs. J.L.'s silence in the face of her uncertainty whether or not her brother‑in‑law had anything to do with the fire is not fraud. Counsel for the appellant has not referred us to single case where fraud has been found in similar circumstances. Fraud generally means the use of false representation to gain an unjust advantage. Fraud is not easily defined. The classic definition of fraud is found in the judgment of Buckley, J., in Re London And Globe Finance Corp. Ltd, [1903] Ch. 728 at pp 732‑3: To defraud is to deprive by deceit: it is by deceit to induce man to act to his injury. More tersely it may be put, that to deceive is by falsehood to induce state of mind; to defraud is by deceit to induce course of action." In Scott v. Metropolitan Police Commissioner (1974), 60 Cr. App. R. 124 (H.L.) it was held that this definition is not exhaustive and that to "defraud" ordinarily means: "to deprive person dishonestly of something which is his or of something to which he is or would or might but for the perpetration of the fraud, be entitled." It is clear that even if Mrs. J.L. had told the appellant of the possibility that the Nicholsons arranged the fire the respondents would have been entitled to payment of the loss under the fire policy. The failure of Mrs. J.L. to advise Mr. Lynds of the discussions with the Nicholsons did not cause the appellant to pay the $20,000.00 which but for the failure to disclose, the appellant would not have had to pay. The respondents were not involved in the arson and made no false statements in the proof of loss or otherwise nor was there fraud. In my opinion the learned trial judge did not err in concluding that Mrs. J.L. did not commit fraud or make wilfully false statement in the proof of loss. The learned trial judge was not in error in concluding her coverage was not vitiated pursuant to the statutory conditions as there was no breach of the conditions. The appellant finally asserts the trial judge erred in the application of the doctrine of good faith to the facts as he found them. The appellant submits that regardless of whether or not there was breach of the statutory condition, there is duty on the insured to make full disclosure of all of the circumstances of this case. He relies on the following statement in Holland v. Marsh McLennan Limited (1979), 29 N.S.R. (2d) 622 at pp. 624 and 625 where Mr. Justice Jones cites from Ivamy, General Principles of Insurance, Second Edition, at p. 360, which states, in part, that the claim which an insured puts forward: "must be honestly made, and if it is fraudulent, he will forfeit all benefit under the policy whether there is condition to that effect or not. The insured must make full disclosure of the circumstances of the case. [Emphasis Added]" As to whether or not Mrs. J.L. had duty to disclose what she had been told about the possible cause of the fire pursuant to the concept of uberrima fides there are conflicting authorities. In Tumbers Video Ltd.. v. INA Insurance Co. of Canada (1991), C.I.L.R. 282 Hollinrake of the British Columbia Court of Appeal stated: The concept of uberrima fides comes into play in an insurance setting at the time of the formation of the contract of insurance. It plays no part when it comes to an allegation of fraud in the proof of loss." In the Tumbers Video case there was an express statement that was false. It was not failure to disclose that was in issue. The statement made by the British Columbia Court of Appeal in that case was contrary to statement made by the same court in the earlier case of Anastasov v. Halifax Insurance Co., [1987] L.R. 8678. In that case proof of loss had not been filed but the insured made false statements that certain items had been replaced. The court held that the common law of fraud had not been replaced by Statutory Condition 7. McFarlane J.A. stated: The fraud or wilful misstatement which will vitiate the claim is placed by statutory condition on narrow basis, but it is statutory recognition, in my opinion, of wider rule that the utmost good faith is fundamental to every insurance policy and that fraud on the part of the insured will vitiate the policy." Again would note that this case can be distinguished from the facts of the present as there was an expressed and false statement that had been made. Although the decision would render the doctrine of good faith applicable to the claim stage of an insurance contact, the court did not explicitly address the issue of duty to disclose. Mrs. J.L. was not questioned directly as to the cause of the fire. Her alleged failure was that she did not volunteer information she had when her husband was being questioned by Mr. Lynds. In my opinion an omission such as Mrs. J.L.'s should not at common law vitiate the claim; it was not fraud. would also note that there was no allegation in the statement of claim of lack of good faith on the insured's part such as to vitiate the coverage; nor was it identified as one of the issues by the trial judge. Counsel for the appellant has not provided us with any case law that silence not amounting in the circumstances to fraud constitutes breach of statutory condition or or amounts to breach of the doctrine of good faith at the claims stage. would not be prepared to go as far as the appellant's counsel urges us. It is quite apparent on the facts of this case as found by the trial judge that Mrs. J.L. had nothing to do with the setting of the fire and her silence as to what she had been told by her sister on the facts is quite understandable and does not equate with fraud. THE EXTORTION ISSUE The appellant asserts that the learned trial judge erred in finding that there was extortion when there was no evidence before him on which he could make this finding. disagree; there was ample evidence from Mrs. J.L. on this issue. There is one additional point that should be mentioned. The appellant insurer has relied in its factum on the statutory conditions as basis for its claim. There is authority suggesting that statutory condition which is not endorsed upon the policy cannot he relied on. (Lowy v. Eaton/Bay Insurance Co (1987), 26 C.C.L.I. 21 (Alta. C.A.)). The condition at issue in that case was limitation period. The Alberta Insurance Act contains provision identical to s. 167(2) of our Act which states: The conditions set forth in the Schedule to this Part shall be deemed to be part of every contract and shall he printed on every policy... (Emphasis Added) The court relied on previous decision of the Alberta Court of Appeal in North Lethbridge Garage Ltd. v. Continental Casualty Co. ,1930 CanLII 265 (AB CA), [1930] W.W.R. 491, which stated that statutory condition to be valid must be endorsed on the policy. The copy of the policy introduced in evidence and reproduced in the Appeal Book in the appeal we have under consideration does not include as part of the policy the Statutory Conditions. CONCLUSION In summary, the learned trial judge found that Mrs. J.L. did not conspire with the Nicholsons to have the cottage burned. The evidence is clear that Mrs. J.L. did not know whether or not to believe that the Nicholsons had arranged for the cottage to be burned. It is clear from a review of the proof of loss that Mrs. J.L. did not make a false statement; the proof simply states the loss was caused by fire. If the insurers expect an insured to comply with Statutory Condition 6(1)(b)(ii) with respect to advising the insurer as to the origin of fire so far as the insureds know or believe, insurers ought to reproduce the statutory conditions in the policy and provide question on the form of proof of loss to that effect. The appellant has failed to satisfy me that the learned trial judge erred in finding Mrs. J.L. did not breach Statutory Condition 6. The appellant did not commit a fraud in obtaining payment under the policy; she made no wilfully false statement to Mr. Lynds. By remaining silent with respect to the conversation she had with her sister she did not breach the duty of an insured to act in good faith even if that duty extends to the claim stage. The appeal is dismissed with costs of $1,200.00. J.A. Concurred in: Chipman, J.A. Freeman, J.A. CANADA PROVINCE OF NOVA SCOTIA 1991 S.H. No. 72855 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION on appeal from the SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: CANADIAN GENERAL INSURANCE COMPANY, body and A.L., J.L., L.M.and B.M. DEFENDANTS HEARD BEFORE: The Honourable Mr. Justice Gruchy PLACE HEARD: Halifax, Nova Scotia DATE HEARD: September 17, 1991 COUNSEL: David P.S. Farrar, Esq., for the plaintiff W. Dale Dunlop, Esq., for J.L. S.C.A. No. 02569 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION BETWEEN: CANADIAN GENERAL INSURANCE COMPANY, body corporate and A.L., J. L., L. M., and B.M. Respondents REASONS FOR JUDGMENT BY: HALLETT J.A.

The appellant insurer appealed a decision dismissing its claim that the respondent conspired with her sister and brother-in-law to have her cottage intentionally burned. The appellant asserted the respondent acted fraudulently by failing to make full disclosure of the facts surrounding the cause of loss. Dismissing the appeal, that the respondent did not wilfully make any false statement, and answered all questions as required on the documents provided. Her silence in the face of uncertainty over her in-laws involvement in the fire did not constitute fraud. If the appellant expects an insured to comply with statutory conditions, it must reproduce them in the policy and provide a question on the proof of loss form to that effect.

c_1992canlii2468.txt

J. 2003 SKQB 93 No. 8751 IN THE QUEEN’S BENCH PROVINCE OF SASKATCHEWAN IN BANKRUPTCY AND INSOLVENCY IN THE MATTER OF THE PROPOSAL OF W.R.T. EQUIPMENT LTD., AN INSOLVENT PERSON AND IN THE MATTER OF AN APPLICATION BY THE TRUSTEE OF THE PROPOSAL OF W.R.T. EQUIPMENT LTD. FOR COURT APPROVAL PURSUANT TO SECTION 58 OF THE BANKRUPTCY AND INSOLVENCY ACT, R.S.C. 1985, c. B-3. Jeffrey M. Lee for W.R.T. Equipment Ltd., an insolvent person M. Kim Anderson for Precismeca Ltd., an unsecured creditor Eldon Tilk representing himself, an unsecured creditor Jeffrey W. Pinder Trustee for the Proposal of W.R.T. Equipment Ltd. JUDGMENT ZARZECZNY J. February 27, 2003 [1] W.R.T. Equipment Ltd. (“W.R.T.” or the “Company”) applies for an order granting court approval of a proposal made by it to its creditor (the “W.R.T. Proposal” or “Proposal”) pursuant to Part III of Division I of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (the “BIA”). [2] Section 59 of the BIA governs applications for approval of an insolvent person’s Proposal under the BIA and it provides as follows: (1) The court shall, before approving the proposal, hear report of the trustee in the prescribed form respecting the terms thereof and the conduct of the debtor, and, in addition, shall hear the trustee, the debtor, the person making the proposal, any opposing, objecting or dissenting creditor and such further evidence as the court may require. (2) Where the court is of the opinion that the terms of the proposal are not reasonable or are not calculated to benefit the general body of creditors, the court shall refuse to approve the proposal, and the court may refuse to approve the proposal whenever it is established that the debtor has committed any one of the offences mentioned in sections 198 to 200. [3] Mr. Jeffrey Pinder, chartered insolvency and restructuring practitioner and principal of the firm, Jeffrey Pinder Associates Inc., trustee licensed in bankruptcy pursuant to the BIA has been appointed by the Company to act as trustee of its Proposal (the “Trustee”). Since filing the Proposal with the Official Receiver for the Saskatoon Bankruptcy District on November 12, 2002, two meetings of the creditors were held on December 3, 2002 and December 17, 2002. At the December meeting approximately 93 percent of W.R.T.’s creditors who had proven claims voted in favour of accepting the Proposal. The meeting of creditors was adjourned to December 17 to allow certain questions raised by the creditors at the December meeting to be further investigated and to permit examination of the director of the Company. At the reconvened December 17, 2002 meeting approximately 89 percent of the creditors voted in favour of acceptance of the Proposal. [4] On January 13, 2003 the Trustee made an application to the Registrar in Bankruptcy for court approval of the Proposal. Notice of Objection to this application was filed on behalf of an unsecured creditor, Mr. Eldon Tilk, which necessitated the Proposal being referred to judge of this Court in Bankruptcy Insolvency for court approval. [5] Mr. Tilk is a former 28-year employee of the Company. The Company was bound by the terms of collective bargaining agreement applicable to certain of its production employees including Mr. Tilk. Under the agreement the Company and employees agreed to fund pension plan. Because of the Company’s financial difficulties (ultimately leading to these proceedings under the BIA) steps were taken by the Superintendent of Pensions for Saskatchewan to transfer the pension plan out of the Company’s hands which has now been done. new plan administrator has been appointed. [6] It is common ground that although the Company made all of its regular required contributions to this pension plan as of the date of its transfer significant unfunded liability existed determined to be $156,249.00. Under the terms of the collective agreement any such deficiency was the responsibility of the Company. Insofar as its impact upon Mr. Tilk is concerned it left deficiency in his pension plan of $18,834.00. [7] Mr. Tilk objects to the requested court approval of the Proposal on the following grounds:(1) that the pension plan members should be treated as a different class of creditor than the unsecured creditor classification ascribed to them by the Proposal;(2) that the indemnification of past directors etc. proposed by the terms of the Proposal is inappropriately wide. [8] The applicant Company and the Trustee accept that the terms of the indemnity set out in the Proposal with respect to present and past officers and directors etc. is too widely cast and inappropriate. In other words the proponents are in agreement with the second ground of Mr. Tilk’s objection and they accede to an amendment of the Proposal on this basis as clerical amendment. Apparently this clause may well have been somewhat of “boiler plate” not appropriately inserted into the terms of this Proposal. [9] Since there will be no prejudice to the creditors in accepting and treating it as such the Court authorizes the amendment of the Proposal as set out in the revised para. of the draft order filed upon this application pursuant to Rule 92 of the BIA Rules (see Re Cosmic Adventures Halifax Inc. (1999), 1999 CanLII 1844 (NS SC), 13 C.B.R. (4th) 22 (N.S.S.C.)). In the result the proposed amended para. 9.1 of the W.R.T. Proposal is now consistent with the provisions of ss. 50(13) of the BIA and it is ordered accordingly. [10] The Court now turns its attention to the more substantive basis upon which Mr. Tilk opposes court approval of the applicant’s Proposal namely; that members of the employee pension plan who have been classified unsecured creditors (by virtue of the Company’s indebtedness for the unfunded portion of their pension plans) should be reclassified in some other category of creditor. Mr. Tilk proposes separate class with an enhanced recovery over and above the approximately 0.275 cents on the dollar which unsecured creditors whose claims exceed $1,500.00 are expected to receive under the Proposal. It should be noted at this point that there are 15 employees in the same position as Mr. Tilk; 12 voted in favour of the Proposal, 2 failed to file proofs of their claims and 1, Mr. Tilk, opposes. [11] Mr. Tilk submits that the unfunded pension liabilities constitute trust funds pursuant to provincial pensions legislation (s. 43(3) of The Pension Benefits Act, 1992, S.S. 1992, c. P-6.001). As such the pension fund claimants are entitled to preferred or secured creditor status and this should be recognized in the Proposal. [12] The Court is much in sympathy with the concerns which Mr. Tilk has raised by his objection and the submissions made on his behalf at the hearing of this application. Absent the application of the provisions of the BIA to an employer it is clear that an employer’s indebtedness to an employee pension plan does give the pensioners preferred creditor status by virtue of s. 43(3) of The Pension Benefits Act, 1992. With the intervention of the BIA, and proceedings under that Act, including the presentation of Proposal, combination of s. 66(1) and s. 67(2) of the Act as judicially interpreted results in another conclusion (see Continental Casualty Co. et al. v. Macleod-Stedman Inc. (1996), 1996 CanLII 12432 (MB CA), 141 D.L.R. (4th) 36 (Man. C.A.); Husky Oil Operations Ltd. v. M.N.R. (1995), 1995 CanLII 69 (SCC), 128 D.L.R. (4th) (S.C.C.)). Provincially created statutory trusts, such as the one created by The Pension Benefits Act, 1992 are not recognized in bankruptcy, including Proposals submitted under the BIA. [13] That is the legal position in which Mr. Tilk and his fellow pensioners find themselves in the face of this Proposal and the provisions of the BIA. The Trustee and the Company acted appropriately in identifying the nature and status of the pensioners’ claims. The specific objection raised by Mr. Tilk, although it might have reflected the status of his claim against the employer outside of the BIA, does not constitute a valid ground of legal objection to the Proposal made pursuant to the BIA. [14] The Court is satisfied that the evidence presented overwhelmingly supports the conclusion that the unsecured creditors will do better under the applicant’s Proposal than they stand to do if the Proposal is rejected by this Court. If rejected the applicant is placed into bankruptcy by virtue of the BIA. It is noteworthy that at present 89 percent of all creditors have reached the same apparent conclusion in voting in favour of acceptance of the Proposal. [15] This Court’s obligation under s. 59(2) of the BIA is to consider whether the Proposal is reasonable and calculated to benefit the general body of creditors. Decisions interpreting this provision have established the proposition that determining whether or not proposal is reasonable means that proposal must have reasonable possibility of being successfully completed in accordance with its terms (see Re McNamara and McNamara (1984), 53 C.B.R. (N.S.) 240 (Ont. S.C.)). [16] The function of the Court when called upon to approve proposal is to take into account several interests including; (a) that of the debtor (to give him an opportunity to meet with his creditors and to find way of producing assets or revenue which will provide them with dividend outside of bankruptcy), (b) the general body of creditors (to protect creditors generally by insuring that what is put up by way of proposal is reasonable one), and (c) the public-at-large in maintaining the integrity of bankruptcy legislation (including considering whether or not the proposal complies with standards of commercial morality). (See Re Stone (1976), 22 C.B.R. (N.S.) 152 (Ont. S.C.); Re Sumner Co. (1984) Ltd. (1987), 64 C.B.R. (N.S.) 218 (N.B.Q.B.); Irving Oil Ltd. v. Noseworthy et al. (1982), 42 C.B.R. (N.S.) 302 (Nfld S.C.)). [17] Taking into account all of these interests the Court has concluded, in the circumstances reviewed and for the reasons outlined in this judgment, that the Proposal presented by W.R.T. does meet the statutory and judicial criteria for acceptance by this Court. Accordingly the Proposal is accepted and the draft order filed may issue including the amendment to para. 9.1 of the Proposal. [18] No costs are awarded for or against any of the parties each of whom shall assume their own costs of representation at the hearing.

The company applied for an order granting court approval of a proposal made by its creditor pursuant to Part III of the Bankruptcy and Insolvency Act. A former 28-year employee objected on the grounds pension plan members should be treated as a different class of creditor rather than under the unsecured creditor classification ascribed to them by the proposal; the indemnification of past directors under the terms of the proposal was inappropriately wide. He submitted the unfunded pension liabilities constitute trust funds pursuant to provincial pension legislation (the Pension Benefits Act s.43(3)) and as such the pension fund claimants are entitled to preferred or secured creditor status. HELD: The Proposal was accepted. 1)Provincially created statutory trusts such as the one created by the Pensions Benefits Act are not recognized in bankruptcy including Proposals submitted under the BIA. The Trustee and the company acted appropriately in identifying the nature and status of the pensioners' claims. Although it might have reflected the status of his claim against the employer outside the BIA, the specific objection did not constitute a valid ground of legal objection to the Proposal. 2)The Proposal met the statutory and judicial criteria for acceptance by the Court. The Court takes into account the interests of the debtor, general body of creditors and the public at large in maintaining the integrity of the bankruptcy legislation. Of the 15 employees in the same position, 12 voted in favour of the proposal, 2 failed to file proofs of their claims; 89 percent of all creditors voted in favour of acceptance. 3)Each party was to assume their own costs of the hearing.

