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J. THE COURT OF APPEAL FOR SASKATCHEWAN HER MAJESTY THE QUEEN and ANGELA GWEN LARSON CORAM: The Honourable Chief Justice Bayda The Honourable Mr. Justice Cameron The Honourable Madam Justice Gerwing COUNSEL: Mr. R. Kergoat for the appellant Mr. D. Rayner for the Crown DISPOSITION: Appeal Heard: March 12, 1996 Appeal Allowed: March 12, 1996 (orally) Reasons: March 14, 1996 On Appeal From: QBCA 18 of 1995, J.C. of Saskatoon Appeal File: 6793 Reasons by: The Honourable Madam Justice Gerwing In concurrence: The Honourable Chief Justice Bayda and The Honourable Mr. Justice Cameron GERWING J.A. The appellant was acquitted after trial in the Provincial Court of communicating with another person for the purpose of engaging in prostitution, contrary to s. 213(1)(c) of the Code. However, on appeal to the Court of Queen’s Bench, a new trial was ordered, and it is from that judgment that this appeal arises. There is no need, in view of our disposition, to conduct an extensive review of the facts. police officer, on duty as an undercover person, had conversation with the accused which formed the basis for the charge. The Queen’s Bench judge, in reviewing the decision of the Provincial Court judge in acquitting, interpreted her oral reasons to include a requirement as an element of the actus reus for an offence under s. 213 that there be a specific conversation with respect to payment of money for specified sexual services. The Queen’s Bench judge concluded that this was an error in law and cited as a correct test a comment in R. v. Schmidt (1987), 1986 CanLII 3096 (SK QB), 53 Sask. R. 75 at pp. 77-78: Applying these principles to the present case, it is my view that the facts before the learned Chief Judge constituted evidence from which properly instructed jury could reasonably infer that the respondent was communicating with female person for the purpose of engaging in an act of sexual intercourse and for which he intended to pay. In summary, the evidence is that the respondent approached woman unknown to him in an area where prostitutes were plying their trade, invited her into his automobile, inquired if she was interested in sex and wanted to know if she was police officer. The fact that the conversation did not reach the point where the matter of payment was discussed would not preclude jury from reasonably concluding that an act of prostitution involving the payment of money for sexual favours was contemplated. It was strongly urged by the Crown, and conceded by counsel for the defence, that this is the correct test. That is, if indeed the Provincial Court judge had found that under s. 213 the actus reus must include a specific conversation specifying the sexual services and the money to be paid for them, she was incorrect. We agree with this. However, as we have repeatedly said in the exercise of our appellate capacity both with respect to judgments and jury charges, the entire reasons must be read to understand the true ratio. Here the Queen’s Bench judge in his appellate capacity focussed on one sentence where the trial judge said: ... think the evidence ... has to be relatively specific on the issue of money for specific sexual services. However on a reading of the entire oral judgment, we are of the view she was, in effect, saying that the evidence failed to convince her beyond a reasonable doubt that the offence had taken place. The fact that she was not adding the need for specific conversation is buttressed by the submission of counsel for the appellant that immediately before giving oral judgment she had refused motion for nonsuit. Were she to have been of the view that such an element was necessary it is probable she would have granted the nonsuit. Thus, while noting that the statement of law by the judge of the Court of Queen’s Bench in his appellate capacity was correct, we are the view that the appropriate disposition is to set aside his judgment and restore the decision of the Provincial Court acquitting the appellant of the offence.

The appellant was acquitted of communicating with another person for the purpose of prostitution. A new trial was ordered on the basis that the Provincial Court judge included a requirement as an element of the actus reus for an offence under s.213 that there be a specific conversation with the respect to payment of money for specified sexual services. The Queen's Bench judge concluded that this was an error in law and cited as a correct test that set out in R. v. Schmidt. HELD: The proper disposition is to set aside the judgment and restore the decision of the Provincial Court acquitting the appellant of the offence. 1)On reading the entire oral judgment the court concluded that the judge was saying in effect that the evidence failed to convince her beyond a reasonable doubt that the offence had taken place. 2)The trial judge was incorrect in finding that under s.213 the actus reus must include a specific conversation specifying the sexual services and the money to be paid.