3_2003skqb93.txt

SFHC 13237 IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: MCS v. B. M. 2004 NSSF 01 BETWEEN: MINISTER OF COMMUNITY SERVICES J.B. J.M. -RESPONDENTS Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on May 7, 2008. HEARD: At Halifax, Nova Scotia before The Honourable Justice Douglas C. Campbell on the 10th day of December, 2003. DECISION: December 10, 2003 (orally) COUNSEL: JAMES LEIPER, COUNSEL FOR THE MINISTER WILLIAM LEAHEY, COUNSEL FOR J.B. J.M., SELF-REPRESENTED CAMPBELL, J.,(orally): I have before me a motion in this case under the Children and Family Services Act, S.N.S. 1990. c.5 (which I will hereinafter refer to as the "Act") by which the mother asks for a dismissal of this matter on the basis that I have lost my jurisdiction to hear the case because the trial date is after the outside disposition date provided in the Act. Because the trial is scheduled to start tomorrow, have had no opportunity to reserve, other than for few hours. would have preferred to have expanded on my reasons. This case involves child protection proceeding in respect of child who was under the age of six when taken into care. There was delay in the proceeding for number of reasons. The primary child protection concerns that were being advanced and alleged by the agency were such that the original agency planning for the reunification of the mother and child required some psychological counselling for the mother and child. She made number of changes in the counselling providers over period of time and so initially great deal of time was lost in proceeding at least from the point of view of the agency's plan. Over time, reunification seemed probable; but that changed in the mind of the agency. By the time the agency began to formulate plan that called for permanent care with the agency, the matter was very near the outside deadline. In any event, there was good reason for the matter to be extended for trial beyond the date of the overall deadline which reasons were based on the best interests of the child. made decision on August 15th therefore to extend the time line for the trial in respect of the permanent care application to tomorrow's date. In doing so relied on the case of Children's Aid Society Family Services of Colchester County v. H.W., found at 1996, 155 N.S.R. 2d, 335 which Court of Appeal decision will hereinafter refer to as H.W. The Court of Appeal issued a decision, subsequent to my ruling, in October 2003 referred to as Nova Scotia (Minister of Community Service) v. B.F. at 2003 NSCA 119 (CanLII), 2003 N.S.J. 405 which I will hereinafter refer to as B.F. This morning, as mentioned, counsel for the mother made a motion that based on the rule in B.F. I had lost my jurisdiction and must dismiss the matter. Discussion was had as to whether there would be consent to the Minister's intention (assuming were to grant the motion) of an immediate reapprehension and consolidation of the various initial proceedings from interim hearing through protection finding and then to disposition in order to preserve the existing trial dates. Consent would not be forthcoming. In the H.W. decision the proceeding had been approaching the first disposition deadline under section 41(1) of the Act and the trial court extended the deadline so as to conduct the disposition hearing after that statutory deadline had passed. This was done after ruling that it was in the best interests of the child to do so. The Court of Appeal upheld that ruling and confirmed that the trial judge had not lost jurisdiction despite the fact that the Act uses the mandatory word "shall" in section 41(1). By contrast, in the B.F. case the trial court conducted and completed the trial within days of the overall statutory deadline and instead of following one of the only two options available under section 42(1) of the Act, [that is, termination order under 42(1)(a) or permanent care under 42(1)(f)], the Court granted further supervision order for period of six months with further extensive services to be in place. In H.W. the word “shall” was held to be directory thereby permitting the time line extension but in B.F. the word “shall” was held not to be directory thereby leaving no possibility of extending the time line resulting in loss of the Court's jurisdiction. In B.F. the Court of Appeal recognized the validity of its own decision in H.W. notwithstanding the opposite outcome in it. An analysis of how this can be so will determine the motion before me. If the case before me is on “all fours” with H.W., must continue; if it fits with B.F., must dismiss. Counsel for the mother distinguishes the two cases on the basis that H.W. involved the approval of the extension of the statutory deadline at stage that fell within the overall outside date that arrives after all the statutory stages are complete. B.F. he suggests stands for the proposition that the extension of the final deadline in the Act can never be done. Counsel for the agency sees different distinction. He suggests that H.W. allows the extension of deadline in order to conduct trial that will determine based on the best interests of the children, which of the dispositions available to the Court should be applied. B.F. on the other hand merely disallows the making of an order after the trial wherein that best interest has been determined if that order would operate beyond any given statutory deadline. propose reviewing the decision of the Court of Appeal in the B.F. case to determine which, if either, method of distinction appears to have been intended. Before doing so, will digress to speak about some of the policy issues that may assist in understanding the decision in B.F. Subsections (1) and (2) of the Act indicate that the purpose of the Act is to protect children from harm, promote the integrity of the family and ensure the best interests of the children. Subsection mandates that in all proceedings in matters pursuant to the Act the paramount consideration is the best interests of the child. It is normally possible to fully complete proceeding under the Act within the time lines that are set out. This Court has fundamental policy of following those guidelines whenever it is possible and of taking whatever exceptional steps are needed to achieve that compliance. It is only in the rarest of situations that the Court entertains an extension and then only when the best interests of the child demands. There can be many situations where the overall deadline is approaching at the time it becomes clear to the agency or to the Court in due course, that plan (such as reunification) once thought to be impossible is possible (or vice versa) but only with the use of an additional amount of time that would not prejudice the child's interest but would nonetheless go beyond the deadline. Without the power to extend deadlines, the court would be faced with the dilemma of either taking the drastic step of permanent care thereby separating the child permanently from his or her natural parents or returning the child at time when the child welfare issues had not fully and safely resolved. In some cases, neither course would be justified. If time line extensions can never be given in those rare cases, the Court has only one remedy and it is very rough one, not always the best one. That remedy would be terminate the proceeding because of the deadline, hoping that the agency would reapprehend in order to offer the needed protection and pursue the primary and ultimate goal of reuniting the child with the parents. That remedy is rough one for at least two reasons. First, the Court cannot order the agency to reapprehend. Although the protection concerns may have been insufficient to justify an order for permanent care, they nonetheless may require intervention by the agency. Nonetheless, the Court can do no more than recommend reapprehension. Second, and more important, reapprehension will expose the child to the very delay the deadlines are designed to avoid since each of the stages set out in the Act (interim hearing, protection finding and at least one disposition hearing) will have to run their course, in the absence of consent to consolidation under Section 40(2) of the Act. When the plan of care changes from reunification to permanent care close to the particular deadline, it is not in a child’s best interest for a rushed trial date. There may be need for the preparation of expert reports and other trial preparation and to ascertain whether ongoing further services would have resolved the problem. The child’s best interests demands an opportunity for these events to occur unless the delay is of greater detriment to the child’s interest. While section 42(4) of the Act requires that permanent care order shall not be made 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”, it does not follow that when the circumstances are likely to change so as to allow the return of the child to the parent within reasonably foreseeable time that the Court must deny the child that opportunity because extension of time is required. Implicit in the fact that the various statutory guidelines were provided in the Act is the legislature’s intended desire to balance the need for swift resolution resulting either in reunification of the child and the parents or some other form of permanent care planning against the need to allow enough time for the child welfare issues to be resolved through services. system which insisted on very short deadlines might permanently separate child from parents inappropriately. On the other hand, an indefinite and/or lengthy time frame could become the child welfare issue in and of itself as the child bonds with temporary care givers. Given the philosophy of the Act which is based on the best interests of the child and given the fact that deadlines can ultimately be overcome by termination of the proceeding and reapprehension by the agency and given that there will be rare and exceptional circumstances where time extension is preferable to reapprehension, the legislature must not be taken to have intended that there can never be an extension of the overall deadline given by the Act (or any other deadline in the Act, for that matter). In my opinion, the fact of opposite outcomes reached by the Court of Appeal in H.W. and B.F. respectively confirms the recognition by the Court of Appeal of that interpretation of the legislature’s intention; otherwise, it would have overruled its decision in H.W. or else expressly stated that extensions are permissible for deadlines within the proceeding but not with respect to the final overall deadline. Turning to the B.F. decision, will refer to paragraph numbers because do not yet have copy of this recent decision that would give me page numbers from any of the reporting services. Paragraph 55 of Justice Fichaud's decisions says: "In H.W. the time limit preceded the disposition order. If as argued to the Court in H.W. the Family Court lost jurisdiction after the passage of the time limit there would be no decision to determine the best interests of the child. The agency might have to reapprehend to start the time limits anew." Now emphasize from that passage the words, “the time limit preceded the disposition order” In that case, it happened to be the first disposition order. It is to be noted that the Court, in that passage, is approving of the notion that the time limit can be extended in order to conduct the trial. In paragraph 56 the Court states and quote: "In J.M.M.[Family Children's Services of Annapolis County v. J.M.M. L.M. 1997 161 N.S.R. 2d 63 of the Court of Appeal] as fair determination of the issues on the interim required the taking of evidence beyond the five day limit, it was consistent with the rule of law and the best interests of the child that the five day limit be treated as directory. The Family Court did not lose jurisdiction after the five days passed." Again the Court of Appeal is approving the notion that time limits can be extended in order to conduct the trial, in this case at the interim stage. Paragraph 57 states and quote: "The Act clearly contemplates judicial determination of the child's best interests. If passage of time limit which is milestone toward the trial caused the Court to lose jurisdiction to determine the child's best interest this would contradict the object of the Act." From that passage, the Court of Appeal is again underlining that as the trial date approached, time limits need to be extended in order to meet the object of the Act when the best interest requires it and when the proceeding is moving toward hearing which is designed to decide the overall best interests of the child and therefore the type of disposition order that should best protect the child's interests. The theme from all three passages is the same. Paragraph 58 the Court of Appeal states, referring to the above principle in those cases, and quote: "This principle does not apply to time limit which governs the contents of the order after the trial." interpret the Court to be making it very clear in that passage, that it is impossible to make an order after the trial if that order would operate beyond the time limits of the statute. If Court attempts to make an order after trial that operates beyond any statutory time deadline, an error of law is thereby made and jurisdiction is lost. In paragraph 66 the Court states and quote: "From these passages it is clear that the maximum time periods to be written in disposition orders are not directory items. They are important components of the scheme and object of the Act and the intention of the legislature as discussed in L.L.P." careful reading of that passage requires the emphasis to be placed on the words, "to be written in disposition orders". Again, the Court is confirming that when time limits are passed in orders that follow the trial they are not directory and they offend the legislation and represent an error of law. This is so only when extensions are included in an order that follows the trial. At paragraph 68 the Court says and quote: "By issuing continued supervision order which bypassed the time limit under section 43(4) the Family Court committed an error of law." Again the Court is emphasizing that it is the issuing of an order after trial that offends the concept of extending time limits. In summary, the H.W. case stands for the following principle: when the best interests of the child requires it, an extension of a deadline to make a determination at the then stage of the proceeding by trial or otherwise is acceptable and no loss of jurisdiction occurs. In my opinion, the B.F. case stands for the following proposition: once the determination at a particular stage of the proceeding is made at trial or otherwise, and with the exception of reserving the Court’s decision, no order can have effect beyond the statutory deadline. When that occurs at the overall deadline, the only options are dismissal and permanent care, as stated in Section 42 of the Act. In the H.W. case, the trial court, based on the best interests of the children, extended the statutory deadline for the first disposition hearing and then conducted the trial which gave one of the dispositions authorized by Section 42 of the Act which disposition was to be reviewed within the statutory deadlines. Jurisdiction was not lost. In the B.F. case, the trial court conducted the trial prior to the statutory overall deadline and, with 13 days left within which to implement its jurisdiction, made disposition order purporting to last months. The trial court could have made such an order for the 13 days remaining; but because the order was to last beyond that 13th day, it acted without jurisdiction. To reconcile the H.W. decision with the B.F. decision on the basis argued above by counsel for the mother would be to ignore the distinction relied upon by the Court of Appeal. In the present case, granted the time extension to the trial date. The trial has not yet been conducted. The best interests of the child has not yet been determined. The appropriate disposition has not been determined and after the trial, will have only two options under this statute and they are to terminate the proceedings or to make permanent care order. Any attempt after the trial to make continued intervention order of any type would not be possible in my view. In conclusion, the Court has not lost its jurisdiction in this matter and the trial will commence tomorrow. Campbell, J.

The mother moved for the dismissal of the pending permanent care trial, arguing that, applying the reasoning in a recent Court of Appeal decision, the court had lost jurisdiction. No trial had been held on any issue as all matters had proceeded to this point with the consent of the parties. The time for trial had been extended to allow the mother to retain counsel. Application dismissed; the court had not lost jurisdiction; trial to proceed. The Court of Appeal decision stands for the proposition that, once a trial at any stage of the Act is held, no order can have effect beyond the next statutory deadline; however, this is so only when the extensions are included in an order which follows trial. When the best interests of the child require it, an extension of a statutory deadline can be made in order to have a trial completed in respect of any stage of the Act. When the plan of care changes from reunification to permanent care close to the particular deadline, it is not in a child's best interest for the court to order a rushed trial date.

3_2003canlii64101.txt

PLEASE NOTE: THERE IS PUBLICATION BAN ON THIS JUDGMENT PURSUANT TO S. 517 OF THE CRIMINAL CODE 47 Q.B.B.A. A.D. 2001 No. J.C. R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA and HER MAJESTY THE QUEEN RESPONDENT Kevin A. Lang for [A.R.S.] Marylynne T. Beaton for the Crown JUDGMENT GUNN J. January 26, 2001 [1] [A.R.S.] stands charged with the second degree murder of [D.M.] and the second degree murder of [B.J.S.]. Both charges arise out of an incident occurring at the [location] First Nation on December 29, 2000 at the home of [D.M.]. [2] The events of December 28 and 29, 2000 were described by counsel for [A.R.S.] and by counsel for the Crown in oral submissions to the Court. It was agreed by the parties that counsel's submissions should be accepted by the Court without the necessity of either party calling evidence concerning the circumstances of the alleged offences. It was acknowledged by counsel that this should be done even in the face of conflicting views with respect to the facts. [3] It does not appear to be in issue that on December 28, 2000 [A.S.], [G.S.], [C.D.], [G.I.] and [D.M.] were gathered at residence on the [location] First Nation for social visit. Alcohol was being consumed by some or all of those present. Later that evening, [B.S.], [A.R.S.]'s father picked up these individuals and at the request of [D.M.], drove them to [location] where [D.M.] purchased some beer. [B.S.] then drove everyone to [D.M.]'s house and dropped them off. Some time later [B.J.S.] arrived at [D.M.]'s home. [4] At this point the positions of the parties diverge. [A.R.S.] submits that [D.M.] was very intoxicated and that Mr. [D.M.] became very aggressive towards him. When [A.R.S.] attempted to call his father [B.S.] for help, Mr. [D.M.] ripped the phone out of his hand. When [A.R.S.] ultimately made contact with his father, Mr. [D.M.] ripped the telephone cord out of the wall. [5] After receiving the call from his son, [B.S.] hurried to the [D.M.] residence which was nearby. He heard gun shot while en route. [6] [A.R.S.] submits that [D.M.] had gone to his bedroom and brought out rifle. [A.R.S.] says [D.M.] was aiming the rifle at him and/or at [C.D.]. [C.D.] started wrestling with [D.M.] to take the rifle from him and [A.R.S.] joined in. [A.R.S.] says both [D.M.] and [B.J.S.] also had knives which had been used to threaten [A.R.S.] and [C.D.] prior to and during this incident. During the scuffle, [A.R.S.] says the gun went off. In the Crown disclosure provided to counsel for [A.R.S.], [C.D.] provided statement supportive of [A.R.S.]' version of the events. With respect to [B.J.S.], [A.R.S.] says he and [D.M.] were found in the main hallway close to each other. It was unclear whether one or two shots had been fired, and if both men could have been killed by the same shot. [7] The Crown submits that although its investigation is still ongoing, it takes issue with the facts presented by [A.R.S.]. The Crown submits that the forensic reports it has received to date are not consistent with the version of the events suggested by [A.R.S.]. The Crown says the forensic reports do not support an allegation that the gun discharged in the course of struggle. The Crown says as there was no gun residue on either of the bodies, the gun must have been 18" to 24" away when discharged. The Crown further submits that [B.J.S.] was killed first, then [D.M.] [8] The onus is on the accused to show cause why his detention in custody is not justified pursuant to s. 515(10) of the Criminal Code. Section 515(10) now permits detention on three grounds: (a) to ensure attendance; (b) to protect the public and the administration of justice; (c) to answer to "any other just cause" including maintenance of "confidence in the administration of justice" having regard for all the circumstances including: (i) the apparent strength of the prosecution's case; (ii) the gravity of the nature of the offence; (iii) the circumstances surrounding the commission of the offence; and (iv) the potential for lengthy term of imprisonment. (R. v. Blind (2000), 1999 CanLII 12305 (SK CA), 180 Sask. R. 145 (Sask. C.A.)) [9] [A.R.S.] is eighteen years of age. He lives with his parents [B.S.] and [C.S.] and his three siblings on the [location] First Nation. [A.R.S.] was attending [name] Community Educational Centre completing two credits for his grade ten and was also taking classes for his grade eleven. The Vice Principal filed letter with the Court indicating that [A.R.S.] attended school regularly and put reasonable effort into his studies. Ms. Adams said "[A.R.S.]'s pleasant attitude, cooperative behaviour and sense of humour were welcome pleasure in all of his classes." [10] Prior to attending [name], [A.R.S.] attended [location] High School. Sandy Emke-Kish, the Vice Principal of [location] High School also filed letter in support of [A.R.S.] indicating that [A.R.S.] was positive and visible person who followed the school rules. [11] [A.R.S.] has been extensively involved in sports. He has participated in the Saskatchewan Winter Games participating in hockey and badminton and the Summer and Provincial Games playing baseball. He has also attended the North American Indigenous Games. [12] He placed first for poetry at local Arts Festival. He presented paper at the "Stayin' Alive Youth Conference" in Yorkton in March of 2000. He was chosen as role model for the Yorkton District Healthy Choices Conference. He has worked extensively with his father at the community pasture. [13] [A.R.S.]'s previous record consists of charge of mischief for which he received discharge. He faces two outstanding charges, as young offender arising out of house party in October 1999. [A.R.S.] was charged with assault causing bodily harm and assault with weapon, to wit beer bottle. [14] The Crown opposes [A.R.S.]'s release on the ground that his detention is necessary in order to maintain confidence in the administration of justice. [15] I am not satisfied that the detention of the accused is necessary to ensure his attendance at court. [A.R.S.] has always lived with his family. [A.R.S.]'s father [B.S.] has managed the community pasture at [location] First Nation for 16 years. [A.R.S.]'s mother has worked as trust coordinator for 15 years for the [location] First Nation. Neither of [A.R.S.]'s parents have criminal records. [A.R.S.] has always been involved in school, sports and community activities. He has strong roots in the community which is evidenced by his history at [location] First Nation, and by the letters and affidavits of support filed by relatives and friends from the [location] First Nation. [16] I am not satisfied that the detention of the accused is necessary for the protection or safety of the public. Generally bail is denied only for those who "pose substantial likelihood of committing an offence or interfering with the administration of justice" (R. v. Morales (1992), 1992 CanLII 53 (SCC), 77 C.C.C. (3d) 91 (S.C.C.) at 107). There is no evidence that [A.R.S.] poses a substantial likelihood of committing further offences or that he will, if released, interfere with the administration of justice. [17] The question remains whether there is any other "just cause" whereby detention of the accused is necessary to maintain confidence in the administration of justice. In R. v. Blind, supra, Jackson J.A. considered Parliament's intention when sub-section (c) was added to s. 515 (10) in 1997. Madam Justice Jackson concluded that in order to detain an accused prior to trial pursuant to this section, the court must find "just cause" to do so. Justice Jackson said the following at para 13: ... In applying this clause it is not sufficient, as was done in this case, to find the Crown has strong case, that the offence charged is extremely grave, and that potentially lengthy term of imprisonment is in the offing, or, indeed, to list circumstances which could describe any violent crime. More is required. The clause poses the ultimate question, in case such as this, of whether in all of the circumstances, not just the circumstances surrounding the commission of the offence, detention is necessary to maintain confidence in the administration of justice. [18] Madam Justice Jackson in the Blind decision, referred to R. v. Nguyen (Y.V.) (1997), 1997 CanLII 10835 (BC CA), 119 C.C.C. (3d) 269 (B.C.C.A.) where it was held at para 22: ... An important consideration is whether the violence occurred in circumstances of malevolent rather than foolish or spontaneous intent. It is important to consider whether the applicant is person prone to violence or cruelty or whether she or he became caught up in circumstances where awful things sometimes happen. Without stating any rule which can be applied to every case, it is my view that detention pending appeal will not always be necessary for young men or women fighting on Saturday night, even though awful consequences sometimes result. [19] The Crown has indicated that these events have divided the [location] First Nation. Clearly [A.R.S.] has significant support as evidenced by the many letters and affidavits filed on his behalf. The Chief and Council of the [location] First Nation have taken no position on the release of the accused due to the fact that both [A.R.S.] and one of the deceased, [B.J.S.] are members of their First Nation. [20] am satisfied in all of the circumstances that the continued detention of [A.R.S.] pending his trial cannot be justified under the law as laid down by Parliament in s. 515(10) of the Criminal Code. The accused will be released on his own undertaking on a set of strict conditions. The conditions are these: (1) He shall keep the peace and be of good behaviour. (2) He shall report to the court whenever required to do so by the court. (3) He shall report in person to the Intensive Probation Supervision/Electronic Monitoring Co-ordinator at 72 Smith Street East, Yorkton, Saskatchewan; SN3 2Y4, (306) 786-1475 within days of his release from custody and thereafter at dates and times specified by the Bail Supervision Officer. (4) He shall participate in the Electronic Monitoring Program, and shall comply with all Program rules. (5) He shall be confined to his residence and shall receive written permission from the IPSEM Co-ordinator, or his designate, to be absent from his residence. He shall provide the IPSEM co-ordinator, or his designate with information regarding his whereabouts. (6) He shall reside at residence with his mother in Yorkton, the address of that residence to be provided to the IPSEM Co-ordinator. (7) He shall immediately advise the IPSEM Co-ordinator, or his designate, of any changes in attendance at an educational facility, and/or any contact with police officials. (8) He shall abide by curfew and be in his residence from 11:00 p.m. to 6:00 a.m. daily unless given permission to be absent from his home by the IPSEM Co-ordinator. (9) He shall not attend at the [location] First Nation. (10) He shall abstain from the consumption and possession of non-prescription drugs and alcohol, and shall not enter any establishment the primary purpose of which is the sale of alcohol. (11) He shall have no contact, directly or indirectly with any prosecution witness as may be stipulated by the Crown in the order to be issued, except through member of the Law Society of Saskatchewan. (12) He shall abstain from owning, possessing or carrying any firearm, cross bow, or restricted weapon or prohibited weapon. (13) He shall attend school and/or take correspondence classes in order to continue with his education. (14) He shall provide breath and/or urine samples to any police officer upon reasonable request.