8_1996canlii4963.txt

QB 1997 No. 235 J.C.M. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF MELFORT BETWEEN: Clifford Ray, of the Northern Village of Sandy Bay, in the Province of Saskatchewan Relator/Proposed v. Norman Nateweyes, Mary Lou Shinglar, Robert R. Ray, Daniel M. Bear, Tony Bear, Garry S. Morin and Frank Richard of the Northern Village of Sandy Bay, in the Province of Saskatchewan Proposed Respondents C. Neely for the Applicant S. Eisner for the Respondents FIAT ROTHERY J. January 21, 1998 The applicant, Clifford Ray, commenced an applicationpursuant to s.19 of The Controverted Municipal Elections Act(the "Act") following the municipal election for mayor andcounsellors at the Northern Village of Sandy Bay,Saskatchewan, on October 22, 1997. The applicant showed reasonable grounds for contestingthe validity of the election and the Chambers judge grantedthe fiat to allow the applicant to serve the notice of motionto determine this matter. The application under s.19(1) of the Act was filed on December 8, 1997, and the fiat was granted on the same day. The service of the notice of motionupon all respondents was made within two weeks of the date ofthe fiat. But, counsel for the respondents argues that I have nojurisdiction to deal with the motion because the applicant hasmissed the limitation period for bringing this application. Section 19(1) of the Act states the application to the judgemust be brought "within six weeks after an election." Counsel for the respondents calculates the election to be October 22, 1997. The fiat was granted December 8, 1997, forty-seven dayslater. That is beyond the time limit. Counsel for the applicant responds that the application iswithin the time limit because the time limit does not commenceuntil after completion of the judicial recount provided by s.126-128 of The Local Government Election Act. Grostky J. completed his judicial recount on October 30, 1997. Thus, period of thirty-eight days had elapsed, which is within the time limit of s.19 of the Act. Counsel refers to the case of Regina ex rel. Fraser v. Tuckey, 1974 CanLII 297 (AB QB), [1975] W.W.R. 191 (Alta D.C.) in support of the proposition that the election means the voting and completion of the counting. Tuckey is authority for interpreting the word "election" in s.19(1) of the Act to mean not only the completion of the voting, but the completion of the counting. But, Tuckey is also authority for the proposition that the completion of voting does not include the judicial recount. The Alberta legislation allowed for recount by the returning officer because the first vote resulted in tie. The Alberta court ruled that the time does not commence to run until that returning officer's recount is completed. Saskatchewan's legislation is somewhat different. If the voting results in tie, the returning officer directs person to pull the name "out of hat" from choice of candidates with an equal number of votes. This is provided by s.111 of The Local Government Election Act. But, in this case, no candidates had an equal number of votes when the returning officer counted them. The Local Government Election Act states when the election is complete. It is when the returning officer has declared the results of vote in accordance with s.109 of that Act. It is not only the starting point for determining the limitation period under The Controverted Municipal Elections Act, but also the limitation period for seeking judicial recount under 126 128 of The Local Government Election Act. The legislation is clear. Section 103 of The Local Government Election Act states the deputy returning officer shall count the vote and provide prescribed statement of results. Section 109 provided that the returning officer shall, at the time and place appointed for that purpose, declare the persons elected and post prescribed declaration of results. The prescribed statement of results for s.103 was dated October 22, 1997. However, I have no evidence before meof the date the returning officer declared the results of thevote in accordance with s.109. If the returning officerdeclared the results on October 22, 1997, that date is thecommencement of the six week limitation period. Theapplication is out of time. Before disposing of the matter, I grant counsel leave tofile further affidavit material proving the date the returningofficer declared the results of this vote. It is that datewhich is crucial in calculating the time limit for thisapplicant. If it is sometime after October 22, 1997 and within the time period as have interpreted the legislation, this matter is to be brought back before me.

The applicant commenced an application pursuant to s19 of the Controverted Municipal Elections Act following the municipal election for mayor and counsellors at the village of Sandy Bay. The Chambers judge granted the fiat to allow the applicant to serve the notice of motion and service was made within two weeks of the date of the fiat. The respondents argued there was no jurisdiction to deal with the motion because the applicant had missed the limitation period for bringing this application as s19(1) of the Act states the application must be brought within six weeks after the election. The fiat was granted beyond the time limit forty seven days later. The applicant argued the time limit did not commence until after the completion of the judicial recount provided by s126-128 of the Local Government Election Act. HELD: 1)Leave was granted to file further affidavit material proving the date the returning officer declared the results of the vote which was the crucial date for calculating the time limit for this application. 2)The legislation is clear. Section 103 of the Local Government Election Act states the deputy returning officer shall count the vote and provide a prescribed statement of results. 3)There was no evidence of the date the returning officer declared the results of the vote in accordance with s109. If the returning officer declared the results on October 22/97, that date is the commencement of the six week limitation period and the application would be out of time.