The 18 year old, charged with the second degree murder of two individuals, applied for release from custody. HELD: The accused was released on his own undertakings under a set of strict conditions, including participation in an electronic monitoring program. The onus is on the accused to show cause why his detention in custody is not justified. Criminal Code s.515(10) now permits detention on three grounds. His detention was not necessary to ensure his attendance at court nor for the protection or safety of the public. There was no evidence he posed a substantial likelihood of committing further offences or that he would interfere with the administration of justice if released. There was no other just cause, including maintenance of confidence in the administration of justice.

d_2001skqb47.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2005 SKQB 538 Date: 20051221 Docket: Q.B.G. No. 1820/2005 Judicial Centre: Saskatoon BETWEEN: 623936 SASKATCHEWAN LTD., Plaintiff (Defendant by Counterclaim) and NEW YORK TAXI CO. LTD., Defendant (Plaintiff by Counterclaim) and SHIRLEY SCOTT, Defendant by Counterclaim Counsel: Jason A. Peszko for the applicant George A. Green for the respondent FIAT DOVELL J. December 21, 2005 [1] The applicant defendant, New York Taxi Co. Ltd., seeks an order pursuant to s. 10 of The Attachment of Debts Act, R.S.S. 1978, c. A‑32, setting aside the plaintiff’s pre‑judgment garnishees in which $2,291.90 was paid into Court from the defendant’s bank account at Biggar and District Credit Union on December 7, 2005. [2] The issue is whether the plaintiff’s claim is a liquidated demand within the meaning of s. 3(1) of the Act, and if so, whether the affidavit of Shirley Scott, filed in support of the issuance of both of the pre‑judgment garnishees, complies with s. 3(2) of that Act. [3] This case involves pre‑judgment garnishee as opposed to garnishee after judgment taken out the same date as the statement of claim was issued, being November 14, 2005. [4] As stated by Baynton J. in Rolls‑Royce Canada Ltd. v. La Ronge Aviation Services Ltd. (1996), 1996 CanLII 7112 (SK QB), 143 Sask. R. 296 at para. (Q.B.): [3] It is trite law that plaintiff has statutory right to garnishee the defendant’s funds before the validity of the claim has been determined if the action is for debt or liquidated demand. But pre‑judgment garnishment is an extraordinary remedy and failure to strictly comply with the provisions of the Act goes to jurisdiction and renders the garnishee summons nullity. The Attachment of Debts Act, s. as interpreted by Reed Ford Tractor Sales Ltd. v. Todorowich, 1994 CanLII 4687 (SK CA), [1995] W.W.R. 259 at 261 (Sask. C.A.); Mumford Medland Limited v. Certified Concrete (Central) Limited and Royal Bank of Canada (1967), 1967 CanLII 432 (SK CA), 59 W.W.R. (N.S.) 378 (Sask. C.A.). [5] Before setting out its reasons for whether or not this application should be allowed, the Court first wants to clarify which materials it has considered in making its decision. The only materials considered by the Court in this application are the statement of claim and affidavit of Ms. Scott filed in support of the pre‑judgment garnishee. The Court has not considered any of the contents of the affidavit of Larry Robb, filed by the applicant, or the statement of defence and counterclaim. The reason for that is important. In an application to set aside pre‑judgment garnishee, the Court is not to consider potential defences to the action or the existence of triable issues as grounds for setting aside garnishee summons. Phoenix Rotary Equipment Ltd. v. Denis, 2004 SKQB 129 (CanLII), 246 Sask. R. 148. [6] In Conexus Credit Union v. Shec Labs‑Solar Hydrogen Energy Corp, 2005 SKCA 119 (CanLII), [2005] S.J. No. 627 (QL), Chief Justice Bayda, at paragraphs and 10, outlined the purposes of the various constituent subsections of s. of the Act as follows: ¶9 Subsection 3(1) lays the foundation (and prescribes the foundation’s limits) for the issuance of garnishee summons. summons may issue in two kinds of situations: (i) where person has obtained judgment or order for the recovery of money, and (ii) where plaintiff has not obtained judgment, but has commenced particular type of action for the recovery of money, namely, an action for debt or liquidated demand. No other type of action for the recovery of money qualifies. Nor, of course, does any action that is not for the recovery of money. ¶10 Subsection 3(2) requires the plaintiff or judgment creditor to file an affidavit before the local registrar is put in position to issue the summons. The purpose of the affidavit is fourfold: (i) to “show” the nature of the plaintiff’s claim or alternatively, the fact of an unpaid judgment. The underlying purpose of that “showing” is to establish whether the indebtedness claimed to be owing fits within the limits of the foundation laid down in s. 3(1), namely whether it is for an unpaid judgment or alternatively, claim for debt or liquidated demand and not an indebtedness that falls outside those limits; (ii) to “show” with precision the amount of the indebtedness owing on the judgment, the debt or the liquidated demand as the case may be. The need for “showing” the amount is obvious; (iii) to require the plaintiff or his/her agent to not merely allege that the indebtedness is owing but to formally attest to the existence of the indebtedness and thereby warrant, not only that the claim is genuine, but that it is not provisional or contingent; (iv) to identify some third party (the “garnishee”) who is alleged to owe money to the defendant that can be attached and applied to the payment of the indebtedness. [Emphasis added.] [7] The Court is satisfied that the statement of claim discloses prima facie claim for debt or liquidated damage pursuant to s. 3(1) and that the affidavit of Ms. Scott “shows” and “establishes” that the nature of the plaintiff’s claim fits within the limits of the foundation laid down in s. 3(1), being claim for debt or liquidated demand. [8] However, the Court’s analysis does not stop there. There are four purposes of the affidavit filed pursuant to s. 3(2) of the Act as outlined by Chief Justice Bayda in Conexus, supra. What is troubling to the Court is whether or not the content of the affidavit of Ms. Scott has shown with the required precision the amount of the debt or liquidated demand as the case may be, as outlined as the second purpose of the affidavit filed pursuant to s. 3(2) of the Act by Chief Justice Bayda. [9] The statement of claim, at paragraphs and 7, provides: 6. As per the Agreement and Amalgamation, the Plaintiff provided the Defendant managerial services and as of October 31, 2005, there existed debt due and owing from the Defendant to the Plaintiff in the amount of $24,155.94. 7. It was agreed by the Defendant and/or 101020738 Saskatchewan Ltd. that the indebtedness on such account would be subject to interest at the rate of 2.0% per month, compounded monthly. [10] The affidavit of Shirley Scott, in support of the pre‑judgment garnishee summons, attaches as exhibits copy of the Operating Agreement dated September 10, 2001, and copy of an invoice dated October 31, 2005. [11] Paragraph of Ms. Scott’s affidavit in support of the pre‑judgment garnishee summons provides: 4. That pursuant to the Agreement and Amalgamation, services were provided and debt became due and owing from New York Taxi Co. Ltd. to 623936 Saskatchewan Ltd. in the amount of Twenty‑Four Thousand, One Hundred and Fifty‑Five Dollars and Ninety‑Four Cents ($24,155.94). Attached hereto as Exhibit “C” to this my Affidavit is true copy of an invoice dated October 31, 2005. [12] Although there is reference in the statement of claim to an agreement that interest would be paid at 2.0 percent per month, compounded monthly, there is no mention of interest in the Operating Agreement of September 10, 2001. [13] Of more concern to the Court is the four‑page invoice dated October 31, 2005, attached to Ms. Scott’s affidavit as Exhibit “C”, supposedly attached to confirm the amount of debt owed by the defendant in the amount of $24,155.94. The invoice is vague and is of no assistance to the Court in clarifying the precise amount of the debt owing. On the first page of the invoice balance forward as at December 31, 2003, of $16,990.44 is indicated. Page of the invoice appears to be summary of pages and 3, and page 4, starting with balance forward as at December 31, 2003, of $6,420.00, has total amount due of $10,577.06. Is that additional debt? The Court is at complete loss. Unlike the information provided in the affidavit in Kuznitsoff v. Hilltop Ford Equipment Sales Ltd. (c.o.b. Hilltop Equipment Sales) (1998), 176 Sask. R. 293 (Q.B.), wherein the affidavit charted the alleged gross profits by listing the equipment, date of sale, model number, sale price, cost and gross profits on a line by line basis, the contents of Ms. Scott’s affidavit is severely deficient in showing with precision the amount of the indebtedness owing. [14] The Plaintiff has accordingly not strictly complied with the provisions of s. 3(2) of the Act, and the garnishee summons are a nullity. [15] There shall therefore be an order: 1. The garnishee summons shall be set aside, and if no appeal is taken, the funds paid into court will be repaid to the garnishee, Biggar and District Credit Union, to the credit of the defendant after the expiration of the time for appeal. 2. The applicant shall be entitled to costs of this application which the Court fixes at $500.00, payable within 30 days of this fiat. J. M.L. Dovell

FIAT: The applicant defendant seeks an order pursuant to s. 10 of The Attachment of Debts Act setting aside the plaintiff's pre-judgment garnishees in which $2,291.90 was paid into court from the defendant's bank account in December 2005. The issue is whether the plaintiff's claim is a liquidated demand within the meaning of s. 3(1) of the Act, and if so, whether the affidavit filed in support of the issuance of both of the pre-judgment garnishees complies with s. 3(2) of the Act. HELD: The plaintiff has not strictly complied with the provisions of s. 3(2) of the Act, and the garnishee summons are a nullity. 1) In an application to set aside a pre-judgment garnishee, the court is not to consider potential defences to the action or the existence of triable issues as grounds for setting aside a garnishee summons. 2) The court examined whether or not the affidavit showed, with the required precision, the amount of the debt or liquidated demand. Although there is reference in the statement of claim to an agreement that interest would be paid at 2.0 % per month, compounded monthly, there is no mention of interest in the Operating Agreement. 3) Of more concern is the four-page invoice attached to the affidavit supposedly attached to confirm the amount of the debt owed by the defendant. The invoice is vague and is of no assistance to the court in clarifying the precise amount of the debt owing. Unlike the information provided in the affidavit of Kuznitsoff v. Hilltop Ford Equipment Sales Ltd. (c.o.b. Hilltop Equipment Sales), wherein the affidavit charted the alleged gross profits by listing the equipment, date of sale, model number, sale price, cost and gross profits on a line by line basis, the contents of the affidavit here is severely deficient in showing with precision the amount of indebtedness owing.