7_1998canlii13907.txt

nan QUEEN’S BENCH FOR SASKATCHEWAN 2011 SKQB 467 Date: 2011 12 16 Docket: N.J. No. 39 of 2011 Judicial Centre: Regina BETWEEN: HER MAJESTY THE QUEEN and TREVOR WADE MEYERS Counsel: Ryan W. Snyder for the Crown Carson D. Demmans for the defence JUDGMENT DANYLIUK J. December 16, 2011 FACTS [1] Trevor Wade Meyers stands charged with six separate counts: 1. THAT HE, the said Trevor Wade Meyers on or about the 4th day of February, A.D. 2011 at or near Regina in the Province of Saskatchewan, did knowingly utter a threat to F.M. to cause death to F.M., contrary to Section 264.1(1)(a) of the Criminal Code. 2. THAT HE, the said Trevor Wade Meyers on or about the 4th day of February, A.D. 2011 at or near Regina in the Province of Saskatchewan, did without lawful authority confine F.M., contrary to Section 279(2) of the Criminal Code. 3. THAT HE, the said Trevor Wade Meyers on or about the 4th day of February, A.D. 2011 at or near Regina in the Province of Saskatchewan, did in committing an assault on F.W. Cause Bodily Harm to her, contrary to Section 267(b) of the Criminal Code. 4. THAT HE, the said Trevor Wade Meyers on or about the 4th day of February, A.D. 2011 at or near Regina in the Province of Saskatchewan, did commit a sexual assault on F.M., contrary to Section 271 of the Criminal Code. 5. THAT HE, the said Trevor Wade Meyers on or about the 27th day of February, A.D. 2011 at or near Regina in the Province of Saskatchewan, being at large on his Recognizance entered into before a Justice or a Judge and being bound to comply with a condition thereof, to wit, not to contact or communicate directly or indirectly with F.M., except through a member of the Law Society of Saskatchewan, fail without lawful excuse to comply with that condition, contrary to Section 143(3) of the Criminal Code. 6. THAT HE, the said Trevor Wade Meyers on or about the 26th day of February, A.D. 2011 at or near Regina in the Province of Saskatchewan, did knowingly utter a threat to F.M. to cause death to F.M., contrary to Section 264.1(1)(a) of the Criminal Code. [2] This matter proceeded to trial. The evidence revealed that the defendant and the complainant were co-workers who met on the jobsite, then formed personal relationship. Both were scaffolders, support trade to other trades. The defendant was senior and more experienced in this trade. [3] The complainant, F.M., testified. She is 38 years old. She described how she and the defendant met through work, and began their relationship. She testified to her criminal record, which is dated. The only relevant matter was 1999 conviction for importing cocaine. [4] In early February 2011 the complainant and defendant were both employed at the Rocanville mine. They had four days off and decided to come to Regina. They caught ride, buying and drinking some beer. [5] Once in Regina, the couple checked into hotel. There was more drinking. Later, someone decided to buy some cocaine. The evidence is in dispute as to whose idea this was. Allegedly the complainant “knew someone” and the couple walked considerable distance to make buy, only to come up empty. They trekked back to the hotel, with the complainant falling at least once. [6] Once back at the hotel, there was more drinking. Then they took cab to another location provided by the complainant. The defendant gave her money, and she bought an eight-ball of cocaine for $240.00. The defendant said the complainant had no money, so he paid for absolutely everything on this trip. He had withdrawn $600.00 from an ATM to facilitate the drug buy and associated transport costs. [7] Back at the hotel, the complainant cooked and smoked some cocaine, while the defendant snorted some. Each testified that the other had consumed most of the cocaine. As well, the drinking continued, each saying the other drank more. Eventually, both went to sleep or passed out. There was no cocaine left. [8] Thus ended the first day of holidays. [9] The next day was February 4, 2011. The couple got up and decided to go shopping and drinking. It is difficult to say which activity prevailed. [10] The couple attended at and near the Cornwall Centre. number of items were purchased from several stores. Those of relevance included pair of stiletto-heeled shoes for the complainant and, from nearby adult store, vibrator and some lubricant for total of around $110.00. Interspersed with these purchases were several drinking sessions. The defendant said the complainant consumed many “triple paralyzers”, which the complainant denied. [11] After the love shop purchases, the couple went for sushi, and drank saki, paralyzers and beer. Allegedly the complainant had hankering for more cocaine after the sushi, although she disputes this. The couple walked to another hotel to phone for taxi. While there, more alcohol was consumed. The cab took them to another restaurant, where more off-sale beer was purchased, and the couple retired to their hotel room. The complainant said that by far, the defendant had consumed more liquor. [12] The testimony sharply diverges on subsequent events. The parties agree that at some point, the shopping bag containing the vibrator and lubricant was noted to be missing, and that an argument ensued. [13] The complainant testified that she had disrobed