5_2005skqb538.txt

J. C.A. No. 126716 NOVA SCOTIA COURT OF APPEAL Chipman, Hart and Pugsley, JJ.A. BETWEEN: COLLINS BARROW and 1874000 NOVA SCOTIA LIMITED and JOSEPH P. SHANNON Respondents Steven Stieber and Michael J. Wood for the Appellant George W. MacDonald, Q.C.and Michelle C. Awad for the Respondents Appeal Heard: January 29, 1997 Judgment Delivered: April 21, 1997 THE COURT: The appeal is allowed in part as per reasons for judgment of Chipman, J.A.; Hart and Pugsley, JJ.A., concurring. CHIPMAN, J.A.: This is an appeal from an assessment of damages flowing from the appellant's liability to the respondent in tort for negligently prepared financial statements upon which the respondent relied in deciding to purchase the shares of a business. The appellant is firm of chartered accountants. The respondent Shannon is businessman living in Port Hawkesbury and the respondent numbered company is owned by him and was the vehicle used by him to acquire the shares of Action Business Machines Limited (ABM). will use the name "Shannon" to refer to both or either of the respondents as the context requires. ABM sold and serviced cash registers and point of sale equipment which includes device used in many supermarkets and other businesses to scan the price code of an article. The company was incorporated in 1974 by Timothy Adams under the name Maritime Cash Register. It sold equipment and entered into maintenance contracts for such equipment. It required large inventory of parts. As well, it carried out research into, and development of, market software packages for use in its machines. ABM had done very well in the Atlantic Provinces but it fared poorly when it expanded its business into Ontario. By the late 1980's, it was experiencing severe cash flow problems. Collins Barrow was engaged as auditor for ABM in 1987. It prepared audited statements for the years ending October 31, 1987 and 1988. ABM's banker, Lloyds Bank, notified ABM that it must make other banking arrangements by the end of January, 1989, failing which the Bank was prepared to have receiver appointed. In late 1988 and early 1989, William Moore, partner in Collins Barrow, made various unsuccessful attempts to secure new financing for ABM. On January 28, 1989, Moore approached Gordon Neal, senior officer in Shannon's business organization in an effort to interest Shannon in the purchase of ABM. Shannon indicated to Neal that he was not interested and Neal relayed the information to Moore. On January 30, 1989, Moore contacted Shannon directly and provided additional information about ABM. He faxed Shannon the 1988 audited year end financial statements of ABM, together with business plan prepared by Collins Barrow. Moore expressed optimism for the future of ABM. The pressure was on the parties to move quickly in view of the fact that Lloyd's Bank expected its outstanding loan of $947,000 to be paid by January 31,1989. Shannon knew this, and he also knew that ABM's venture in Ontario had been unsuccessful, resulting in large losses. In less than week, Shannon concluded an agreement with Adams whereby Shannon's holding company would purchase the shares of ABM from Adams' holding company. In reaching his decision to buy, Shannon relied on the audited statements provided by ABM's auditor, Collins Barrow. The closing took place on February 16, 1989. Prior to the closing, Shannon arranged to have Keith Eldridge carry out due diligence investigations. Eldridge was registered industrial accountant. He was fully familiar with financial statements and auditor's reports. He reviewed ABM's financial statements and addressed his mind to whether the inventory that had been counted and audited on October 31, 1988, would be useful to Shannon. He was in contact with Shannon on regular basis during his investigations. He prepared checklist of items he reviewed as part of the due diligence process. Prior to closing the transaction, he was aware that the company was in some degree of financial difficulty and that about $80,000 was required for inventory purposes to complete various contracts. Eldridge knew that there would be an expected cash shortfall of $250,000 or thereabouts which Shannon would have to make up shortly after he had acquired the company. However, the company had potential arising out of its customer list and the large amount of point of sale business it carried on in Atlantic Canada. lengthy meeting was held on February 15 and 16 between Adams' team and Shannon's team. Shannon kept in touch with his people. provision was put into the purchase agreement that physical count of inventory would be conducted on or about February 28, 1989 and October 31, 1990. The two counts would be compared and adjustment made to both saleable and serviceable inventory. This would have an impact upon the future payments of the purchase price to be made by Shannon during an earn out period provided for in the agreement. The closing took place on February 16, 1989. Shannon acquired the shares of ABM for $700,000. Of this amount, $200,000 was paid on or before closing and the remaining $500,000 was to be paid out of future cash flow of ABM. No portion of the $500,000 has ever been paid. In addition to the purchase price of the shares, Shannon was immediately obliged to make further payments so that the operation of ABM could continue. He paid out the Lloyd's Bank debt of approximately $947,000, and an overdraft of about $50,000, obtaining the funds by way of loan for which he had to provide personal guarantees to the Bank of Nova Scotia and Roynat Limited, the institutions which had agreed to, provide the financing. Shannon also provided an infusion of cash into ABM, obtained by way of loan from the Bank of Nova Scotia. Cash flow problems were experienced by Shannon and his team in the operation of ABM. In Shannon's words the company "started to deteriorate" after he took it over. There were losses. On the plus side, Shannon and his team developed contacts with suppliers and customers. By October, 1989, he had put in far more money than he had planned. He said he could have considered cutting ABM off and "taking the hit and trying to recover from financial point of view". While preparing the audit for the October 31, 1989 statements, Collins Barrow wanted to take substantial write down in inventory. They also wanted to be paid before giving Shannon the financial statements. This concerned and irritated Shannon. By February of 1990 he consulted counsel with respect to Collins Barrow's work. Collins Barrow continued as auditor for ABM and prepared the audited financial statements for the year ending October 31, 1989. These are dated January 23, 1990. Deloitte Touche became the auditor for ABM for the year ending October 31, 1990. That firm was also retained to provide advice to Shannon about potential claim against Collins Barrow. Deloitte Touche wrote down inventory by $1,800,000 and determined that most of this should apply back to the October 31, 1987, audited financial statements. Deferred development costs which were also listed as an asset in those statements in the amount of $165,202 were also written off. Rick MacCormick was dismissed by Shannon as General Manager in May of 1990. He was replaced by Brent Smith. By the end of 1991 ABM, under Shannon's able management, had been turned around, and showed net earnings of $755,000. Loans made to ABM by Atlantic Corporation, Shannon's management company, will eventually be paid off, personal guarantees of Shannon and his company will not be called and the money borrowed by ABM from Roynat and the Bank of Nova Scotia which was guaranteed by Shannon is being repaid. Shannon testified that the company is now profitable because it was capitalized and managed properly and the direction was changed. It does not operate as single company but has been fragmented into three separate components, each of which is operated by separate company. Gordon Neal attributes ABM's success to strategic decisions recognizing new markets, developing new products, taking risks, making investments, pumping in large amounts of time and energy. The introduction of the G.S.T. brought about new business opportunities. All of these things had been done by the Shannon organization and have brought about the turn around of the company. Although Shannon was successful in turning ABM into profitable operation under his new and restructured management, he claimed that as result of his reliance on the audited statements of Collins Barrow, he suffered loss because of their negligence in preparing the statements knowing that Shannon relied upon the information therein in deciding whether or not to purchase ABM. Proceedings were brought by Shannon in the Supreme Court against Collins Barrow and Timothy Adams on January 10, 1992. They were continued against Collins Barrow only. The trial was held in Supreme Court for 12 days in October of 1995 and by decision dated January 31, 1996, the trial judge awarded the respondents: Direct damages $200,000 Consequential damages $1,800,000 Damages for lost return on alternate investment of $2,000,000 at 10% per year for years $1,400,000 Prejudgment interest on $3,400,000 at 8% per year for years $1,904,000 Costs 150,000 Total: $5,454,000 Collins Barrow appeals to this Court claiming that the trial judge erred in a number of respects in arriving at his award of damages. Collins Barrow accepts the following findings of fact by the trial judge: (a) The financial statements for the year ending October 31, 1988 were negligently prepared by Collins Barrow. (b) Shannon relied upon the audited financial statements in making his decision to acquire the shares of ABM. (c) Shannon would not have purchased the shares of ABM had he known the true state of affairs. (d) It was reasonable for Shannon to rely upon the audited financial statements. (e) Collins Barrow was aware that Shannon would be relying upon the audited financial statements. Collins Barrow raises the following issues: (1) Did the trial judge apply the correct test in assessing the direct damages? (2) Did the respondents suffer any consequential loss and, if so, was it caused by the over valuation of the inventory of ABM? (3) Were the respondents contributorily negligent? (4) Did Shannon mitigate his damages with the result that Collins Barrow should get credit? (5) Should the respondents be awarded prejudgment interest upon each of the three components of damages awarded, i.e. direct damages, consequential damages and return on lost investment opportunities for seven years? 1. CORRECT TEST IN ASSESSING DIRECT DAMAGES: We must keep in mind the finding of the trial judge, stated by him more than once, that had Shannon known the true state of ABM's financial condition, he never would have bought the company. As to "direct damages", the trial judge found that, "but for the misrepresentation by Collins Barrow, Shannon would never have entered into the contract which resulted in his damages". He therefore awarded, by way of direct damages, the amount of $200,000 which Shannon paid over to Adams at the closing. The trial judge then addressed what he referred to as "consequential damages" suffered by Shannon as result of the misstatement. He accepted the calculation by Deloitte Touche as to the overstatement of the inventory and the deferred development costs. These totaled approximately $2,000,000. The trial judge then continued: Having approved those investigations and actions taken, share Glen Williams' conclusion that while the exact amount of the misstatement at October 31, 1988 is not precisely determinable, it is perfectly reasonable to conclude that the financial statements were misstated by Collins Barrow and the amount of their misstatement was significant. On the witness stand he was prepared to say that it "approached $1.8 Million". The bases described by Williams in coming to that opinion were reasonable. The trial judge then said that it would be impossible for Shannon to establish with precision the exact extent of his loss. Any measure of his damages is, he said, admittedly difficult. agree fully with these observations. As Doherty, J.A. said in Toronto Industrial Leaseholds Limited v. Posesorski et al. (1994), 1994 CanLII 7199 (ON CA), 21 O.R. (3d) (Ont. C.A.) at p. 21: The parties agreed at trial that had Mr. Solway told the clients about the option, they would not have purchased the property. Perfect restitution would therefore appear to require notional undoing of the transaction some ten years after it was completed, coupled with an attempt to determine the net benefit or loss suffered by the clients as result of entering into the transaction. Sometimes the evidence permits relatively accurate reconstruction of events on the assumption that certain things would or would not have occurred had there been no breach (see, e.g., Semelhago v. Paramadevan (1994), 1994 CanLII 1194 (ON CA), 19 O. R. (3d) 479, 39 R.P.R. (2d) 215 (C.A.)). In this case, it is impossible to perform that reconstruction. There are too many variables, many of which were not addressed in the evidence, presumably because the parties were satisfied that an attempt to unravel the transaction and establish the clients' position on the assumption that the transaction had not occurred was so complicated as to defy performance. Absent the ability to make perfect restitution, court, in assessing damages, must do the best it can The trial judge referred to the testimony of Brian E. Keough, whose report pegged Shannon's losses at between $1.6 and $1.8 million, excluding prejudgment interest and costs. In addressing Shannon's loss, Mr. Keough adopted two approaches. The first was measurement of his loss on the transaction date, February 16, 1989. By comparing the Collins Barrow financial statements with the adjusted statements prepared by Deloitte Touche he concluded that in the context of ABM as going business, Shannon's loss was approximately $1.8 million. This, he said, was the amount that would have to be restored to ABM to put it (and therefore Shannon's investment) in the same financial position as it would have been, had no adjustments been required to the acquisition day balance sheet. The second approach was on the assumption that it was unlikely that Shannon could have recognized the extent of the difficulties with ABM's balance sheet at the transaction date. Therefore the same valuation analysis should be made at the first fiscal year end subsequent to the purchase. Based on liquidation value at October 31, 1989, Keough determined Shannon's loss on the footing that he then decided to cut his losses and wind up the company. Viewed in the context of liquidation, Keough concluded that Shannon's losses would have been in the range of $1.6 to $1.8 million had he wound up ABM on October 31, 1989. The trial judge did not adopt the second approach. He said: am also satisfied that he did not become aware of the company's real financial situation until several months had elapsed. By that time he had undertaken significant personal obligations and had used substantial additional funds at considerable risk. Consequently he cannot be placed in his original position merely by returning the purchase price. The trial judge concluded that the first approach was to be preferred, as it looked at the company as going concern on the transaction date rather than assuming liquidation at future date. Shannon did not, in fact, liquidate. The trial judge referred to the effort and money Shannon put into ABM. By October of 1989 he had injected $800,000 from his own company, Atlantic Corporation Limited, into ABM. He had made commitments to people. He had made contacts with key suppliers and customers of ABM. His reputation was exceedingly important to him, not only in terms of self-respect, but in his ability to raise funds. Over the years he had diversified in business and at first bankers were reluctant to support him when he entered new field. However, they had acquired such confidence in him and in his management teams that he was able to obtain financing for new ventures. He simply could not walk away. He did not walk away, and after much effort he managed to turn ABM around. As at the end of 1991 the company showed net earnings of $755,000. The trial judge concluded: Having found that the calculations determined by Deloitte Touche in its adjusted balance sheet were accurate, and that the decisions taken by ABM's management in allocating those adjustments to 1990, 1989 and 1988 were appropriate, and after applying the evidence of both Williams and Keough, find that the fairest and most accurate measure of the consequential damages suffered by the Plaintiff as result of the Defendant's negligence is $1.8 Million. This takes into account all of the liabilities he was forced to incur in order to maintain the company's operations, the risks to his reputation, and the equity and time and energy devoted by him and the senior executives to maintain the company's existence. The award of direct damages was $200,000 and that of consequential damages $1,800,000, for total of $2,000,000. Collins Barrow says that the trial judge's approach was erroneous. It was an approach designed to put Shannon in the position in which he would be had the financial statements correctly stated ABM's financial condition the test for measuring damages for breach of contractual warranty. The test to be applied for damages in tort is the amount of the overpayment, that is, the difference between the price paid and the market value of the shares at the time of the purchase. G. H. Treitel, The Law of Contract, Ninth Edition, states the position: Liability for misrepresentation may arise in tort (where the representation is made fraudulently or negligently) or in contract (where the representation has contractual force). This distinction affects the assessment of damages in the most common case of misrepresentation: namely, where seller represents that the subject-matter of contract has quality which in fact it lacks. The general principle is that in tort the plaintiff is entitled to such damages as will put him into the position in which he would have been if the tort had not been committed; while in contract he is entitled to be put into the position in which he would have been if the contract had been performed. It is thought to follow that in tort the plaintiff is entitled to be put into the position in which he would have been if the representation had not been made, while in contract he is entitled to be put into the position in which he would have been if the representation had been true. If the representation induces the plaintiff to buy something which, but for the misrepresentation, he would not have bought at all, it follows that the damages in tort are prima facie the amount by which the actual value of the thing bought is less than the price paid for it. In contract, on the other hand, the damages are prima facie the amount by which the actual value of the thing bought is less than the value which it would have had if the representation had been true. Fleming on Torts, 8th Edition, concisely states at p. 649 the difference between damages in tort for negligent misrepresentation and damages in contract for breach of warranty: As in the case of deceit, damages for negligent misrepresentation are restricted to reliance losses and do not include expectation losses (loss of bargain) as could claim for breach of warranty. Specifically, Collins Barrow says that the approach taken by Keough was to arrive at the amount that would have to be restored to ABM to put it in the position it would have been had no adjustments been required to the acquisition day balance sheet. Collins Barrow submits that the proper method of calculating the damages is the purchase price less the market value of the company at the date of acquisition. It says that Shannon failed to introduce evidence as to the value of the shares or the market value of the company at the time of the purchase. I agree with Collins Barrow that the trial judge has measured the loss on the footing that Shannon should be put in the position he would be had the financial statements of ABM been correct. This, being the test for measuring damages for breach of a contractual warranty, is not the correct test. The principle applicable to the award of damages here is clear. As the trial judge said, it is the application of it that is difficult. The trial judge found that Shannon never would have purchased ABM had he known the true financial condition of the company. The exercise therefore is to fix the damages so as to put Shannon as far as possible in the position he would have been had he not invested in ABM. In particular, the damages are prima facie the amount by which the actual value of ABM was less than what Shannon paid for it. In Esso Petroleum Co. Ltd. v. Marden (1976), Q.B. 801, Denning M.R. in the Court of Appeal of England dealt with the assessment of damages by businessman who, on the basis of negligent misrepresentations respecting potential volume of petroleum sales, purchased service station business. At p. 820, he said: Mr. Mardon is not to be compensated here for "loss of bargain." He was given no bargain that the throughput would amount to 200,000 gallons year. He is only to be compensated for having been induced to enter into contract which turned out to be disastrous for him. Whether it be called breach of warranty or negligent misrepresentation, its effect was not to warrant the throughput, but only to induce him to enter the contract. So the damages in either case are to be measured by the loss he suffered. Just as in Doyle v. Olby (Ironmongers) Ltd. [1969] Q.B. 158, 167 he can say: ". would not have entered into this contract at all but for your representation. Owing to it, have lost all the capital put into it. also incurred large overdraft. have spent four years of my life in wasted endeavour without reward: and it will take me some time to re-establish myself." For all such loss he is entitled to recover damages. It is to be measured in similar way as the loss due to personal injury. You should look into the future so as to forecast what would have been likely to happen if he had never entered into this contract: and contrast it with his position as it is now as result of entering into it. The future is necessarily problematical and can only be rough-and-ready estimate. But it must be done in assessing the loss. It was only in the fall of 1989 that Shannon began to become aware of the extent of the difficulties with ABM and the role played by the financial statements in drawing him into this unwanted bargain. It was at this time or soon thereafter that his losses became measurable, and he could have cut them and left. He did not choose to do so. Keeping in mind, however, what Denning M.R. said in Marden, supra, the best way to assess Shannon's direct loss is to ascertain how much he was out of pocket if he had cut his losses and walked away in late 1989. He had duty to mitigate, to prevent the snowball from rolling further down hill. See Haida Inn Partnership v. Touche Ross and Company (1989), 1989 CanLII 5318 (BC SC), 64 D.L.R. (4th) 305 (B.C.S.C.) at pp. 310-311, 314-316. Mr. Keough's second approach therefore offers better basis on which to assess the loss. He assessed it at figure of between $1,600,000 and $1,800,000 by calculating what Shannon had put into the business, plus the cost of liquidation, less what would have been salvaged on liquidation. He produced Table to this report: LOSS OF INVESTMENT IF ABM WOUND UP ON OCTOBER 31, 1989 (Using Figures from Table 6) Net Book Liquidation Value Assets: Accounts receivable trade 502,636 402,100 452,400 Accounts receivable re: future period maintenance agreements 393,000 Inventory 521,302 173,800 260,700 Prepaids 11,802 5,900 8,900 Goodwill and investment Receivable from associated companies 548,814 548,800 548,800 Deferred development costs 70 Equipment and leaseholds 106,381 53,200 79,800 2,084,006 1,183,800 1,350,600 Less Payout to Secured Creditors: Bank indebtedness 1,046,267 1,046,300 1,046,300 Prime +1 note payable to ICL 106,875 106,900 106,900 15.2% debenture payable to Roynat 734,000 734,000 734,000 Wind up costs 100,000 100,000 100,000 1,987,142 1,987,200 1,987,200 Residual (Shortfall) to secured creditors, guaranteed by Shannon 96,864 (803,400) (636,600) Add: Other non-recoverable investment by Shannon: Note payable to Atlantic Corporation 793,934 793,900 793,900 Original purchase price of shares 190,000 190,000 Loss of Investment, if ABM Liquidated at October 31, 1989 $(1,787,300) $(1,620,500) Say $(1,800,000) $(1,600,000) It will be seen that Keough has allowed substantial amount for wind up costs. He has calculated Shannon's contribution to the business as of October 31, 1989, at $2,681,100, and he has allowed all but $10,000 of the purchase price of $200,000. By this time, Shannon was clearly aware that there were serious problems with the business and he should have, as he did, consider "pulling the plug". Keough's second calculation and the evidence on which it is based furnishes basis for assessment of damages by the application of tort principles. Within reasonable limits, it establishes how much Shannon paid to acquire the business on the one hand and how much it was really worth on the other. The difference is the loss of investment had ABM been liquidated on October 31, 1989. Although this approach is not perfect, am prepared to accept it as establishing on balance of probabilities the loss sustained as result of the misrepresentations which led Shannon to purchase ABM. It was impossible to undo the bargain and this liquidation approach comes closest to measuring the loss. At this point, would observe that counsel for the respondent put the position succinctly in his factum when he said: Further, and perhaps more simply, comparison of the price which Shannon paid for ABM and the company's actual negative value results in an award similar to that given by the learned trial judge. The burden is on Shannon to establish his loss. In view of the fact that Keough is only able to provide range with $200,000 spread, it is reasonable to peg that loss in the middle of range and arrive at figure of $1,700,000 to which should be added the balance of the purchase price of $10,000, making an award of $1,710,000 for direct damages. would propose this figure in lieu of the amounts of $200,000 and $1,800,000 respectively fixed by the trial judge. The trial judge said that his assessment of $1,800,000 took into account what he referred to as all of the liabilities the respondent was forced to incur in order to maintain the company's operations, the risks to his reputation and the equity, time and energy devoted by him and his senior executives to maintain the company's existence. On the approach have taken, the award of $1,710,000 does not. It is true that as it turned out, these efforts on the part of Shannon were not lost. Having done all these things, he had company that soon became money maker for him. This has to be addressed as well under the heading of mitigation of damages. Nevertheless, consideration must be given to what, if anything, should be awarded for the additional time, risk and expenditure incurred by Shannon as result of the negligence of Collins Barrow. will deal with this in connection with consequential loss. 2. CONSEQUENTIAL LOSS: This issue deals with the trial judge's award of $1,400,000 representing lost return on alternative investment of $2,000,000 at 10% per annum for seven years. The trial judge recited Shannon's claim that had he not purchased ABM, he would have invested his capital, used available credit and applied his business skills and resources in other profitable ventures. Given his successful track record, it was urged that Shannon would have earned reasonable return on such other ventures. Consequential damages may be awarded to plaintiff who has relied upon the defendant's negligent misrepresentation. repeat and expand upon Fleming, supra, at p. 649: As in the case of deceit, damages for negligent misrepresentation are restricted to reliance losses and do not include expectation losses (loss of bargain) as could claim for breach of warranty. Thus plaintiff who had been misled into buying an insurance in the belief that it contained certain cover in the event of injury, recovered nothing because the policy he purchased was worth (even without that cover) what he paid for it. The court allowed, however, that he would have prevailed if he could have proved that he forwent an opportunity to purchase elsewhere policy containing the extra cover. Similarly, when mistaken certificate from local authority led prospective purchaser to believe that the land was zoned for subdivision, his damages were assessed on the basis of its lesser value (plus conveyancing costs) but not including profits from any subdivision. These would have been recoverable only on proof that he lost an opportunity of buying another property which would have earned profits. While the possibility of recovering opportunity costs moves the tort measure closer to the expectancy measure of contracts, it is not identical with it. In case of promise by seller that the property yielded certain return, the promisee's recovery (in contract) will be measured by the expected gains, whereas in tort for misrepresentation it would by the (usually lesser) return of an alternative investment. (emphasis added) In testifying, Shannon described his approach to business acquisition. He said that he looks for 20% return on his investment. When he analyzed the financial information he had received from Collins Barrow and prepared his own calculations, Shannon was satisfied that ABM would give him this type of return. In addressing what would have been likely to happen had Shannon not purchased ABM, the trial judge accepted Shannon's proposition that he looked for 20% return on his investment in purchasing business. Keeping in mind what Denning M.R. said in Marden, supra, the trial judge said that looking into the future from February 1, 1989 onward was "necessarily problematical" and could only be done by rough-and-ready estimate. He thought contingency factor should be applied to reduce Shannon's expectation in as much as in acquiring ABM he was entering into new field of business about which he knew little. The trial judge continued: The best consideration can give to the evidence suggests that 15 percent per year return would be reasonable yield on the Plaintiff’s investment. There should also be discount in that the Plaintiff will be entitled to prejudgment interest. It would be, in effect, double compensation to award Shannon the full amount of his lost investment opportunity plus prejudgment interest. In the result make further reduction of five percent thus leaving the Plaintiff ten percent per year return on his investment. Shannon did not establish that he lost an opportunity to buy another profitable business venture because of the purchase of ABM. True, such damages are "necessarily problematical" and involve, as the trial judge said, rough-and-ready estimate. However, it is not realistic to award damages for lost opportunity absent any evidence showing that because of the purchase of ABM and the time spent in turning it around, Shannon was disabled from entering into other more profitable acquisitions. There was no evidence of any acquisition available which he would otherwise have considered but for the purchase of ABM. There was no evidence that the effort spent in dealing with ABM deprived him of financial or other resources which would enable him to seize an opportunity. The discovery evidence of Shannon tendered on behalf of Collins Barrow at the trial sheds considerable light on this: Q. So, really, when we're talking about the non-financial burden on Joe Shannon and his companies, what we're talking about is primarily the devotion of people time to sort out the problems at ABM? A. Well, it was sacrifice to our group of companies. It was Q. I'm not saying it isn't. A. It was freebie for ABM but it was certainly, in our group of companies and me, you know, at the end and on the bottom of the pile, it was it was more of an investment for me because while those people were committing their time to this exercise in trying to get this thing sorted out, mean, we weren't doing something else. We were losing opportunities, you know, of doing something else. Q. Were there any specific opportunities that you were losing that you can think of, or is it just generally the fact that they were spending their time at ABM that, almost by definition, there were opportunities out there A. Yes. Q. that you were missing? A. Yes, of course. Q. So it's not specific? You're not saying here was specific thing we wanted to do that we couldn't do? Are you? A. Again, can't give you time and date but there would have been investment decisions that would have been postponed in our companies as result of this exercise. Q. When you say "investment decisions", you mean new businesses that you would have A. Well, either new business or expansions, you know, because we were very deeply, heavily committed to this company and trying to get it sorted out as result of the of the of what we discovered. Q. Are you in position to quantify at all those lost opportunities that you say you weren't able to pursue? A. As just told you, said can't give you time and date on it, but there was, you know, mean, if you look at the history of our companies, they, you know, were always on the acquisition looking for acquisitions, and if we hadn't spent four gruelling years or five years, whatever in the hell it was, on this thing, we would have been doing other things. And there is but can't give you specific company or an opportunity. No, can't give you that. Q. But do you have in your mind value, an amount that you No. Q. that you missed out on? A. No, sir, can't give you that. Q. Is there anyone else that could give us A. No. These extracts from the discovery examination were tendered at the conclusion of the defendant's case. Shannon's counsel urged the trial judge to disregard this evidence. He referred to the so-called rule in Browne v. Dunn, [1893] R. 67 and Sopinka, Lederman and Byrant, The Law of Evidence in Canada (Butterworths: Toronto (1992) at pp. 876-7). He urged that it would be unfair to discredit the plaintiff by the answers he gave at discovery. The trial judge said: agree Shannon was not confronted with this discovery evidence. "The apparent contradiction" went unchallenged and unexplained. If the defendant intended to impeach the plaintiff by virtue of this "apparent" contradiction, Shannon ought to have been given the opportunity, of testifying, of making any explanation which was open to him. Not having been given that opportunity, it is unfair to ask me to disbelieve what the plaintiff said under oath at trial. therefore accept his evidence that he planned to achieve 20% yield on his investment annually. do not consider that the discovery evidence was contradiction of any evidence given by Shannon. Shannon stated his objective of making acquisitions and getting returns of 20%. The discovery evidence simply establishes that he was unable to point to any specific company or opportunity that he lost. do not take the view that the discovery evidence was only to impeach or discredit Shannon in any event. Collins Barrow had right to tender this discovery evidence at the trial without first having put it to Shannon on cross-examination. Civil Procedure Rule 18.14(1) is clear: 18.14 (1) At trial or upon hearing of an application, any part or all of deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at an examination for discovery, or who received due notice thereof, for any of the following purposes, (a) to contradict or impeach the testimony of the deponent as witness; (b) where the deponent was party, or an officer, director or manager of party that is corporation, partnership or association, for any purpose by an adverse party; (emphasis added) Collins Barrow tendered this discovery pursuant to Rule 18.14(1)(b). Indeed, at the time counsel tendered it, he stated that he had added certain portions of Shannon's discovery at the request of Shannon's counsel, presumably in response to Rule 18.14(2): 18.14 (2) If only part of deposition is offered in evidence by party, an adverse party may require the introduction of any other part which is relevant to the part introduced, and the other party may introduce any further part. The failure to put this discovery evidence to Shannon on cross-examination may well be criticized from tactical point of view. At the very least, such failure would clearly give Shannon's counsel an opportunity to deal with the subject on rebuttal. He did not do so. am satisfied that the trial judge erred in not giving effect to this discovery evidence which confirms that however ambitious Mr. Shannon may have been and however willing he was to take advantage of any and all opportunities, he was unable to show that any specific opportunity was lost as result of the purchase of ABM. The case is clearly distinguishable from V. K. Mason Construction Limited v. Bank of Nova Scotia, 1985 CanLII 608 (SCC), [1985] S.C.R. 271 on which the respondent relied. There, on the facts of that case, the court was prepared to assume that contractor induced by the defendant's negligence to enter into contract which turned out to be unprofitable would, but for such negligent inducement, have found profitable means of otherwise employing itself. That case is fact specific in that in its judgment the Supreme Court of Canada referred to finding of the trial judge that but for the misrepresentation, the plaintiff would have ceased work on the project, recovered its expenses for work already done and found another construction project to work on. See [1985], S.C.R. pp. 279-280, 285. Here the evidence fails to disclose anything to support the conclusion that Shannon, would, but for this particular investment, have made other profitable investments. Applying the test laid down by Fleming, Shannon has not shown that as result of buying ABM he "forwent an opportunity to purchase elsewhere" lucrative business. Another concern with the trial judge's award is that it compensates for supposed loss of opportunities over seven year period. Shannon himself spoke of "four gruelling years or five years, whatever the hell it was". Within two years, Shannon was making money with ABM. There is no evidence that if any opportunity was lost, that it was lost over such long period of time as seven years. am satisfied that this award must be disallowed. The question remains what if any general damages should be awarded to Shannon for extra wasted effort which would not have been wasted had ABM not been acquired. Bearing in mind that it is necessarily problematical and can only be "rough-and-ready" estimate it still must, as Denning M.R. has said, be made in assessing the loss. In the case of Marden, supra, the court awarded damages for capital loss representing cash put into the business and overdraft incurred in running the business. Loss of earnings were to be discussed and further argument was called for. We are thus unable to find any guidance there as to what might have been awarded in that case in making the rough-and-ready estimate. Because have concluded that it would have been reasonable for Shannon to cut his losses in the fall of 1989, the amount to be awarded should reflect compensation for wasted efforts prior to that time only. am prepared to accept the challenge thrown out by Lord Denning of making an estimate "in similar way as the loss due to personal injury". The trial judge found that Shannon was forced to incur greater liabilities than he anticipated in order to maintain the company. His reputation was at risk. He devoted more time and energy, both of himself and his senior executives, to maintain the company's existence than would have been the case had he not purchased it. The trial judge said: Fortunately, the banks "kept the faith" and although Shannon said he "spit lot of blood", he managed to turn ABM around, part of that was undoubtedly due to the efforts of Brent Smith. Fortunately, the agonies had happy outcome, but nevertheless they are not to be ignored. There was not only effort and exertion, but money tied up for varying periods of time for which have not yet accounted. It is extremely difficult to estimate. Giving the matter the best consideration can, an award of $50,000 general damages for disruption and inconvenience would be appropriate. 3. CONTRIBUTORY NEGLIGENCE: Collins Barrow submits that contributory negligence and apportionment may be utilized in negligent misrepresentation cases and cites various authorities for this proposition. It submits that there is distinction between reasonable reliance as necessary prerequisite to finding of liability and reliance in the context of contributory negligence as factor going to the extent of damages suffered. It is said that reliance that was unreasonable simply goes to reducing damages recoverable by plaintiff. It does not go to cancelling the prima facie liability of the defendant. Collins Barrow submits here that the reliance was unreasonable because, "the plaintiff himself was person who had some degree of expert knowledge or perhaps knows as much as the defendant". Collins Barrow submits that Eldridge, qualified accountant, was the person primarily responsible for the due diligence investigation of ABM on behalf of Shannon. It is submitted that he was negligent in failing to discover the inventory overstatement and consequently the respondents own conduct contributed to any losses suffered. It is said that if Eldridge did not possess the requisite skill to carry out due diligence investigation, it was in Shannon's economic interest to retain someone who did. Collins Barrow also submits that the respondents were, in fact, aware of circumstances that should have alerted them to the economic risks of transaction. Shannon's people knew that ABM was in some degree of difficulty in view of the requirement of Lloyd's Bank that it be paid out by the end of January and in view of their knowledge that some $80,000 in inventory purchases were required in order to complete contracts, that the serviceable equipment had no value and that the amount of inventory write-down on monthly basis was not adequate and that there would be cash shortfall of $250,000 to be made up in the immediate future. It submits that the trial judge erred in failing to find that Shannon was contributorily negligent in these respects. The trial judge addressed the issue of contributory negligence. He found: Eldridge impressed me as being astute, reliable, assiduous and fair. accept all of his evidence. am satisfied that every step taken by Eldridge and his people was thorough and appropriate and his due diligence investigation was in no way deficient. This is very strong finding. It must be remembered that in testing the conduct of Collins Barrow and that of Eldridge respectively, the former had great advantages in determining what was the true picture of ABM. It was engaged by ABM and had the necessary opportunity it required to satisfy itself of the financial condition before certifying the statements. On the other hand, Eldridge's team had only matter of days in which to carry out the due diligence. In my opinion, Collins Barrow has failed to show the trial judge made any palpable or overriding error in his finding which have set out, and in the following finding: While theoretically intriguing, find the defendant's submission to be circular and impractical, when applied to the circumstances of this case. One cannot assess contributory negligence in vacuum. The defendant has failed to demonstrate any negligence on the part of the plaintiff which might be seen to be contributory. If the defendant Collins Barrow failed to recognize their own negligence and breach of professional conduct in the years they served as auditors, how could the plaintiff be expected to detect such negligence in its two weeks work of diligence investigations?... would reject Collins Barrow's submissions on the issue of contributory negligence. 4. MITIGATION: In the course of the argument, counsel for Collins Barrow referred to the finding that Shannon would not have purchased ABM had he known the true picture. The argument was that since he did not cut his losses, but continued his effort to save the business, he had embarked upon program of mitigation. That program was successful. Collins Barrow therefore claims to have the benefits of the successful set off against the loss sustained by Shannon. With respect to mitigation of damages, McGregor on Damages, Fifteenth Edition, refers to, in Ch. 7, para 273, et. seq. to three rules concerning avoiding the consequences of wrong: (a) The plaintiff must take all reasonable steps to mitigate the loss to him resulting from the defendant's wrong and cannot recover for loss that could have been avoided by taking such steps. (b) corollary of the first rule is that where plaintiff does take reasonable steps to mitigate the loss, he can recover for loss sustained in so doing. (c) Where plaintiff does take steps to mitigate the loss, the defendant is entitled to the benefit accruing from such action and is liable only for the loss as lessened. In addressing Collins Barrow's argument on mitigation, we are concerned with the application of the third rule. McGregor, supra, at para 325 said: But the plaintiff may have gone further and by sound action have avoided more consequences than the dictates of the law required of him. In such circumstances the position has been definitively stated by Viscount Haldane L.C. in the leading case of British Westinghouse Co. v. Underground Ry, [1912] A.C. 673. He put the rule thus: "When in the course of his business he [the plaintiff] has taken action arising out of the transaction, which action has diminished his loss, the effect in actual diminution of the loss he has suffered may be taken into account even though there was no duty on him to act." Later in his speech he said similarly: "Provided the course taken to protect himself by the plaintiff in such an action was one which reasonable and prudent person might in the ordinary conduct of business properly have taken, and in fact did take whether bound to or not, jury or an arbitrator may properly look at the whole of the facts and ascertain the result in estimating the quantum of damage." He emphasised however that "the subsequent transaction, if to be taken into account, must be one arising out of the consequences of the breach and in the ordinary course of business," and the important practical question is therefore what steps taken by the plaintiff satisfy this definition. As McGregor points out, British Westinghouse, supra, was case of breach of contract. He states that wider formulation, which more readily includes tort, is that subsequent event "completely collateral and merely res inter alios acta" cannot be used in mitigation of damage. He continues (para 326): This has the great merit of stating the rule at once concisely and completely: but it gives no indication of how the rule operates and of what solutions would be reached when applying it to particular circumstances. Indeed the line between those avoided consequences which are collateral and those which are not is an exceedingly difficult one to draw. It is thought that, in considering the relevant decided cases which are widely dispersed over many fields, Viscount Haldane's formulation is of value, and that assistance is also derived from division into actions taken before breach and actions taken after breach, and from subdivision of the latter group into actions taken by third parties and actions taken by the plaintiff. The author states, referring to The World Beauty (1970), P. 144 that the onus is on the defendant to prove that the steps taken by the plaintiff were not completely collateral to the wrong, and the extent to which the loss has thereby been avoided. In that case, ship was damaged. In assessing damages against the wrongdoer, the latter got credit for increased profit the ship owner made on charter party by reason of being able to find substitute ship. Denning M.R. said at p. 152: The 7-year time charter with Mobil Oil was advanced by three months. The Andros Springs started on the 7-year charter (at high rate) 100 days earlier than she would have done if there had been no collision. She was delivered to Mobil Oil on July 11, whereas if there had been no collision, she would have been on October 19. McGregor states in paragraph 335 with respect to action taken by plaintiff: The matter is not well worked out in the authorities and all that can be done is to sketch what the law probably is. The author discusses number of contract cases. In addition to The World Beauty, supra, the author refers to Bellingham v. Dhillon, [1973] Q.B. 304. There, the plaintiff sustained injuries as result of the defendant's negligence. The plaintiff owned and ran driving school and as result of the injuries, lost the opportunity of buying on hire purchase an expensive driving simulator. Some three and one-half years later, however, he was able to buy the same equipment as liquidated stock for fraction of the original price. In his claim for loss of profits that he would have made with the simulator over three and one-half years it was held that there must also be brought into account the profits in fact earned by the substitute simulator. Waddams on Damages, loose leaf edition, Canada Law Book Inc., has discussion on the subject of avoided loss at Ch. 15 at para. 15.670. He states with respect to the third rule that the simple statement of it conceals very difficult proposition. He says: After the defendant's wrong, the plaintiff continues to engage in the ordinary transactions of business; some of these will turn out to be profitable. The difficulty is to determine when such profits should be taken into account for the benefit of the wrongdoer. The problem is akin to some of the intractable problems of legal causation. After the wrong has been done the plaintiff finds state of affairs that includes the alteration caused by the wrong. In that altered state of affairs, the plaintiff enters into profitable transaction which could not have been entered into in exactly the same form if events had been unaltered by the defendant's wrong. In one sense it can be said that all such profits are attributable to the wrong, for in the absence of the wrong they would not have been made. But this rule would plainly be too generous to the defendant. In another sense it might be said that all such profits are due to the plaintiff’s enterprise, not to the defendant's wrong, but this would be too generous to the plaintiff, for where profit is very closely linked with the defendant's wrong, common sense requires the conclusion that the effect of the profit is to reduce the loss caused by the wrong. Waddams points out that at best phrases such as "collateral" or "res inter alios acta" state the court's conclusion in particular case rather than provide guidance in the application of the principle. In discussing the case of Apeco of Canada Limited v. Windmill Place, 1978 CanLII 186 (SCC), [1978] S.C.R. 385, to which we were referred, Waddams says at para 15.750: The Supreme Court of Canada quoted from Viscount Haldane's speech in British Westinghouse: "The subsequent transaction, if to be taken into account, must be one arising out of the consequences of the breach and in the ordinary course of business." The Supreme Court of Canada held that the rent from the second transaction need not be taken into account, describing it as: "an independent transaction which in no way arose out of the consequences of the breach by the appellant". Waddams then concludes, paragraph 15.800: These considerations suggest what seems to be test often applied, that is, whether the plaintiff could, even in the absence of the wrong, have made the disputed profit. If so, it is treated as collateral. If not, it goes to reduce the plaintiff’s loss. profitable purchase of shares or goods would usually be treated as collateral because usually it could have been made even if the wrong had not been done It is clear from these passages that while the rule is easy to state and difficult to apply, it is left to court in making the judgment call whether subsequent profit earned by plaintiff is "completely collateral" to the defendant's wrongdoing. In Scott Group Limited v. McFarlane and others (1977), N.Z.L.R. 553 (N.Z.C.A.), Cooke, J. at p. 587 expressed the position this way: In principle it must be so, because the tort measure is the plaintiff’s loss, which cannot be ascertained without taking into account the benefit that the transaction has in fact brought him. do not view Shannon's subsequent turn-around of the company as being analogous to situations such as that dealt with in Bellingham v. Dhillon, supra, and The World Beauty, supra. It is hard to view the subsequent successful operation of the business as being attributable to the negligence of Collins Barrow. In my view, Shannon's decision to stay with the company and attempt to turn it around was an intervening event which put an end to the chain of causation connecting the negligence of Collins Barrow with the losses suffered by Shannon. The misrepresentation of Collins Barrow was but sine qua non and not causa causans of Shannon's subsequent successful reorganization. have already measured Shannon's direct loss on the basis of what he would have suffered had he wound up the company at the end of the fiscal period ending October 31, 1989. It was at that time that the direct damages arising from Collins Barrow's negligence were capable of some degree of measurement. believe it would have been reasonable for Shannon to cut his losses. He could have done that. Instead, largely for reasons of pride and the maintenance of his reputation, Shannon chose to go on with the company. From there on, it was Shannon's game to win or lose. The subsequent steps taken by Shannon and his resulting success were intervening or collateral events which should not be credited to Collins Barrow by way of mitigation. Underlying the success was the complete reorganization and recapitalization of ABM, the development of new products, injection of very large amounts of cash and the advent of the G.S.T. which presented new opportunities. Had Shannon gone on to incur more extensive losses in his attempt to turn the company around, it is unlikely that the expenses so incurred could fall within the second rule of mitigation. Collins Barrow could probably be heard to say that he should have cut his losses when he saw the situation shortly after October 31, 1989. See Haida Inn Partnership, supra, pp. 314, 316. am not satisfied that Collins Barrow has established (as it must), that Shannon would not have made these profits "even in the absence of the wrong". Collins Barrow is not entitled to an offset against the damages for the subsequent success attained by Shannon after he had channeled the company into an entirely new operation. 5. PREJUDGMENT INTEREST: Collins Barrow submits that the trial judge erred in awarding prejudgment interest upon each of the three components of damages awarded direct damages, consequential damages and return on lost investment opportunity for seven years. have recalculated the award. On the basis have adopted, am satisfied that prejudgment interest at the rate of 8% should be applied to the sum of $1,760,000 over period of seven years. Collins Barrow submitted that the trial judge failed to consider that loans were being repaid thereby reducing the amount upon which prejudgment interest should be awarded. have taken these uncertainties into account in fixing the sum for consequential damages at $50,000 and for that reason see no need to further reduce prejudgment interest. As have not awarded damages for loss of investment opportunity, the submissions of Collins Barrow respecting that need not be considered. Accordingly, prejudgment interest should be allowed at 8% for seven years for an amount of $985,600. SUMMARY: I would allow the appeal in part by varying the award of damages and substituting the following in place of that awarded by the trial judge:Direct Damages $1,710,000Consequential Damages $ 50,000Prejudgment Interest $ 985,600TOTAL: $2,746,600 The prejudgment interest is calculated to the date of the trial judge's order, March 6, 1996. In addition, Shannon should recover interest from that date to the date of the order of this Court at the rate of 6% per annum: Civil Procedure Rule 62.10(4). Shannon should also recover his costs at trial fixed by the application of Scale of the Tariffs to the amount involved which fix at $1,760,000. This amounts to $93,325, plus disbursements to be taxed. As Collins Barrow has, in the main, succeeded on this appeal, would allow it costs of $37,330, being 40% of the trial costs, plus disbursements, to be off set against Shannon's recovery of costs. would delay issuing the order in this matter for two weeks in the event that there are circumstances relevant to the issue of costs of which this Court is not aware. Chipman, J.A. Concurred in: Hart, J.A. Pugsley, J.A. 1992 S.H. No. 80619 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: 1874000 NOVA SCOTIA LIMITED and JOSEPH P. SHANNON and TIMOTHY ADAMS and COLLINS BARROW DECISION HEARD: at Halifax, Nova Scotia, before the Honourable Mr. Justice Jamie W.S. Saunders, on October 2, 3, 4, 5, 6, 16, 17, 18, 23, 25, 26 and 27 1995 DECISION: January 31 1996 COUNSEL: George W. MacDonald, Q.C., and Ms. Michelle Awad, solicitors for the Plaintiffs Michael J. Wood, Esq. and Kevin C. MacDonald, solicitors for the Defendant, Collins Barrow CA.C. No. 126716 NOVA SCOTIA COURT OF APPEAL BETWEEN: COLLINS BARROW and 1874000 NOVA SCOTIA LIMITED and JOSEPH P. SHANNON Respondents REASONS FOR JUDGMENT BY: CHIPMAN, J.A.

This was an appeal from an assessment of $5,454,000 in damages resulting from the appellant's liability to the respondent in tort for negligently prepared financial statements upon which the respondent relied in deciding to purchase the shares of a business. The appellants appealed. They argued that the trial judge, by measuring the respondent's loss on the basis that he should be put in the position he would have been if the financial statements had been accurate, had applied the wrong test. Allowing the appeal reducing the damage award to $2,745,600, that the trial judge erred in the test he applied to the award of damages. The proper test is to put the respondent as far as possible in the position he would have been in if he had not invested in the company. The damages are the amount by which the actual value of the company was less than what the respondent paid at the time of purchase.

d_1997canlii14978.txt

J. 1999 SKQB 18 Q.B. A.D. 1998 No. 1940 J.C. S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: SASKATCHEWAN INSTITUTE OF APPLIED SCIENCE AND TECHNOLOGY and SASKATCHEWAN PROPERTY MANAGEMENT CORPORATION and HAGBLOM CONSTRUCTION (1984) LTD., MARCEL FORTIER, GREG MARQUIS and JOHN MACAROCO and CITY OF SASKATOON and WILLIAM HEWITT THIRD PARTIES B. J. Kot for the defendants G.D. Young, Q.C. for the third parties JUDGMENT BARCLAY J. August 18, 1999 [1] This is an application by the City of Saskatoon and William Hewitt (the "third parties") to strike out the third party claim on the basis that it does not disclose a reasonable cause of action. FACTS [2] Saskatchewan Institute of Applied Science and Technology and Saskatchewan Property Management Corporation (the "plaintiffs") allege that the action of the defendant, Hagblom Constructions (1984) Ltd. ("Hagblom") caused a fire in the plaintiffs building occurring January 5, 1997. The claim is advanced in contract and in tort. [3] The essence of the defendant\'s allegations in the third party claim may be characterized as follows:(a) In paragraphs 8 to 12 of the third party claim, the defendants allege that the actions or omissions of the City of Saskatoon\'s fire department either caused the plaintiffs\' loss, or contributed to it. This claim is made only against the City of Saskatoon, not William Hewitt. The defendants say that the fire department failed to properly fight the fire, and that they omitted certain actions prior to the fire that, supposedly, contributed to its spread. The defendants' claim for contribution and indemnity arises out of these paragraphs. (b) In paragraphs 13 and 14, the defendants advance their own claim, independent of the plaintiffs claim against the defendants. This claim is advanced against both the City of Saskatoon and William Hewitt. In these paragraphs the defendants allege that the third parties spoliated or destroyed evidence, and failed to assist the defendants in gathering evidence. [4] By notice of motion, the third parties ask that the third party claim be struck out. ISSUES (1) Do the provisions of s. 136.1(2) of The Urban Municipality Act, 1984, S.S. 1983-1984, c. U-11, and s. 34 of The Fire Prevention Act, 1992, S.S. 1992, c. F-15.001 prevent the defendants from taking proceedings against the third parties in this case and, if so, should the entire third party claim be struck out pursuant to Queen\'s Bench Rule 173(a)? (2) Should paragraphs 13, 14 and 16 be struck out, pursuant to Queen\'s Bench Rule 173(a), on the basis that these paragraphs do not disclose a reasonable cause of action in that the common law does not recognize a cause of action for the spoliage or destruction of evidence, nor for the failure to assist in the gathering of evidence, and, further, on the basis that the Third Parties did not owe a statutory duty to the defendants in this respect? (3) Should paragraphs 8 through 12 and paragraph 15 be struck out on the basis that the defendants have not obtained the leave of this Court to bring third party proceedings, as required by s. 7 of The Contributory Negligence Act, R.S.S. 1978, c. C-31? [5] Rule 173 of the Queen's Bench Rules provides: 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: (a) it discloses no reasonable cause of action or defence, as the case may be. It is well settled that substantial onus is placed upon the applicant in Rule 173(a) motion. [6] As stated in McKeague and Voroney, The Queen's Bench Rules of Saskatchewan: Annotated (Regina: Law Society of Saskatchewan, 1995), this Rule is codification of the court's power under its inherent jurisdiction to stay actions that are an abuse of process or that disclose no reasonable cause of action. [7] It is inherent in the jurisdiction of every court to ensure that its process is not used simply to harass parties through the initiation of actions that are obviously without merit. The summary procedure of the Rule is only appropriate to cases which are plain and obvious. [8] The purpose of Rule 173 is to save the court and the parties the cost, time and inconvenience of dealing with seriously defective or unmeritorious pleadings, claims or defences (See RoyNat Inc. v. Northland Properties Ltd., 1993 CanLII 8877 (SK QB), [1994] W.W.R. 43 (Sask. Q.B.)). [9] It has long been the practice of the courts not to strike out statement of claim under Rule 173 unless it is abundantly clear that the pleadings disclose no reasonable cause of action. [10] In Great Northern Railway Co. v. Cole Agencies Ltd. (1964), 1964 CanLII 321 (SK QB), 49 W.W.R. 153 (Sask. Q.B.), Disbery J., on an application to strike out statement of claim as disclosing no reasonable cause of action brought under Rule 154(a), the predecessor to the present Rule 173(a), said at pp. 155-56: It is quite clear from the authorities that pleading should only be struck out when the application is made under R. 154 or its equivalent elsewhere, where the case is clear, obvious and beyond doubt so that, in the words of Lindley, M.R., "any master or judge can say at once" that the pleading is insufficient. [11] The only documents to be considered on an application under Rule 173(a) are the notice of motion, the statement of claim itself and the particulars furnished pursuant to demand therefor, and any document which is referred to in the statement of claim upon which the plaintiff must rely for the establishment of his claim (Lackmanec v. Hoffman (1982), 1982 CanLII 2585 (SK CA), 15 Sask. R. 1; [1982] W.W.R. 714 (Sask. C.A.)). [12] On an application to strike out statement of claim on the ground that it discloses no reasonable cause of action, the court must assume that every allegation of fact in the statement of claim is true, even if it appears to be very unlikely allegation that will be difficult to prove (Schmeichel v. Lane (1982), 1982 CanLII 2471 (SK QB), 28 Sask. R. 311 (Sask. Q.B.); Davies v. Dustin (1980), 1980 CanLII 2013 (SK QB), Sask. R. (Sask. Q.B.)). [13] The court cannot consider the statement of defence on an application to strike out statement of claim under Rule 173(a) (B Contracting Ltd. v. Atamanenko, [1987] Sask. D. 3702-02 (Q.B.)). [14] The Saskatchewan Court of Appeal in Sagon v. Royal Bank (1992), 1992 CanLII 8287 (SK CA), 105 Sask. R. 133, reviewed the principles that should be applied on motion to strike out pleading. At pp.139-140, Sherstobitoff J.A. stated: In determining whether claim should be struck as disclosing no reasonable cause of action, the test if 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; 33 N.R. 304. 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. (N.S.) 22 (Sask. Q.B.); Lackmanec v. Hoffman and Wall (1982), 1982 CanLII 2585 (SK CA), 15 Sask. R. (C.A.). [15] This proposition was articulated by the Supreme Court of Canada in the case of Canada (Attorney General) v. Inuit Tapirisat of Canada, 1980 CanLII 21 (SCC), [1980] S.C.R. 735, in which it stated that the court should only strike out statement of claim "in plain and obvious cases and where the court is satisfied that the case is beyond doubt". (1) Do the provisions of s. 136.1(2) of The Urban Municipality Act, 1984, S.S. 1983-1984, c. U-11, and s. 34 of The Fire Prevention Act, 1992, S.S. 1992, c. F-15.001 prevent the defendants from taking proceedings against the third parties in this case and, if so, should the entire third party claim be struck out pursuant to Queen's Bench Rule 173(a)? [16] The essence of the third parties' position, on this issue, is that, subject to their duty to act in good faith, they cannot be found to be liable to the defendants in negligence. In this respect, the relevant portions of ss. 136.(2) of The Urban Municipality Act, 1984, read as follows: 136(1) council may: (a) by bylaw establish fire department or one or more fire brigades, and may by contract or otherwise provide for the prevention and suppression of fires and provide for services of any kind at the site of an emergency, including but not limited to: (i) fire prevention and protection; (ii) emergency response services; (iii) inspections of premises for conditions that may cause fire, increase the danger of fire or otherwise increase danger to persons or property. (iv) inspections for compliance with municipal fire prevention bylaws and The Fire Prevention Act, 1992; 136.1(1) For the purposes of this section, "firefighter" means person performing duties for an urban municipality, whether for wage or otherwise, pursuant to section 136 of The Fire Prevention Act, 1992 or regulations made pursuant to that Act. (2) No action lies or shall be instituted against firefighter for any loss or damage suffered by reason of anything in good faith done, caused, permitted or authorized to be done, attempted to be done or omitted to be done by the firefighter while performing his or her duties as firefighter. [17] The material sections in The Fire Prevention Act, 1992, are as follows: In this Act: (h) "local assistant" means: (i) in city, town, village, resort village or northern municipality where fire department is established, the fire chief or acting fire chief. 11 Every local assistant shall: (a) administer and enforce this Act within the local assistant's jurisdiction. 15(1) Every local assistant shall investigate, or cause to be investigated, the cause, origin and circumstances of every fire in the local assistant's jurisdiction. 34 No action lies or shall be instituted against the minister, fire inspector, municipality, fire department or member of fire department, or peace officer, where the minister, fire inspector, municipality, fire department or member of fire department, or peace officer is acting pursuant to the authority of this Act, the regulations or an order made pursuant to this Act, for any loss or damage suffered by reason of anything in good faith done, caused, permitted or authorized to be done, attempted to be done or omitted to be done, by any of them, pursuant to or in the exercise or supposed exercise of any power conferred by this Act or the regulations or in the carrying out or supposed carrying out of any order made pursuant to this Act or any duty imposed by this Act or the regulations. [18] characterization of the position of the third parties is that subject to their duty to act in good faith, they cannot be found to be liable to the defendants in negligence. [19] This section was judicially considered by Hrabinsky J. in the case of Hunters Trailer Marine Ltd. v. North Battleford (City), [1993] S.J. No. 634 (Q.L.) (Sask. Q.B.). Hrabinsky J. was faced with the interpretation of ss. 34(2) of The Fire Protection Act, 1980, S.S. 1979-80, c. F-15.01, s. 34(2). This section reads as follows: 34(2) No action lies against any municipality or against any member of fire department for any loss or damage suffered by reason of anything done with reasonable care or omitted to be done in good faith in carrying out the provisions of section 10. Althought that section has now been amended, the amendments, in my view, are not relevant to the issues in the case at bar. [20] Hrabinsky J. held that this statutory limitation does not nullify the action since determination must be made as to whether the defendants did what they did with reasonable care or omitted to do what was to be done in good faith. Hrabinsky J. states in part as follows: §9 In the Attorney General of Canada v. Inuit Taparisat of Canada et al., 1980 CanLII 21 (SCC), [1980] S.C.R. 735 at p. 740 (S.C.C.), the court stated: all the facts pleaded in the statement of claim must be deemed to have been proven. On motion such as this court should, of course, dismiss the action or strike out any claim made by the plaintiff only in plain and obvious cases and where the court is satisfied that "the case is beyond doubt". §10 The statement of claim clearly alleges that the individual defendants were employees of the corporate defendant and that they were negligent in the course of their employment which negligence resulted in loss to the plaintiff. §11 In Halsbury's Laws of England, 4th Ed., Vol. 16, p. 519, para. 753, there is the following: 753. Liability independent of contract of employment. As general rule an employee who commits tort is liable in damages to the person injured, and his liability is not affected by the existence of contract of employment or, where he commits the tort in the course of his employment and within the scope of his authority, by the existence of the corresponding liability of his employer for the same tort, since he is the actual tortfeasor. An employee cannot, therefore, excuse himself from liability for his own act on the ground that he did it solely in his capacity as the employee of another, and that, but for the existence of the contract of employment, he would not have done it at all. Thus, it is no defence to the employee that, in doing the act complained of, he was obeying his employer's express orders, or that his employer subsequently adopted or ratified it, unless the act is thereby deprived of its tortious character. Similarly, it is no defence that he himself gained no personal benefit by his tort, but that he acted solely on his employer's behalf and in his employer's interest; nor can he escape responsibility on the ground that he did not know and had no reason to know or to suspect that the act in question was tortious, unless the act is incapable of being regarded as tort in the absence of actual or imputed knowledge that it is wrongful. Even the fact that the employer who commanded the act to be done was innocent of any intention to do any wrong, and genuinely believed that he was entitled to command the employee to do it, does not excuse his employee if the act, when done, is in fact tort. §12 In recent decision of the Supreme Court of Canada, London Drugs Ltd. v, Kuehne and Nagel International Ltd. (1992), 1992 CanLII 41 (SCC), 97 D.L.R. (4th) 261 the majority decision held that the individual employees whose negligence resulted in loss to the plaintiff owed duty of care to the plaintiff and upheld the decision of the British Columbia Court of Appeal which held that both the employer and the individual employees were liable. The majority decision held that the question of whether duty of care arises will depend on the circumstances of each case. §13 find that the statement of claim discloses cause of action. The question of whether the individual defendants owed duty of care is matter to be determined by the trial judge and is not to be decided on summary application such as this. §15 This statutory limitation does not nullify the action since determination must be made as to whether the defendants did what they did with reasonable care or omitted to do what was to be done in good faith. Since have concluded that on its face the statement of claim discloses cause of action it is not appropriate to make any decision with respect to s. 34(2) of The Fire Prevention Act on an application pursuant to Rule 173. This is matter for the determination of point of law which will be determined by the trial judge unless the parties perceive this may be decided pursuant to Queen's Bench Rule 188. [21] The third parties submit that Hrabinsky J. was in error when he held that s. 34 did not nullify an action for omitting what was to be done in good faith. On the face of the statement of claim, it is submitted that the allegation of negligence for an omission to act cannot possibly have succeeded. It was argued that the court need not embark on determination as to whether the defendants' omissions were "in good faith" unless lack of good faith is raised in the statement of claim. [22] I agree with Hrabinsky J. Here in the third party claim it is alleged that the fire department of the City of Saskatoon was negligent in managing the fire and in the post-fire investigation. It is arguable on the pleadings that the third parties did not act in good faith in that it is alleged that they deliberately set out to suppress information and destroy evidence. On that basis alone I am satisfied that the defendants have an arguable case and that the third party claim discloses a reasonable cause of action. (2) Should paragraphs 13, 14 and 16 be struck out, pursuant to Queen's Bench Rule 173(a), on the basis that these paragraphs do not disclose reasonable cause of action in that the common law does not recognize cause of action for the spoliage or destruction of evidence, nor for the failure to assist in the gathering of evidence, and, further, on the basis that the Third Parties did not owe statutory duty to the defendants in this respect? [23] In my view, the allegations are relevant in respect to the contention that the third parties have not acted in good faith. If this is established then it is clear that the statutory limitations would not nullify the third party claim. (3) Should paragraphs through 12 and paragraph 15 be struck out on the basis that the defendants have not obtained the leave of this Court to bring third party proceedings, as required by s. of The Contributory Negligence Act, R.S.S. 1978, c. C-31? [24] It is conceded by the defendants that leave to commence the proposed third party claim is prescribed pursuant to s. of the act. The defendants have therefore served notice of motion requesting leave. This order is sought nunc pro tunc. [25] In Lepage v. Board of Education of Regina School Division No. (1996), 1996 CanLII 6908 (SK QB), 150 Sask. R. 233 (Sask. Q.B.) Zarzeczny J. applied the test prescribed in Saskatchewan Transportation Co. v. Royal Bank of Canada and Reid Crowther Partners Limited et al. (No. 2) (1986), 1986 CanLII 3086 (SK QB), 56 Sask. R. 157 (Sask. Q.B.) which requires the applicant to allege prima facie claim which, if established, would entitle the defendants to take proceedings against the third party. This is analogous to the case at bar. CONCLUSION [26] As the third parties have not established that it is plain and obvious that the impugned claim cannot succeed, the application is dismissed. [27] As to s. 7 of The Contributory Negligence Act, I hereby grant the defendants leave nunc pro tunc to bring third party proceedings against the third parties. [28] Costs of these application shall be costs in the cause.