and laid down on the bed. She said the defendant noticed the love shop bag was missing, surmised it had been left in the taxi in error, and became angry. She chuckled at this turn of events. This made the defendant even angrier. He began yelling at her, saying she owed him money for the vibrator and lube. He then began to choke her while she was laying on the bed and he was on top of her. She said she tried to scratch him and push him off, but could not. Desperate, she grabbed his groin and began to squeeze, as he continued to choke her. The defendant punched her face and head repeatedly, telling her to let go. She did, but he kept pounding her with his fists. She tried to leave, but every time the defendant would grab her and throw her back onto the bed. He was screaming at her, saying bad things about her family. He shouted at her that she was “not going anywhere” and that he was going to kill her. He threw towel in her face and told her to “clean her fucking self up”. She tried to phone the taxi company to recover the love shop bag, but could not get through. At this point she said the defendant threw her on the bed. She told him no, but he forced himself on her and they had sexual intercourse. She said she could not fight him off. At one point he grabbed her hair and said, “You’re my wife, do what tell you.” After the sexual act was completed, the defendant passed out. The complainant grabbed her clothes and got out of there, seeking refuge with friends. The police were called days later. [14] The defendant testified, with different version of events. He confirmed the first night of drinking and cocaine use, but said it was the complainant who was the bigger drinker and drug user. He said it was her, not him, who pushed to buy cocaine. He said she had gotten paranoid and suffered from “cocaine psychosis”, believing police car was outside and that there were bugs in her eyes. He went to bed quietly while she stayed in the bathroom doing cocaine. [15] The next morning the defendant woke at 8:30 and found the complainant finishing the cocaine. He gave similar account of the shopping trip, except that he was drinking moderately and the complainant was drinking wildly. He produced banking records which tended to confirm that he had paid for everything. [16] The two accounts diverged markedly when the defendant explained his version of what happened in the hotel room. He said they had few more drinks, then decided to have sex, which was consensual. The defendant said “she was totally into it.” He saw the shopping bags, remembered the shoes, and asked to put them on her. She agreed, and intercourse was resumed. He then thought of the love shop purchase. He asked to use the vibrator on her; she agreed, but he could not find the bag. An argument erupted as to who had the bag last. He says she was on the bed and he was standing beside it when she wanted more cocaine. He said no, so she kicked his leg with her pointy shoe. She then attacked him, one hand clawing his eye and the other squeezing his scrotum. She also hit him in the mouth, chipping his tooth. She then had one hand gripping and twisting his penis, while the other was used to pull and twist his testicles half way to his knees. He could not break her grip so he punched her in the face with his fist, as hard as he could. She transferred both hands to his testicles and pulled. He then hit her in the face with his fist four more times, as hard as he could. He finally was able to pry her hands off, one at time. [17] The defendant got cold wet towel from the bathroom and applied it to his testicles. He wanted her gone. He said the complainant sat calmly on the edge of the bed, smoking, naked except for the shoes, telling him things like “you’ll pay”. He then curled up on the same bed, went into fetal position, and went to sleep. He said he thought someone came and went from the room several times during the night. At 5:00 or 6:00 a.m., he woke up and she was gone. He got up at 8:00 a.m. to soak his testicles in cold water. He noted he had been robbed, that everything except his clothes was missing. He said his glasses had been broken into pieces and left on the night table. He was in shock and pain, so he went to the bar fridge for beer, but they were all gone. He left the hotel for friend’s house to recuperate. [18] It is against this dichotomy of versions of events that must determine whether the defendant is guilty of each charge. [19] Has the Crown proven each element of each offence beyond reasonable doubt? [20] In the course of this consideration, how is the issue of credibility to be resolved? [21] It is easiest to analyze each charge in light of the evidence and the applicable law. Certain facets of the testimony bear closer examination when considering particular charges. [22] However, there are some overarching considerations. First, the resolution of each charge is rooted in R. v. W.