An application to strike out the third party claim as not disclosing a reasonable cause of action. The plaintiffs brought a claim in contract and tort alleging Hagblom caused a fire in their building. The third party claim alleged negligence by the city's fire department in managing the fire and in the post-fire investigation. The third parties argued that, subject to their duty to act in good faith, they could not be found liable to the defendants in negligence. In issue was whether s.136.1(2) of the Urban Municipality Act and s.34 of the Fire Prevention Act prevented the defendants from taking proceedings against the third parties; whether certain paragraphs should be struck on the basis the common law does not recognize a cause of action for spoiled or destroyed evidence and failure to assist in gathering evidence on the basis the third parties did not owe a statutory duty to the defendants; whether certain paragraphs should be struck as the defendants had not obtained leave to bring third party proceedings as required by s.7 of the Contributory Negligence Act. HELD: The application was dismissed. Leave was granted nunc pro tunc to bring third party proceedings. (1)The third party claim disclosed a reasonable cause of action. It was not plain and obvious the claim could not succeed. It was arguable on the pleadings that the third parties did not act in good faith in that it was alleged they deliberately set out to suppress information and destroy evidence. (2)The statutory limitations will not nullify the third party claim if the allegations relevant to the contention that the third parties did not act in good faith are proven.

6_1999skqb18.txt

/jmj Docket No.: CA 155594 Date: 20001011 NOVA SCOTIA COURT OF APPEAL [Cite as: Lamont v. Moxon, 2000 NSCA 117] Glube, C.J.N.S.; Flinn and Oland, JJ.A. BETWEEN: KELLY LAMONT Respondent REASONS FOR JUDGMENT Counsel: David A. Grant, for the appellant A. Jean McKenna, for the respondent Appeal Heard: October 11, 2000 Judgment Delivered: October 11, 2000 THE COURT: Appeal and cross appeal both dismissed without costs as per oral reasons for judgment of Flinn, J.A.; Glube, C.J.N.S. and Oland, J.A. concurring. FLINN, J.A. (Orally): [1] This appeal is from decision of Justice Hamilton of the Supreme Court in an assessment of damages arising out of an automobile accident. The respondent admitted liability for driving his truck into the back of the appellant’s motor vehicle. The trial judge described the accident as “a very mild rear end collision.” [2] At the heart of this appeal is the finding of the trial judge that the accident in question did not contribute materially to the appellant’s present poor health, and that the accident caused only a mild aggravation of the appellant’s pre-existing, and major, back problem. The trial judge found the appellant’s evidence to be lacking in credibility. The medical evidence, she determined, did not support the appellant’s position that there is no other reason for his present medical problems but the accident in question. [3] The trial judge concluded: am satisfied Mr. Lamont suffered pain in his neck and back for relatively short period of time as result of the 1992 accident, which because of his already existing condition may have caused him more pain and anxiety than it would to person without an existing back problem. Accordingly, I award him $25,000.00 general damages for general pain and suffering. [4] The appellant is, essentially, asking this court to set aside the trial judge’s credibility findings against him, to take different view of the medical evidence than did the trial judge, and, ultimately, to attribute larger percentage of the appellant’s present health problems to the accident in question, with correspondingly higher assessment of damages against the respondent. [5] This court has repeatedly stated that the credibility of witnesses is matter peculiarly within the province of the trial judge. It would take strong and cogent reasons for this court to interfere with a trial judge’s findings as to the credibility of a witness who testified before that trial judge (see Travelers Indemnity Co. v. Kehoe (1985), 66 N.S.R. (2d) 434 per Macdonald, J.A. at p. 437). No such reasons are advanced by the appellant in this case. [6] The trial judge’s conclusion, that the accident in question did not contribute materially to the appellant’s poor health, is, largely, factual determination involving, among other things, the weight which the trial judge gave to the medical evidence before her. This court will not interfere with that conclusion unless the trial judge has made manifest error, has misunderstood the evidence, or drawn erroneous conclusions from it (see Toneguzzo-Norvell (Guardian ad litem of) v. Burnaby Hospital, 1994 CanLII 106 (SCC), [1994] S.C.R. 114). [7] There was ample medical evidence to support the trial judge’s conclusion that the accident in question did not contribute, in a material way, to the appellant’s present medical problems, and there is no basis, in law, upon which we can interfere with that conclusion. For the same reason, there is no basis in law upon which we should adjust, upwards, the trial judge’s assessment of general damages of $25,000.00. [8] The appellant also appeals the trial judge’s assessment of costs. The trial judge, in the exercise of her discretion, reduced the appellant’s costs (exclusive of disbursements) from $3,750. to $2,750. The appellant had maintained a claim of damages at over $625,000.00 in the face of a formal offer to settle from the respondent for an amount slightly lower than what the appellant ultimately received. That offer was increased, before trial, to an amount which proved to be in excess of what the appellant ultimately received. The trial judge applied no wrong principle in the exercise of her discretion to reduce the appellant’s costs, and this court will not interfere with her assessment of those costs. [9] The respondent cross appeals claiming that the trial judge’s award of $25,000.00, as general damages, is excessive and should be reduced. To sustain this cross appeal the respondent must demonstrate that the trial judge’s assessment of general damages at $25,000.00 is “so inordinately high that it must be wholly erroneous estimate of the damage” (see Nance v. British Columbia Electric Railway Company Ld., 1951 CanLII 374 (UK JCPC), [1951] A.C. 601 at p. 613). [10] While recognizing the particular pain and anxiety which the respondent was found to have caused to the appellant, and, at the same time, recognizing that a pre-existing condition was the major cause of the appellant’s present medical problems, the trial judge assessed the appellant’s general damages at $25,000.000. In our opinion, and in the circumstances of this case, that award cannot be said to be so far outside the range of damages for like cases as to be considered a wholly erroneous estimate of damages. [11] The appeal and cross appeal are both dismissed. There will be no order for costs. Flinn, J.A. Concurred in: Glube, C.J.N.S. Oland, J.A.

Liability was admitted for a very mild rear end collision. The trial judge found the plaintiff's evidence to be lacking in credibility and found that the collision did not contribute materially to the plaintiff's poor health. It only caused a mild aggravation of her pre-existing and major back problem. The trial judge assessed general damages at $25,000. The plaintiff's costs were reduced on the basis that she refused a formal offer to settle for slightly less than what she was awarded and refused a second offer which was increased before trial to an amount in excess of what she was awarded. The plaintiff appealed and the defendant cross-appealed. Appeal and cross-appeal dismissed. No strong and cogent reasons were advanced to warrant interference with the trial judge's findings on credibility. There was ample evidence to support the conclusion that the accident only caused a mild aggravation of the pre-existing condition and thus no basis upon which court could interfere with that conclusion or adjust upwards general damage assessment. Trial judge applied no wrong principle in exercising discretion to reduce plaintiff's costs. Award of $25,000 was not so far outside range of damages for like cases as to be considered wholly erroneous estimate of damages.

d_2000nsca117.txt

J. 2002 SKQB 144 Q.B.G. A.D. 2001 No. 330 J.C.B. IN THE COURT OF QUEEN’S BENCH JUDICIAL CENTRE OF BATTLEFORD BETWEEN: BORDER CREDIT UNION LIMITED Plaintiff/Respondent and IAN DALE KLARENBACH, SANDRA LORRAINE KLARENBACH and LLOYDMINSTER CREDIT UNION LIMITED Defendants/Applicant Bruce A. Knight for the applicant, Ian Klarenbach Miguel F. Martinez for the respondent, Border Credit Union No one appearing for the respondent, Sandra Klarenbach FIAT April 11, 2002 KRUEGER J. [1] After a decree nisi of foreclosure had issued, but before expiration of the redemption period, one of the defendant registered owners, Ian Klarenbach, applied for judicial sale of the mortgaged property, being the matrimonial home. The relief sought is for an order that the property be listed with private realtor for fixed time at an upset (listing) price of $120,000.00. Commission is to be payable on sale at the rate of six percent on the first $100,000.00 and three percent on any sum above that. The purchase monies are to be paid into court and applied as directed by the court. [2] The mortgagee, Border Credit Union, opposed the application and the co-owner, Sandra Klarenbach, did not participate in the hearing. The defendant, Lloydminster Credit Union, has no further interest in the property and was not served with the application. [3] Border Credit Union holds first mortgage on the property. As of December 4, 2001, the amount owing to the Credit Union was $99,873.82 plus costs. According to an appraisal filed in support of the foreclosure proceedings the property had market value of $119,000.00 on August 28, 2001. The property was listed for sale by the applicant on February 18, 2002. The listing realtor believes that it can be sold in four to six weeks for between $124,000.00 and $125,000.00 if shown to prospective buyers. After payment of the first mortgage, real estate commission and municipal taxes to the date of sale there would, no doubt, be modest surplus accruing to the registered owners. [4] The 90-day redemption period has now expired and subject to this application Border Credit Union is entitled to apply for final order of foreclosure. Any further delay that does not result in sale and payment of the mortgage in full, it was argued, will result in lost security value for the Credit Union. [5] In Industrial Development Bank v. Lees et al, (1970) 1970 CanLII 643 (SK CA), 75 W.W.R. 445 (Sask. C.A.), Culliton C.J. at page 452 stated: In my opinion the power of sale so conferred upon the courts, both of the Northwest Territories, and of the province, was such that it gave to these courts the right, in foreclosure proceedings, to make an order for sale whenever the court deemed it necessary or expedient to do so, notwithstanding that an order nisi had been issued. Statutory authority for judicial sale in mortgage foreclosure proceedings was contained in the Chancery Procedure Amendment Act, 1852 (Imp.) 15 16 Vict., c. 86. That Act was repealed in 1881 and replaced by O. 51, R.1, which Rule became law in the Northwest Territories by virtue of the Judicature Ordinance, No. 1893. In its modified form it is now found in s. 70 of The Queen’s Bench Act, S.S. 1998, c. Q-1.01. [6] The court’s entitlement to order judicial sale at any stage of foreclosure proceedings before a final decree issues is no longer questionable. See: Saskatoon Credit Union Ltd. v. Goertz et al (1989), 1989 CanLII 4446 (SK CA), 73 Sask. R. 81 (C.A.); Household Trust Co. v. 590188 Saskatchewan Ltd. et al (1994), 1993 CanLII 8955 (SK QB), 115 Sask. R. 187 (Q.B.). Deciding whether it is “necessary or expedient” within the meaning of s. 70 of The Queen’s Bench Act is, however, judicial exercise. [7] The married joint owners, Ian and Sandra Klarenbach, have been separated since May, 1999, and Sandra Klarenbach has exclusive possession of the property. They are involved in an acrimonious family law court action. Although the property was listed for sale by Ian Klarenbach in February, 2002, Sandra Klarenbach prevented every attempt by the realtor to show the property to prospective buyers. There is no reason to assume that she will be any more co-operative with a court-appointed realtor. As long as Sandra Klarenbach remains in possession of the property, judicial sale through realtor has little prospect of success. [8] Border Credit Union did not request immediate possession pursuant to Rule 439 of The Queen’s Bench Rules when applying for an order nisi of foreclosure. It does not now seek immediate possession. The applicant, Ian Klarenbach, is not entitled, in these proceedings, to a possession order. Sandra Klarenbach, it is expected, will remain in possession of the property until ordered to vacate. [9] Without some assurance that realtor, judicially appointed and authorized to effect sale of the property, will have reasonable access to the property, the order sought by the applicant is not expedient. In my view, judicial sale, in the circumstances of this case, is not realistic option at this time. Border Credit Union cannot be expected to endure further delay and deterioration of its security position without an undertaking by both registered owners that they will facilitate judicial sale. The material before me does not provide such assurance. On the contrary, there is no evidence that Sandra Klarenbach will co-operate in having the property shown to prospective buyers. [10] The registered owners have had ample opportunity since their separation to resolve their family property dispute. The foreclosure proceedings have been in progress for six months. This is not the proper forum to attempt to effect a family property settlement. The application is dismissed.

FIAT. After a decree nisi of foreclosure had issued but before expiration of the redemption period, one of the defendant registered owners (the former husband) applied for judicial sale of the matrimonial home. The joint owners separated in 1999 and are involved in an acrimonious family law court action. The wife has exclusive possession of the property. The Credit Union as first mortgagee opposed the application. The co-owner did not participate. HELD: The application was dismissed. 1)This is not the proper forum to attempt to affect a family property settlement. The husband was not entitled in these proceedings to a possession order. The wife prevented every attempt to show the property to prospective owners. There was no reason to assume she will be any more cooperative with a court appointed realtor. The Credit Union did not request immediate possession. 2)The court's entitlement to order a judicial sale at any stage of foreclosure proceedings before a final decree issues is no longer questionable. The court reviewed the history of the statutory authority for a judicial sale in a mortgage foreclosure proceedings. The 1852 Chancery Procedure Amendment Act was repealed in 1881 and replaced by Ordinance 51, Rule 1, which became law in the NWT by virtue of the Judicature Ordinance No.6 of 1893. It is now found in s.70 of the Queen's Bench Act in its modified form. Deciding whether it is 'necessary or expedient' within the meaning of s.70 of the Queen's Bench Act is, however, a judicial exercise.

8_2002skqb144.txt

1992 S.H. No. 1201‑46187 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: BARRY NEIL MOSHER ‑and- VICTORIA ALEXANDRA MOSHER HEARD: At Halifax, Nova Scotia, before The Honourable Justice F. B. William Kelly, September 28, 29, 30, 1993 DECISION: October 8, 1993 WRITTEN RELEASE OF ORAL DECISION: December 2, 1993 COUNSEL: Douglas C. Campbell, Solicitor for the Petitioner B. Lynn Reierson, Solicitor for the Respondent Kelly, J. (Orally) The major item in dispute between the parties in this divorce hearing is the amount of spousal and child support. The respondent, Ms. Mosher, is also seeking unequal division of the matrimonial assets and compensatory support or a lump sum award. On the matter of the petition for divorce; am satisfied that the ground has been proven and grant the petition for divorce. am further satisfied that there is no possibility of reconciliation. Mr. and Ms. Mosher have resolved most of the matters relating to the divorce and have signed Partial Minutes of Settlement, the relevant terms of which will incorporate into the Corollary Relief Order. These include provisions that Ms. Mosher will have custody of the three children of the marriage and Mr. Mosher will have reasonable scheduled access as outlined in the Minutes. The parties have agreed on the valuation and the physical division of the matrimonial assets and debts and agree that the physical division represents an unequal division in favour of Ms. Mosher to the extent of $16,868. Mr. Mosher agrees that if this difference is to be paid, that such payment can be deferred, and he is seeking an order specifying the terms and conditions of that deferral, including an interest rate or return on investment. Ms. Mosher seeks an unequal division or claim for compensatory support. Mr. Mosher has agreed to maintain life insurance at least at its present level and, in any event, sufficient to produce capital sum large enough to produce an income stream equal to the support payments ordered. Ms. Mosher also seeks some amount of funds to defray costs of tuition and retraining to allow her to take nine‑month tourism course to provide her with the skills she feels she needs to develop future career. Generally, to date, her limited work experience has been at unskilled minimum wage jobs to supplement the family income. BACKGROUND The parties met at the start of their university education and not long thereafter the respondent became pregnant and they began period of cohabitation. After approximately three years, in June of 1980, they married and had resided together until their separation in January of 1991. Their first child was born in February of 1979 and their other two children were born in December of 1980 and September of 1985. Mr. Mosher was an active athlete and intended career in physical education and Ms. Mosher planned an education and teaching career in home economics. Because of the economic realities and other pressures of their lives together and their childrearing responsibilities, they both had to abandon their career plans and enter the work force as untrained persons at low income jobs. MARRIAGE ROLES Both Mr. and Ms. Mosher are hardworking individuals who have made significant contributions to their family unit. They started their lives together when they were both about 20 years of age and they are now in their mid 30's. In the summer of 1979 they moved from their apartment residence to mobile home they had purchased in Elmsdale,. Nova Scotia, with downpayment based on $5,000 inheritance received by Ms. Mosher. Over the following few years they bought four‑unit building and pair of flats and, when they moved into new residence in the fall of 1981, they were renting six units, including the mobile home. Obviously, all of these developments reflect the initiative and dedication of the two parties to creating successful marriage economic unit. Mr. Mosher was the initiator of many of these decisions, and he spent much of his spare time in the early years dealing with the financial aspects of these units and with their maintenance. Ms. Mosher's role was to care for the home and the children and to contribute economically when she could. It is clear that at that time, and for the rest of their marriage, Mr. Mosher controlled and directed all things financial in all aspects of their marriage and other financial relationships. Mr. Mosher worked first at Sears and eventually at independent door‑to‑door sales. Ms. Mosher worked at part‑time retail sales until her second .child was born in December of 1980. She then concentrated on homemaking and childrearing duties for the next several years. From 1979 to 1983 Mr. Mosher sold windows and doors and also some insurance. He successfully took six‑month correspondence course on Canadian securities while still working and became employed as stockbroker in 1983. Although he has changed employers in the intervening years, his last change being in 1988, he continues in that occupation. Ms. Mosher worked pan‑time from 1983 to 1985 at low‑paying retail sales job two nights and one day week. This work ceased because of the birth of her third child. All her earnings went into the family bank account. She has performed most of the household work, including regular additional laundry work caused by the medical problems of two of the children. These problems create additional needs which cause some expense and are time‑consuming for their mother as custodial parent. Although Mr. Mosher has attended some activities of the children, particularly sports events, Ms. Mosher has been the parent principally responsible for their participation in the extensive activities of all three children. She advises the court that they wish to become involved in even more activities and that they are restricted in this by the funds that are presently available to her. In 1990 the parties, along with Mr. Mosher's mother, decided to purchase and operate coffee‑and‑donut type franchise called 'Treats'. Although the shareholdings are somewhat different, the parties have agreed that Mr. Mosher's mother has 25% interest and that the remaining 75% is divided between the parties. Mr. Mosher's mother works full‑time and Ms. Mosher works approximately one‑half day five days week, each with certain management responsibilities. Mr. Mosher's responsibility is to control the finances of the operation and to be responsible for the bookkeeping. Ms. Mosher is paid $6.50 an hour for approximately 20 hours week and does some. emergency replacement shifts if necessary. Her regular work hours occur when the children are in school. During non‑school hours the children also earn some spending money working at 'Treats'. The court was advised that the oldest daughter has saved about $200 from summer employment. The parties have decided to sell the 'Treats' franchise, paying off the business loan and dividing any remaining capital. The business, after operating for about two years, is not yet profitable venture. Mr. Mosher feels it is necessary that Ms. Mosher continue working at the franchise until it is sold and then to commence her retraining. Ms. Mosher is willing to continue her present employment until her course commences in January of 1994. After that date, she feels she can continue her management functions, but not her usual 20‑hour week because of her study and childrearing requirements. Ms. Mosher asks that the 'Treats' bank loan collateral mortgage be removed from the matrimonial residence that she will continue to occupy with the children. Mr. Mosher states he does not have the optional security to do this, and further that he has indemnified Ms. Mosher in this regard, in any event, by virtue of clause (6) of the Partial Minutes of Settlement. do not feel that have the jurisdiction to order the wife to work more than she has agreed to do in the Partial Minutes of Settlement, nor do find that have the jurisdiction to force the husband to find optional security to satisfy the bank on the 'Treats' loan. In summary, the role of Ms. Mosher in the marriage has been to be the primary caregiver for the children, to perform the major part of the homemaking chores, and to supplement the family finances by employment. In addition, Ms. Mosher has turned over some $15,000 in inheritance and other personal funds that she received during the marriage to the common marriage fund. Mr. Mosher was responsible for earning most of the salary income in the marriage and he has been concerned and interested parent for the children. He has been responsible for the control and administration of all the marriage funds. At the time of the separation Ms. Mosher did not have credit card nor personal credit record established. THE PROPERTY AND FINANCIAL CIRCUMSTANCES OF THE PARTIES For the past year Ms. Mosher has been paid support based on an interim consent order requiring spousal and child support of $2,500 month. Mr. Mosher has been paying some expenses, such as the mortgage, directly and paying the balance of the funds to Ms. Mosher. The parties have agreed that they can adjust these payments to the date of new order for support. In addition, Ms. Mosher has earned $700‑$800 month from her 'Treats' employment. Mr. Mosher notes that Ms. Mosher is not claiming the child tax benefit, although she does include it in her budget as income. Although did not have clear evidence on the income level where the Child Tax Credit is not available, it does appear that Ms. Mosher will not be entitled to it if she receives support award in the range she claims is needed by herself and her children. In her financial statement, she projects deficit in the amount of $6,000 per month. Ms. Mosher and the children remain in the matrimonial home, which carries mortgage of approximately $99,000 on value estimated at $134,000. As noted above, there also is collateral mortgage for the 'Treats' loan on this property in excess of the remaining equity. In addition to the furniture in the residence, Ms. Mosher's only other major asset is 1986 station wagon, which she states is in an unreliable condition and which incurs substantial maintenance costs. She has no pension entitlements from employment nor any R.R.S.P. investment or long‑term savings. She has not acquired any significant assets since the separation. At the time of the separation Mr. Mosher did not have any significant assets other than 1990 Mazda Miata vehicle valued at $13,500. Since the separation he has acquired modest residence, sailboat, recreational lot of land, $26,000 in R.R.S.P.s and $5,000 in stocks. His financial statement reports that the value of these additional assets, less loans for their purchase, is $51,500. Mr. Mosher has been able to finance these purchases because of dramatic increases in his income over the past few years. As an indication of this increase and the fluctuations of his income generally, his annual report of income is as follows: 1987 $125,000. 1988 53,600. 1989 68,850. 1990 36,450. 1991 109,200. 1992 123,750. 1993 (first months) 191,600. would note that Mr. Mosher's report of income includes some rental income and capital gains, but the most significant income‑producing factor is the commissions earned from stock sales. His actual 1993 commission for the nine‑month period is $211,600, but he estimates expenses of $20,000. This estimate is disputed by Ms. Mosher. In the absence of more specific evidence of actual expenses, tend to agree that this expense estimate is high. Mr. Mosher's evidence is that he has no guarantee of any fixed income and notes that commissions are paid based on value level of overall commissions earned for his employer company. In other words, they will pay the broker higher percentage share of the commissions he earns for the company if the total of the commission he earns for the company over fixed period is above certain level. The opposite is true if such earned commissions are in an amount less than level fixed by the employer. This system is referred to by Mr. Mosher as "commission grid". Thus, if broker earns sales for his company in the highest range, he will earn considerably higher percentage of the total commissions he has engendered than if his total commissions earned falls into the lower bracket. This, he states, adds to the range of fluctuation of his income as broker. As well, it is obvious that market forces outside broker's personal efforts can substantially affect his or her earned commissions. Among the factors which Mr. Mosher says affected his commission income during the period listed above are the following: 1. That in the period following 1987, commissions were reduced because of investor concern arising from the October 1987 "stock crash". Mr. Mosher indicated many previous stock investors deserted the stock market as unstable. 2. In 1988 he personally experienced $60,000 in trading losses and an additional $12,000 in interest carrying charges. 3. In 1989 he had trading losses and interest charges of $15,000. His commission income that year was $66,000. Also in 1989 he changed employment and, due to the efforts of his former employer, many of his clients did not move with him. He received 'signing bonus' of $30,000, partially to compensate him for lost commission due to his transfer of brokerage firms. Mr. Mosher's evidence was that this move required him to gradually rebuild his "asset base" with the resulting interim loss in commission income. 4. In 1990 his trading loss and interest carrying charges were $15,000. 5. In 1991 he had commission income of $77,000 and capital gain of $35,600. 6. In 1992 he participated in the privatization of the Nova Scotia Power Commission, which he described as the largest stock issue in Canadian history. He estimated his involvement earned him $30,000 over few weeks. 7. In 1993 almost an equal amount was earned by the sell‑off of Nova Scotia Power Corporation shares with clients taking profits because of an unusual or special feature of that stock ownership. Also in 1993 he directed clients to purchase shares in particular company, whose share value eventually quadrupled. At one point his clients owned 10% of the issued shares and on one block sale he sold 200,000 shares at $8 per share. Mr. Mosher stated he had never played such an impact role in the market before and believed it would not be routine occurrence. His evidence was that this contributed $65,000 to $70,000 to his commission income in that period. The thrust of Mr. Mosher's submission was that his income is so volatile that within short period of time his income could be also dramatically reduced. Counsel for Ms. Mosher has noted that, to the extent that past income is relevant in determining spousal support, adjustments should be made to the past income to reflect current purchasing power of those past amounts. For example, she notes that the 1987 income of $125,000 has present purchasing power of $153,272. find this to be relevant consideration in the determination of support. SUPPORT SPOUSAL, CHILD AND COMPENSATORY Counsel have brought to my attention many authorities which are relevant in determining the law applicable to spousal support. However, all of these authorities must now be read in the reflection of Moge v. Moge (1992), 1992 CanLII 25 (SCC), 43 R.F.L. (3d) 345 (S.C.C.). In Moge, L'Heureux‑Dube, J.A. speaking for the majority, emphasized that husband's obligation to support his wife was dependant on factors set out in the Divorce Act, R.S.C. 1985, c. and not upon the trilogy cases Pelech v. Pelech, 1987 CanLII 57 (SCC), [1987] S.C.R. 801, Richardson v. Richardson, 1987 CanLII 58 (SCC), [1987] S.C.R. 857 and Caron v. Caron, 1987 CanLII 59 (SCC), [1987] S.C.R. 892 which advanced principles which should be restricted to consensual situations. In Moge the court found that the "needs and means" test is not the exclusive basis for determining spousal support under the 1985 Divorce Act. Although Moge dealt with variation application and s. 17 of the Act was applied, the same four factors recited in s. 17 are repeated in s. 15 and should be applied in like manner when dealing with claim for spousal support. These factors are listed in s. 15(7) as follows: (7) An order made under this section 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 the obligation apportioned between the spouses pursuant to subsection (8); (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. The other subsections of s. 15 relevant to this application are as follows: (2) court of competent jurisdiction may, on application by either or both spouses, make an order requiring one 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 (a) the other spouse; (b) any or all children of the marriage; or (c) the other spouse and any or all children of the marriage. ...................... (4) 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. (5) In making an order under this section, the court shall take into consideration the condition, means, needs and other circumstances of each spouse and of any child of the marriage for whom support is sought, including (a) the length of time the spouses cohabitated; (b) the functions performed by the spouse during cohabitation; and (c) any order, agreement or arrangement relating to support of the spouse or child. In Moge, at p. 275‑277, L'Heureux‑Dube, J.A. approves of the authorities who argue that judicial emphasis in spousal support should shift from the narrow emphasis on 'needs' and 'capacity to pay', particularly in situations where one of the spouses has some means, either an asset base or income potential. These authorities stress that the four objectives four objectives of s. 15(7) and 17(7) can be interdependent and that no single one of them should be unduly emphasized. Although economic self‑sufficiency should be sought by former spouses where practicable, it should not be considered the dominant factor. In Moge Madame L'Heureux‑Dube discussed the intention of Parliament in enacting s. 15(7) and s. 17(7) of the Act and at p. 380‑381 stated: It would be perverse in the extreme to assume that Parliament's intention in enacting the Act was to financially penalize women in this country. And, while it would undeniably be simplistic to identify the deemed self‑sufficiency model of spousal support as the sole cause of the female decline into poverty, based on the review of the jurisprudence and statistical data set out in these reasons, it is clear that the model has disenfranchised many women in the courtroom and countless others who may simply have decided not to request support in anticipation of their remote chances of success. The theory, therefore, at minimum, is contributing to the problem. am in agreement with Professor Bailey, at p. 633, that: 'The test is being applied to create clean break between the spouses before the conditions of self‑sufficiency for the dependent partner have been met, and will undoubtedly cause an increase in the widespread poverty (at least relative poverty) of women and children of failed unions' (Emphasis added.) In the result, am respectfully of the view that the support model of self‑sufficiency which Mr. Moge urges the court to apply, cannot be supported as matter of statutory interpretation, considering, in particular, the diversity of objectives set out in the Act. She subsequently reviewed the extensive academic literature on the general subject, much of which urged change from most past approaches to spousal support, and she referred to comments of Judge Abella (as she then was) at pp. 382‑383 of Moge: The law should have two primary objects. First, it should adopt philosophy of interspousal maintenance that does not tend to compel sexually‑determined mode in which marriage functions are divided, leaving it to the market place of social custom as to how individuals will arrange their marriages in future. Second, it should ensure, as far as it is able, that the economic disadvantages of caring for children rather than working for wages are removed. ... division of functions between marriage partners, where one is wage‑earner and the other remains at home will almost invariably create an economic need in one spouse during marriage. The spouse who stops working in order to care for children and manage household usually requires financial provision from the other. On divorce, the law should ascertain the extent to which the withdrawal from the labour force by the dependent spouse during the marriage (including the loss of skills, seniority, work experience, continuity and so on) has adversely affected that spouse's ability to maintain himself or herself. The need upon which the right to maintenance is based therefore follows from the loss incurred by the maintained spouse in contributing to the marriage partnership. If the functions of financial provision, household management and child care are divided in any particular way between husband and wife, the law should characterize this as an arrangement between the spouses for accomplishing shared requirements of the marriage partnership according to their preferences, cultural beliefs, religious imperatives, or similar motivating factors. spouse who does one of these things should be seen as freeing the other spouse to perform the remaining functions." (Emphasis added.) (Law Reform Commission of Canada, at pp. 22‑25) The Supreme Court majority in Moge thus directs the approach that should be taken in spousal support situations where spouse has made substantial non‑economic contribution to the marriage and suffers an economic disadvantage on marriage break‑up. At pp. 383‑384, L'Heureux‑Dube, J.A., observed: Women have tended to suffer economic disadvantages and hardships from marriage or its breakdown because of the traditional division of labour within that institution. Historically, or at least in recent history, the contributions made by women to the marital partnership were non‑monetary and came in the form of work at home, such as taking care of the household, raising children, and so on. Today, though more and more women are working outside the home, such employment continues to play secondary role and sacrifices continue to be made for the sake of domestic considerations. These sacrifices often impair the ability of the partner who makes them (usually the wife) to maximize her earning potential because she may tend to forgo educational and career advancement opportunities. These same sacrifices may also enhance the earning potential of the other spouse (usually the husband), who, because his wife is tending to such matters, is free to pursue economic goals. This eventually may result in inequities. Both counsel have referred me to other authorities, many of which have been helpful. Many of these deal with support situations where the husband had high level of income and principles relating to the level of support were discussed. These include Linton v. Linton (1990), 1990 CanLII 2597 (ON CA), 30 R.F.L (3d) (Ont. CA), Carmichael v. Carmichael (1993), 1992 CanLII 2496 (NS CA), 115 N.S.R. (2d) 45 (N.S.S.C.,A.D.), and Heinenann v. Heinenann (1989), 91 N.S.R. (2d) 36 (N.S.S.C.,A.D.). In Heinenann the Appeal Division of the Nova Scotia Supreme Court (as it then was) reviewed the disparate case law on the subject of appropriate principles to apply in spousal support situations. The court presaged Moge by adopting theory of support based on compensating loss attributable to the roles adopted by the spouses in the marriage. Hart, J.A., speaking for the court, engaged in an exhaustive review of the often conflicting cases and principles relating to spousal support. He discussed the changing roles of spouses in marriage and noted that spousal support should not necessarily be used to equalize the standard of living of the parties. He recognized that it would be unlikely in many situations for the dependent spouse, often the wife, to have the skills or opportunity to enter the work force at level she would have gained but for leaving the work force and altering her career curve. At p. 273 he stated as follows: As mentioned earlier, not all marriages are or will be of this modern kind and there will be those of the traditional type in which one partner, usually the wife, sacrifices her personal economic advancement for that of her husband and both parties choose that she should devote herself to the raising of the children and the advancement of the family unit. If this type of marriage lasts for long period of time, the cases referred to above recognize that the economic disadvantages incurred by the wife should be redressed upon dissolution of the marriage. If, as direct result of the marriage, she is left with no or limited marketable employment skills, the courts seem to think that she is entitled to reasonable standard of living to the extent to which her spouse is able to pay. It seems to me that this standard should approximate that which she would have been able to meet had she chosen to follow her own career goals rather than the marriage, but should not be wholly unrelated to that which she enjoyed prior to the dissolution of the marriage. It is in situations such as this that trial judge has to utilize great ingenuity in determining the reasonable standard of living to which the wife is entitled and in deciding what factors should be included in reaching this conclusion. If the wife is able to earn some income but as result of lengthy marriage is unable to earn enough to meet her needs for reasonable standard of living then, in my opinion, the husband is responsible to supplement her income to the extent necessary to meet that standard. The most difficult cases will arise when the dependent spouse is still of an age when self‑sufficiency to reasonable standard of living could be maintained by acquiring or reacquiring skills or training acceptable to the employment market. Here the judge will have to strike balance between the position of temporal limit on maintenance to encourage the acquisition of self‑sufficiency and the allowance of unlimited maintenance to cover the shortfall in the spouse's employability. It will be up to the judge to determine the practicability of obtaining economic self‑sufficiency under s. 15 of the Divorce Act and whether time limitation should be used to encourage that status." Although it may be argued that some of the principles of support espoused in Heinenann are now altered by Moge, the above comment regarding the function of trial judge has not been substantially altered. The change, if any, may be greater recognition in Moge of the numerous financial consequences to custodial parent not reflected in the direct costs of supporting child, and greater emphasis on the negative financial consequences to the parent who leaves career path for the sake of the family unit. Included in the consideration would be such factors as missed promotions, loss of seniority, and lack of access to fringe benefits. It is clear from Moge that the application of spousal support principles, as enunciated in the Divorce Act, do not guarantee pension or certain standard of living to spouse on marriage break‑up. The trial judge is left with exercising her or his discretion to determine the effect of the marriage in impairing or improving each spouse's future economic prospects and attempting to achieve an equitable sharing of the economic consequences of the marriage breakdown. In exercising its discretion, the court will consider the specific circumstances of the case before the court, including the asset base of each party, their abilities, their education and training, their capacity to enter the work force, their present prospects in the work force, their continuing childcare responsibilities, and generally their roles in the marriage and how those roles have affected the above factors as outlined in Moge. In applying the above considerations and s. 15(7) generally to the case before me, make the following findings of fact: 1. Ms. Mosher has spent most of her adult years in the relationship and has totally subsumed her career aspirations to her role in caring for the home and childraising. 2. She has contributed all of the economic resources she received during the course of the relationship to the family economic unit. 3. Ms. Mosher's attempts at self‑sufficiency will be further affected over the medium‑term future by her childcare obligations. 4. When she has reached an age that these responsibilities will be so lessened that she can devote most of her efforts at developing career in any way equivalent to her original career intentions, she will be considerably restricted by her age and her time left in the work force. 5. Ms. Mosher is entitled to reasonable retraining opportunities. 6. Ms. Mosher does not have, and has little likelihood of developing on the basis of her own resources, any significant security provisions for her ..irement years. 7. Mr. Mosher has, through his own considerable efforts, and with the substantial assistance of Ms. Mosher by virtue of her marriage role, developed highly successful career path which will likely continue into the foreseeable future. 8. Mr. Mosher's income will continue to fluctuate depending in part on factors outside his control. However, for the foreseeable future, pattern of earning at very high level can be anticipated. 9. Neither of the parties have built up considerable asset base and Ms. Mosher will have an ongoing need to maintain or replace her present asset base, to the benefit of both herself and the children. This principally refers to the need for maintenance on the residence, replacement of the motor vehicle, and the establishment of some form of savings for these and other unexpected purposes. As consequence of these findings and applying the spousal support principles outlined in Moge, have no difficulty concluding that Ms. Mosher's withdrawal from the work force, except for low‑wage, unskilled jobs, has significantly adversely affected her ability to maintain herself. Even with the retraining proposed, which only qualifies her for low‑wage employment, there will be need for continual spousal support in some measure, depending on her future career development. As well, Ms. Mosher's future childcare responsibilities will continue to affect her career development for several years. It is not disputed that the children are entitled to child support and Mr. Mosher acknowledges willingness to pay reasonable support for his children. Counsel for Mr. Mosher submits that the interim joint spousal and child support of $2,500 accomplished this end as it was an agreed amount based on the low‑income years just prior to the break‑up. He also submits that these funds' have allowed Ms. Mosher and the children to substantially continue their pre‑separation lifestyle. Counsel for Ms. Mosher argues that the children are entitled to enjoy lifestyle that reflects their father's substantial increase in disposable income. She also argues that the older children have moved into the more expensive teen years since the break‑up, noting that one has grown five inches and another eight inches in that period, thus incurring the consequential costs of such physical changes. To Mr. Mosher's credit, he agreed in cross‑examination that his children should share in his increased income, but he continues to reject that Ms. Mosher should do so. Ms. Mosher has filed with her financial information "children's budget" which is intended to reflect the added costs of childcare. Her total for present expenses in this category is $1,570 and her proposed budget for these expenses is $3,070. Although most of these proposed expenses are not unrealistic, would note that she assigns over $1,000 to the children's housing expense, figure almost equal to the mortgage charge on the matrimonial residence where they now reside and which she intends to retain. In all, am satisfied that the children are now living relatively modest lifestyle and that they are vibrant, active and intelligent children whose lives would be enriched by an improved lifestyle. have unchallenged evidence that there are number of activities in which they wish to participate where their mother's available resources restrict participation. Section 11 of the Divorce Act authorizes the court to make support orders "having regard to the conduct of the parties and the condition, means and other circumstances of each of them." The section provides authority for support orders to pay the maintenance of the other spouse, the children, or sum for their combined maintenance. Section 15(8) of the Act provides that both parents have joint responsibility to provide for their children. Here, the major part of Ms. Mosher's contribution will be her personal efforts and Mr. Mosher's principal contribution will be financial. The children must therefore rely substantially on their father for most of their financial needs. Mr. Mosher is seeking division in the support payments so that portion will be designated for Ms. Mosher and portion for the children. find such division at this stage of Ms. Mosher's earning capacity to be artificial and unrealistic. She and the children are an integrated economic unit with only the more obvious child expenses of clothing, entertainment and education easily separated. The youngest child is now eight years of age and the oldest is 14. As the children are considered candidates for post‑secondary education, it is unlikely that this economic unit will change for several years. It seems to me to be therefore appropriate to award single payment of support incorporating spousal and child maintenance. In determining an adequate sum for this award, the principal factors are the earnings of the parties and their reasonable proposed expenses. have already reviewed incomes and noted the particular difficulty of weighing the factor of Mr. Mosher's fluctuating income. At trial his counsel had proposed formula for maintenance which adjusted support payments to reflect fluctuations in both their incomes. Counsel for Ms. Mosher rejected the specific proposal as inadequate and wrong in its principal details. If an appropriate formula could have been agreed upon, cannot help but believe it would have been the most adequate resolution. However, must deal with the reality of Mr. Mosher's significant income variations as major factor in determining the support payments. reject that it would be equitable for support payments to be based on his nine‑month 1993 income of $211,000, less expenses. This is too clearly an exceptional amount based on his historic income pattern. However, his income in recent years since the separation has shown marked trend upward and it is appropriate that his children and his wife should share in the benefits of this increase. have reviewed at length the expense budget of both parties and for the most part they are both reasonable. Evidence discloses that both parties had made some minor bona fide errors in their estimates. The principal adjustment have considered to Ms. Mosher's proposed expenses are repayment amounts on the $25,300 loans for her legal expenses. These amount to $312 month. These are valid and existing obligations, but her costs are at least partially claimable as part of this action. therefore feel that the amount assigned for their payment is an inappropriate expense. note as well that she proposes savings at level of $100 month, and find that this is not sufficient, particularly for purposes of her long‑term security. Mr. Mosher's expense budget includes approximately $1,200 month for R.R.S.P. and stock purchases and $1,000 month for loans, loans which principally were taken out for luxury items purchased since the separation. As noted above, he has developed equity from purchasing these assets since the separation. His expenses total, not including these loans and excluding tax, less than $3,000 month. After considering all of these factors, I am satisfied that an appropriate spousal and child support amount would be $4,500 per month. Because Ms. Mosher will not be able to work to any significant extent during her nine‑month training period and still adequatelyperform her home and childcare duties, a further $500 per month will be payable as additional support during that period. EQUALIZATION CONSIDERATIONS This is situation where Mr. Mosher has maximized his earning potential during the course of the marriage while Ms. Mosher has significantly restricted her career development by accepting primary responsibility for the homemaking and childcare duties. By virtue of the agreed custody arrangement, this economic limitation will continue. In all, this has and will continue to affect her capacity to provide for her future security. In Legere v. Legere, (N.S.S.C.,T.D.), December 22, 1992, (unreported) (1201‑45096), at page Davison, J. noted that equalization can be achieved by more than property division under the Matrimonial Property Act. His stated authority was Moge and refer to the words of L'Heureux‑Dube at p. 43 of that decision: Equitable distribution can be achieved in many ways: by spousal and child support, by the division of property and assets, or by combination of property and support entitlements. But in many, if not most, cases the absence of accumulated assets may require that one spouse pay support to the other in order to effect an equitable distribution of resources. This is precisely the case here, as the parties are not wealthy; for the most part, all they appear to possess are their respective incomes. Fair distribution does not, however, mandate minute, detailed accounting of time, energy, and dollars spent in the day‑to‑day life of the spouses, nor may it effect full compensation for the economic losses in every case. Rather, it involves the development of parameters with which to assess the respective advantages and disadvantages of the spouses as result of their roles in the marriage, as the starting point in determining the degree of support to be awarded. This, in my view, is what the Act requires. On this matter, refer as well to MacNeil v. MacNeil (N.S.S.C.), June 25, 1993 (unreported). Unequal division of matrimonial property is permitted when the court finds that an equal share would be unfair or unconscionable considering the various factors listed in s. 13 of the Matrimonial Property Act. have no difficulty finding that this fact situation overcomes the presumption of equal division considering all those factors, more particularly s. 13(d)(e)(f)(g)(h)(I) and (1): 13 Upon an application pursuant to Section 12, the court may make division of matrimonial assets that is not equal or may make division of property that is not matrimonial asset, where the court is satisfied that the division of matrimonial assets in equal shares would be unfair or unconscionable taking into account the following factors: ... (d) the length of time that the spouses have cohabitated with each other during their marriage; (e) the date and manner of acquisition of the assets; (f) the effect of the assumption by one spouse of any housekeeping, child care or other domestic responsibilities for the family on the ability of the other spouse to acquire, manage, maintain, operate or improve business asset; (g) the contribution by one spouse to the education or career potential of the other spouse; (h) the needs of child who has not attained the age of majority; (i) the contribution made by each spouse to the marriage and to the welfare of the family, including any contribution made as homemaker or parent; .... (I) the value to either spouse of any pension or other benefit which, by reason of the termination of the marriage relationship, that party will lose the chance of acquiring. Ms. Mosher shall have the benefit of that unequal division of the matrimonial property to the extent of $16,868. However, do not feel this resolves the inequity of their respective economic situations. Pursuant to s. 15(a) of the Divorce Act lump sum and periodic sum may both be awarded. am satisfied that this is fact situation consistent with the support principles in Moge where equality can be met by the payment of lump sum to Ms. Mosher which will assist her in retraining and in providing some future security. Her needs in this respect are not totally resolved by the unequal division and support consequences that have made above. This support for Ms. Mosher is in part compensation for the inequality which occurred because she has not been earning seniority, promotions, accumulating pension, and achieving employee benefits available had she been an active member of the work force at her level of capacity. I find that this continued inequality can be reflected by a compensatory or lump sum award of $18,000, to be paid in three annual payments of $6,000, commencing on November 30, 1993. Taking into consideration all of the comments of counsel and the material that has been filed with me and my knowledge of the case, award costs to the respondent, who has been substantially successful, in the basic, scale category, on the basis of an amount involved of $150,000. J. Halifax, Nova Scotia