(D), 1991 CanLII 93 (SCC), [1991] S.C.R. 742. Where credibility is important in trial, the rules as to reasonable doubt are apposite. Where defendant has testified, the sequence of inquiry ought to be as follows: (a) if the testimony of the defendant is believed, he must be acquitted. (b) even if the defendant’s testimony is not believed but there is still reasonable doubt, the defendant must be acquitted. (c) even if the defendant’s testimony does not give rise to any doubt, the trier of fact must ask whether, on the basis of the evidence which is accepted, the defendant’s guilt has been established beyond reasonable doubt. [23] Also see R. v. McLeod, 2008 SKQB 14 (CanLII), 309 Sask. R. 269 per Foley J. at para. [24] There are concerns with the testimony of the defendant in this case, as follows: (a) Generally, his testimony did not appear forthright. All of his own acts were minimized or justified, and all of the complainant’s acts were aggravated. In comparing the overall demeanor of the two witnesses, the complainant appeared to be more straightforward and direct than the defendant. (b) The defendant is large, very muscular person. While the complainant is not petite, the defendant appeared to exaggerate her strength and physical prowess (while contemporaneously alleging she was severely intoxicated) and very much minimized his own. (c) The defendant insisted the complainant not only consumed most of the cocaine, but was the driving force in obtaining it. As pointed out by the Crown, she had no money. By his own admission, the defendant paid for everything, including the drugs and liquor. The defendant described convoluted series of steps required to buy the drugs. At any time, he could have terminated the cocaine buy, either by simply refusing to participate or by withholding money. On cross-examination, he had no plausible explanation for not doing so. His bank records support the Crown’s position in this regard. (d) His assertion that cocaine affected the complainant’s behaviour on the 4th makes little sense when the drugs were consumed the previous day. Likewise, his repeated assertion that the complainant was in “cocaine psychosis” (his term), and his concern about same, does not explain his reaction to her mental state giving her more liquor. (e) The defendant testified as to previous incidents of bad conduct by the complainant. He said on January 23, 2011, the two of them were catching bus to Rocanville from Regina. He said they had an argument in the bus depot, the complainant struck him in the face, and he suffered broken nose. She ran off. He was bleeding. He called his brother for ride. This incident damages his credibility in two ways. First, he said he sought no medical attention for his broken nose, repeatedly saying, “It was just nose.” Second, his brother Lovell Meyers testified. Lovell confirmed he had picked up the defendant at the bus station. He said the defendant’s face was bleeding from several places, and that his glasses were broken. The defendant had already said it was the complainant who broke his glasses on February 4, and tendered an optician’s receipt dated March 4, 2011 showing replacement. Yet this receipt states it is for lenses, not frames. Further, the defendant’s own witness (his brother) indicated the glasses were broken some 12 days before the defendant says it happened. Rather than bolstering the defendant’s credibility, this testimony damaged same. (f) The defendant testified the damage the complainant had inflicted on his genitalia was debilitating. He missed work, then had to be on light duty in the office for nine days. Yet he sought no medical attention until his boss advised him the police were looking for him, whereupon he obtained paramedic’s report which confirmed bruising and scratching to his groin. This was the evening of February 8, four days later. His explanation was that he “didn’t want doctor touching my nuts more.” He first saw physician some two months after being placed in custody on remand. (g) The defendant is 6'4", over 200 pounds. He is fit, muscular, and imposing figure. When compared to the complainant, his suggestion that it took five punches to her head, as hard as he could, to dislodge the complainant, is implausible. (h) His description of the parties’ behaviour following the altercation defies belief. The photographs of the complainant put in by the Crown graphically depict the damage done to her. Yet the defendant claimed that after the fight she sat on the bed, calmly had couple of cigarettes and drank two-litre wine cooler, and said things to him like, “You fucked up my face, you’re going to pay.” At this point the defendant says he lay down and went to sleep. [25] In short, where conflict exists between the testimony of the complainant and the accused, accept that of the complainant. [26] now turn to consideration of each charge. Sexual Assault [27] Crown counsel, in argument, candidly admitted the evidence on this count was weak. agree. do not believe the defendant’s account, and do not acquit on that basis. Rather, the complainant appeared somewhat confused and uncertain as to the order of events. As with any witness, may accept all, some, or none of her testimony. [28] Taking all of the evidence into account, and even disbelieving the defendant, am left with reasonable doubt as to whether sexual assault occurred. Any such doubt must be resolved in favour of the defendant. [29] I therefore find the defendant not guilty of sexual assault. Unlawful Confinement [30] The complainant swore she tried to flee several times after the melee in the hotel room began. The defendant denies this, insisting that after he had punched her face five times as hard as he could, she sat on the bed calmly smoking and drinking, telling the defendant “you’ll pay”, while the defendant curled up and went to sleep despite having been savagely attacked by her (allegedly unprovoked) minutes earlier. [31] reject unequivocally the defendant’s account, and accept that of the complainant. find as fact that she tried to flee the hotel room several times. find the defendant physically prevented her from doing so each time. [32] On these facts, as found, is the offence of unlawful confinement made out? have considered the following: R. v. Gratton (1985), 18 C.C.C. (3d) 462 (Ont. C.A.) R. v. V.