The parties lived together for 14 years and had three children, aged eight, 13 and 14. The petitioner always worked and eventually became a successful stockbroker. The respondent was employed part-time doing minimum wage jobs and was responsible for the household duties and raising their children. The petitioner's annual income was $50,000 at the time of separation, but escalated to $200,000 in 1992 and was prone to great fluctuation. The respondent was to have custody of the children. She sought spousal and child support and an unequal division of assets. Ordering support and an unequal division of assets. The court extensively reviewed the case of Moge v. Moge (1992), 43 R.F.L.(3d) 345 (S.C.C.) and found that marriage and child care responsibilities hinder a wife's role in the workplace. The court awarded $4500 per month as spousal and child support, plus an additional $500 while the wife retrained. The court considered this an appropriate case for an unequal division of matrimonial assets in the respondent's favour. Finding that the awards were still not sufficient to satisfy the respondent's needs, a lump sum award of $18,000 was ordered. On appeal.

c_1993canlii4474.txt

J. QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2005 SKQB 272 Date: 20050609 Docket: Q.B.G. No. 158/2005 Judicial Centre: Battleford BETWEEN: LANDSWEST SCHOOL DIVISION NO. 123 Counsel: L. K. Neil for the applicant H. J. Neufeld for the respondent FIAT WILKINSON J. June 9, 2005 [1] The applicant, Landswest School Division No. 123, asks for a vesting order regarding a presently unsubdivided parcel of land (proposed Parcel G) located within the SW 15-37-28 W3M owned by the respondent, Neil Klein. As part and parcel of its request for vesting order, the School Division seeks an order directing the Registrar of Titles to register the Plan of Proposed Subdivision with respect to Parcel and to issue Transform Approval Certificate. The requested relief cannot be provided unless the Court has authority to order that a subdivision of land be effected outside the requirements of The Planning and Development Act, 1983, R.S.S. 1983-84, c. P-13.1. [2] The issue arises in rather complex fact situation. In 1994, the School Division’s predecessor (the Kerrobert School Division #44) sold 7.5 acre parcel of land to purchasers (the Flads), in the belief it was selling an existing parcel of land commonly known as “the old St. Mary’s School site”. The property that the School Division believed it was selling to the Flads never legally existed as separate parcel, and was in fact located within quarter section owned by one Ronald Erker [SW 15-37-28 W3M]. [3] The parcel actually conveyed by the School Division to the Flads (Parcel F) is cemetery formerly owned by the Episcopal Corporation of Saskatoon. The Episcopal Corporation had previously transferred their cemetery, Parcel F, to the School Division operating under the same mistaken belief, namely that Parcel was the old St. Mary’s School site. [4] There is some evidence indicating that predecessor in title to Mr. Erker had donated part of the St. Mary’s School site (4 acres) to the School Division’s predecessor (Kerrobert School Division #44) in 1946, and subsequently sold them the balance (3.5 acres) in 1961 but the school site was never properly subdivided or transferred. As the school was built directly adjacent to church (Parcel D) and cemetery (Parcel F) owned by the Episcopal Corporation, the confusion was shared by the church. [5] The Flads have been in occupation of proposed Parcel G, using the property as residence and constructing corrals for use in their livestock operation. In addition to their lack of title, they failed to obtain development permit before making improvements to the site. As such, some of their subsequent difficulties were of their own making, and not solely ascribable to the mistakes of title. The property they paid $12,500 for is now, according to the Flads, worth $90,000 or more. [6] When the error first came to light in 1995, the School Division arranged to purchase proposed Parcel from Ronald Erker, the registered owner, for $5,600. This agreement was concluded in 1996, conditional on subdivision approval, which the School Division agreed to obtain at its own cost. The agreement was further conditional upon the Flads transferring title to Parcel back to the School Division. This agreement was executed by Mr. Erker and the Kerrobert School Division #44. Neither the Flads, nor the Episcopal Corporation were involved as parties to the agreement, although presumably the School Division intended to effect reconveyance of Parcel to the rightful owner. No caveat was registered regarding this agreement. [7] The School Division proceeded to obtain Proposed Plan of Subdivision with respect to Parcel G. The Planning and Development Act, 1983 and the Subdivision Regulations, R.R.S., c. P-13.1, Reg. governed the subdivision of land in Saskatchewan, as they continue to do to the present time. Pursuant to s. 140(1) of the Act, proposed subdivision must comply with any local zoning bylaw, in addition to the Act and Regulations. [8] Section 15 of the Subdivision Regulations prohibited approval of the proposed Parcel G, as it was being used for an intensive livestock operation and livestock facilities were located within 300 metres of land used for residential purposes (Parcel D, the former church, now owned by Pius Baier). Mr. Flad’s corrals were approximately 125 metres from the Baier residence. Therefore, before subdivision approval could be granted, the Flads were required to obtain permit for their livestock facilities under The Pollution (by Livestock) Control Act, 1984, S.S. 1983-84, c. P-16.1 (repealed by 1995, c. A-12.1) either by securing the consent of Mr. Baier to the use as an intensive livestock operation, or, alternatively, by relocating their corrals away from his property. [9] Further, under the Zoning Bylaw for the RM of Eye Hill No. 382, the Flads’ intended use of the site was “discretionary use” which could only be permitted by special council resolution. Council consented to the proposed subdivision conditional, among other things, upon Mr. Flad obtaining such an agreement from Mr. Baier. Mr. Baier refused to consent. [10] Mr. Flad then took the view the School Division should purchase additional lands from Mr. Erker to permit Mr. Flad’s corrals to be relocated away from Parcel D, rather than being removed entirely. Effectively, he wanted 21-acre parcel, rather than the 7.5 acre parcel originally purchased, and apparently intended to enlarge the size of his relocated corrals in the process. [11] In an effort to resolve the impasse, the Municipal Development Branch made an alternate suggestion that would see corrals relocated further south, but stay roughly the same size. This would involve the creation of 15.5 acre parcel through metes and bounds description and would extend the south boundary of proposed Parcel by 1,411 feet. The Municipal Development Corporation was of the view that might pass muster if Council agreed to classify the use of the site as farmstead or non-residential parcel and Mr. Flad was advised he could apply to the R.M. to discuss his options. [12] It appears Mr. Flad’s last position was to insist on the transfer of proposed Parcel G, saying the corrals were totally separate issue and he would deal with the R.M. Council once the 7.5 acre parcel constituting proposed Parcel was transferred to him. Obviously that could not be done, as proposed Parcel was in contravention of the Act, the regulations and the Zoning bylaw. [13] The Municipal Development Branch then attempted to have all the interested parties negotiate an agreement in order to avoid the expense and delay of legal proceedings. Unfortunately, before that process got underway, Mr. Erker sold his lands to Neil Klein of Provost, Alberta. The offer to purchase of April 5, 1997, contained the following oblique terminology in the paragraph dealing with what the purchase price included. It said: ...not included yard subdivision on SE quarter and land of parcels on SW quarter as known by buyer. [14] Despite possible indication to the contrary (depending on the eventual interpretation to be placed on the foregoing wording), Mr. Klein maintains he is bona fide purchaser with no notice of the Flads’ interest in the land. Mr. and Mrs. Flad proceeded to register caveat on May 29, 1997, claiming an interest in proposed Parcel G. Mr Klein initiated complaints about the Flads’ livestock operations and the damages it was causing to his land. He was not prepared to consent to the proposed subdivision and Municipal Development Branch closed its file. [15] Proceedings were taken by Mr. Klein to lapse the Flads’ caveat. According to the title, judge’s order was obtained on December 18, 1997, continuing the caveat until further order of the Court. The School Division decided to await the outcome of “third party actions”. No other information is provided regarding the nature of those other proceedings, whether there were other parties added, or what the pleadings involve. The School Division advises that in seven years nothing has been resolved, prompting them to make this application. Mr. Klein opposes the application saying he is bona fide purchaser without notice of the Flads’ interest and relying on the indefeasibility of his title. [16] In 597383 Saskatchewan Ltd. (c.o.b. Peter's Sewer Service) (Trustee of) v. 614630 Saskatchewan Ltd. (c.o.b. Peter's Sewer Service), 2003 SKQB 69 (CanLII), (2003), 230 Sask. R. 213 (Q.B.), Zarzeczny J. set out the Court’s jurisdiction to deal with vesting orders, saying: Although the court tentatively concluded that s. 109 of the new Land Titles Act, 2000 combined with ss. 12 and 65 of The Queen's Bench Act, 1998, S.S. 1998, c. Q-1.01 are not sufficient authority to support the granting of vesting order in the circumstances before the court, nevertheless the court is now satisfied that Regulation 6.5 of The Land Titles Conversion Facilitation Regulation to the new Land Titles Act, 2000 does so. In substance, the Regulation parallels the nature, extent, purpose and intent served by the vesting order provisions contained in the former s. 87. The only question remaining is whether or not the discretion to grant vesting orders should appropriately be applied in the circumstances of this case. Because of the conclusions that have reached based upon the materials filed as previously referred to respecting the absence of adverse interests nor any interest in the registered owner or any subsequent encumbrancer or other creditor with respect to the equity of redemption conclude that this is an appropriate case to grant the relief requested (see Clarkson Co. Ltd. v. Credit Foncier Franco Canadien (1984), 1984 CanLII 2444 (SK QB), 37 Sask. R. 295 (Sask. Q.B.), Clarkson Co. Ltd. v. Credit Foncier Franco Canadien (1985), 1985 CanLII 2651 (SK CA), 44 Sask. R. 151 (Sask. C.A.). [17] In Arndt Estate v. First Galesburg National Bank and Trust Co., 2001 SKQB 234 (CanLII), (2001), 206 Sask. R. 261 (Q.B.), Hunter J. reviewed the governing criteria for the exercise of the court’s authority to make vesting order. They are: (i) that the facts are not in dispute; (ii) that there is no question of the right of the applicant; (iii) that there is no other available or reasonably convenient remedy or procedure; and (iv) (where exceptional circumstances exist) that complying with regular and recognized procedures would result in an injustice. Hunter J. did grant vesting order on the facts of that case, but after full hearing at trial as opposed the summary fashion in which the order is requested in the present case. Here, it is evident that there are facts in dispute, and adverse interests that can only be resolved at trial, particularly with respect to the position of the current registered owner, Mr. Klein, and whether he is bona fide purchaser without notice of the interest claimed by the Flads. [18] Even if this was proper case for the making of vesting order, there is further difficulty presented by the fact that the applicant, the School Division, is asking the Court to order that subdivision of Parcel be effected, as precondition to the vesting order. That is relief which the Court may be constrained from awarding on the application as framed. The reason is explained in the decision of the Supreme Court of Canada in City of Vancouver v. Derek G. Simpson, 1976 CanLII 148 (SCC), [1977] S.C.R. 71 which sets out the underlying rationale for the regulation and control of land use. The following passages from the decision of Martland J. on behalf of the Court (at pages 77 and 79) are applicable: The majority judgment states that the refusal of the right to subdivide is in derogation of common law rights. The point is, however, that it was the Land Registry Act which curtailed common law rights. The enactment of that statute took away free right to subdivide. The landowner has no right to subdivide save subject to the approval of the approving officer, who is required by the Act to determine if the contemplated development would be against the public interest. The very exercise of the power given to the approving officer by the Act must necessarily curtail the landowner's right to subdivide. To contend that he cannot be said to exercise that power reasonably if such curtailment of rights results is to contend that the approving officer cannot perform the duty imposed upon him by the Act. ... The Land Registry Act has imposed disadvantage on subdivision unless the consent of the approving officer is obtained and in s. 96 has empowered that officer to refuse approval to subdivision if, in his opinion, it would be against public interest.... [19] In Saskatchewan, it is the provisions of The Planning and Development Act, 1983 that have taken away the free right to subdivide. The following are the relevant provisions: 2. In this Act: (aa) “subdivision” means division of land, and includes division of quarter section into legal subdivisions as described in the regulations made pursuant to The Land Surveys Act, 2000. 133 Every: (a) subdivision; and (b) other instrument; described in section 134 is to be made in accordance with: (c) this Act and the subdivision regulations; and (d) the plans and specifications submitted to and approved by the approving authority. 134 (1.1) No person shall apply to the Registrar of Titles to register transfer of title or to obtain title to new parcel of land where registration of that application would have the effect of subdividing land unless: (a) the Controller of Surveys has approved plan respecting the subdivision; and (b) the appropriate approving authority has issued certificate of approval respecting the subdivision. [20] The proposed plan of subdivision was prepared under the old Land Titles scheme. Under the current LAND System, there is two-step process involved in completing subdivision, wherein the plan is submitted to the Controller of Surveys for approval prior to submission to the Land Registry. In addition s. 134 of The Planning and Development Act, 1983 requires certificate of approval from the approving authority respecting the subdivision. [21] Whether under the former legislation or the present, the Court is not free to subvert the statutory requirements in the exercise of its authority to make vesting orders. In Redmond v. Logel (1985), 1985 CanLII 2383 (SK CA), 37 Sask. R. 270 (C.A.), the Saskatchewan Court of Appeal considered the effect of failure to obtain subdivision approval. As set out in the headnote, the Redmond case involved an appeal by the Logels from judgment after trial ordering rectification of the description of land transferred to them by way of sale from Mohl who had purchased the said land from the respondent Redmond. The original agreement of purchase and sale between Redmond and Mohl purported to except from the sale the farm home and yard, which Redmond was to retain. The transfer was registered, however the reservation of the farm site could not be registered because it purported to effect an unauthorized subdivision of the land. Redmond filed caveat to protect his interest. The land was then sold to the Logels who had notice of Redmond's interest, although, again, the transfer was registered without any reservation of Redmond's rights. Redmond remained on the farm property and brought an action seeking rectification of the title, which was successful in the court below. The original purchaser, Mohl, had been added as party to the action. The trial judge ordered rectification of the agreements and directed the Logels to apply for subdivision approval. The issue on appeal was whether the trial judge erred in holding that Redmond retained legal interest in the farm site which could form the basis of registrable transfer under The Land Titles Act. [22] The appeal was allowed. The Appeal Court held that at the time of the purported reservation of title in favour of Redmond, no subdivision of agricultural land was permitted in respect of an area less than five acres. Redmond sought to reserve two acres only. subdivision would therefore not have been permitted, if applied for. The original transaction appeared to have been concluded in an effort to avoid compliance with, and the effect of, the applicable subdivision regulation. The application in question was tantamount to judicially ordered partition of land to avoid the effect of legislation. The Court was obliged to prevent such wholesale frustration of the legislature's objects. [23] As noted by Tallis, J.A. in para. 12, the purpose of these and other provisions in The Planning and Development Act is: ‘the prevention of the unrestricted subdivision of land’: see Re Forfar and Township of East Gwillimbury 1971 CanLII 543 (ON CA), 20 D.L.R. (3d) 377 and Re Redmond v. Rothschild 1970 CanLII 317 (ON CA), 15 D.L.R. (3d) 538 aff'd (1972) 1972 CanLII 1231 (SCC), 28 D.L.R. (3d) 512. The chief object in controlling subdivisions and passing zoning bylaws is to control land development.... Accordingly, the trial judge was in error in granting rectification of the agreement and ordering the Logels to apply for subdivision approval. [24] Here, it might be argued there are some distinguishing features. The original transaction between the School Division and the Flads was not concluded in an effort to avoid compliance with subdivision regulations, rather it was made in the mistaken belief that an already subdivided parcel was being transferred. The subdivision approval was seemingly obtainable (at least before the land was transferred to Mr. Klein), but conditional upon the Flads relocating corrals (constructed without development permit) in order to comply with existing subdivision regulations and the zoning bylaw. [25] While the Court is precluded from directing the Registrar to effect subdivision that is prohibited by the legislation, resolution of the matter could be achieved if, for example, after adjudicating on all the rights and obligations in issue, the Court could was prepared to direct that the preconditions to subdivision approval be met by party or parties to the proceedings. Once the proposed subdivision meets the required standards and is approved, then vesting order can be made in the appropriate circumstances under the provisions of s. 6.5 of The Land Titles Conversion Facilitation Regulations, R.R.S., c. L-5.1, Reg or, as an alternative possibility and if all interested parties are before the Court, under The Improvements Under Mistake of Title Act, S.S. 1978, c. I-1. [26] As examples, refer to Munro v. French and Leniuk, [1979] S.J. No 276 (Q.B.) (QL) where the plaintiff sued for specific performance of an agreement for sale of land, and vesting order. He had purchased 50-acre parcel from the defendant’s husband, who had since passed away. The plaintiff made improvements for cattle operation and registered caveat to protect his interest. Title passed to the defendant, French, upon the death of her husband. She had some discussions with the plaintiff about transfer but it was never effected. At the time, the transfer could have been effected without the need for subdivision approval, as it would have been the first subdivision out of the quarter section. However, the defendant subsequently transferred 40-acre parcel to her granddaughter. After dispute arose over who should pay the cost of obtaining subdivision approval, French then sold the remaining 110 acres (including the plaintiff’s 50 acres) to the defendant, Leniuk, subject to the plaintiff’s caveat. Leniuk then took proceedings to lapse the plaintiff’s caveat. The plaintiff commenced proceedings. Hughes J. relied on the authority of the Supreme Court of Canada’s decision in Dynamic Transport Ltd. v. O.K. Detailing Ltd., 1978 CanLII 215 (SCC), [1978] SCR 1072 and ordered the defendants to apply for subdivision approval and, if it could not be obtained, the matter was to be referred back to him for further determination and assessment of damages. [27] refer to Jackson Estate v. Anderson Estate (1992), 1992 CanLII 7992 (SK QB), 106 Sask. R. 183 (Q.B.) where Kyle J., relying on constructive trust principles, held that mutual mistake resulting in the transfer of mines and minerals could be rectified, and the mines and minerals could be vested in the rightful owner. He stated it was not in every case that the provisions of an agreement must, of necessity, be considered merged in conveyance. This decision was overturned on appeal at (1993), 1993 CanLII 6620 (SK CA), 113 Sask. R. 264 (C.A.), but on the grounds that case of mutual mistake had not been made out, and that the doctrine of laches barred the claim. The person claiming to be the rightful owner of the interest had done nothing for 20 years, both parties to the transaction had died, and the action was between the executors of their respective estates. [28] refer lastly to Hanson v. Cook (1989),1989 CanLII 4800 (SK CA), 75 Sask. R. 66 (C.A.), where there was an appeal from vesting order made under s. of The Improvements Under the Mistake of Title Act. Adjoining cottage owners had all built on lots one removed from the lot to which they had title. The vesting order was made on notice of motion as the facts were not in issue. One owner wanted to retain rights to his original lot and objected to the order. The Court of Appeal held that lasting improvements had been made on the lots in the mistaken belief as to title, and judge was empowered under s. to make vesting orders rather than awarding monetary compensation. [29] Without commenting on the propriety of making any of the orders made in the foregoing cases (which can only be determined on full examination of the evidence and not in summary fashion), am of the view that where the appropriate remedies are sought and where all the interested parties have participated and their rights have been adjudicated upon, there are other means of achieving the desired ends. However, it is not within the Court’s power to order the Registrar to effect subdivision contrary to the provisions of The Planning and Development Act, 1983 where such is precondition to the making of vesting order sought by an applicant. [30] The applicant requested that make an order for cross-examination of the respondent on his affidavit, if declined to grant the order requested. do not believe that will go far toward resolving the complicated issues that present in this matter. am prepared to direct the trial of an issue, however, the parties should have an opportunity to make submissions as to the framing of the issues, who will bear the burden of proof in the issues as framed, and what procedures should be followed. There will undoubtedly have to be some future consideration given to bringing all the interested parties together in consolidated or joined proceedings in the interests of effective adjudication. The Flads were not served with notice of the present application. have no information about the nature and status of the proceedings taken by the Flads in connection with their caveat. am therefore requesting, on the matter of directing trial of an issue, that further written submissions by the parties be filed within 30 days. J. Y. G. K. Wilkinson J.

FIAT: The applicant school division asks for a vesting order regarding an un-subdivided parcel of land. The requested relief cannot be granted unless the court has authority to order that a subdivision of land be effected outside the requirements of The Planning and Development Act. HELD: 1) Even if this was a proper case for the making of a vesting order, there is a further difficulty presented by the fact that the applicant school division is asking the court to order that a subdivision be effected, as a pre-condition to the vesting order. Whether under the former legislation or the present, the court is not free to subvert the statutory requirements in the exercise of its authority to make vesting orders. The court reviewed the relevant caselaw. 2) While the court is precluded from directing the Registrar to effect a subdivision that is prohibited by the legislation, a resolution of the matter could be achieved if, for example, after adjudicating on all the rights and obligations at issue, the Court was prepared to direct that the pre-conditions to subdivision approval be met by a party to the proceedings. Once the proposed subdivision meets the required standards and is approved, then a vesting order can be made in the appropriate circumstances under the provisions of s. 6.5 of The Land Titles Conversion Facilitation Regulations, or under The Improvements Under Mistake of Title Act. The court reviewed the applicable caselaw. 3) The court requested that further written submissions be provided by the parties on the matter of directing a trial of the issues.

7_2005skqb272.txt