(C.L.), 2003 SKPC 85 (CanLII), [2003] S.J. No. 374 (QL) R. v. Daniels, 2008 SKQB 349 (CanLII), 321 Sask. R. 40. [33] On these facts it is clear to me the defendant knew the complainant was trying to leave the hotel room, and physically prevented her from doing so on several occasions, against her will. Accordingly, I find the Crown has proven each required element of this offence beyond a reasonable doubt, and I find the defendant guilty of unlawful confinement. Assault Causing Bodily Harm [34] have rejected and do not believe the defendant’s testimony as to how the fight began and unfolded. accept the testimony of the complainant. also have no doubt that the defendant’s punches caused injury to the complainant, including blackened eyes, cut to the brow, and extensive facial bruising and swelling. The evidence also reveals injuries to the legs, arms, hand and lower back of the complainant. find as fact that all were caused by the defendant. There was no serious contest on this point. [35] Prima facie, the offence of assault causing bodily harm has been established. However, the defendant raises self defence. The argument of defence counsel was that the complainant started the fight by grabbing the defendant’s testicles, requiring him to hit her in self defence, using force that was not excessive in these circumstances. [36] Neither counsel clearly delineated which section of the Criminal Code was operative in this case. Defence filed R. v. Couture, 2006 SKPC 37 (CanLII), 277 Sask. R. 101. [37] finding of who initiated or provoked the assault is required to assess which section of the Code applies. The complainant says the defendant attacked her and began choking her, and she grabbed his testicles in defence. The defendant says he did nothing, and she grabbed his testicles in one hand and initially clawed at his eye with the other. Yet he said nothing of any scratches or injury in the area of his eye, nor was anything like that noted by the paramedic at the Rocanville mine. [38] Accordingly, the defendant cannot invoke s. 34(1) of the Code. The defendant was not unlawfully assaulted by the complainant. The defendant initiated the attack by choking the complainant. Alternatively, the defendant provoked the assault by the complainant. [39] Yet further, s. 34(1) requires that an accused not intend his use of force to cause death or grievous bodily harm. That is not the case here. In Couture, supra, cited by the defence, Kovatch P.C.J. found that an accused who was strong and who hit the victim twice in the face was, at the very least, reckless in his use of force. Here, the defendant (by his own admission) struck the complainant with a closed fist five times as hard as he could. He is very large, muscular man. Applying the rationale in Couture, the defendant either intended to cause grievous bodily harm or was reckless in the application of force. [40] Finally, s. 34(1) requires that the force used by the defendant not be excessive, and be proportionate to the force applied to him. While there is no requirement that the defendant measure his force to a nicety, here the force used was excessive. [41] Section 34(1) does not avail the defendant in this case, whether the defendant or the complainant was the initial attacker. [42] While only s. 34(1) was relied upon by the defence, also instructed myself as to ss. 35 and 37. On the facts as found, none of these avails the defendant. [43] In this case, the elements required for self defence are not present. I find the defendant guilty of assault causing bodily harm. Threat February 4, 2011 [44] This allegation deals with the events at the hotel on February 4, 2011. The complainant’s testimony in this regard was clear and unequivocal. When she tried to leave the hotel room and the defendant prevented her, he said “you’re not going anywhere” and “I’m going to kill you.” In his testimony, the defendant failed to deal clearly with this allegation. [45] have no doubt the Crown has established all the elements of this offence beyond reasonable doubt. I find as a fact that during the events at the Coachman Hotel in Regina on February 4, 2011, the defendant threatened to kill the complainant, and the defendant is guilty of this charge. Threat February 26, 2011 Breach of Recognizance February 27, 2011 [46] These two charges logically should be dealt with together. [47] The complainant testified that she kept in touch with the investigating officer, Cst. Claude. She said he had advised her via telephone that charges were pending against the defendant but he had not been arrested as he was back in Rocanville. During this time, the defendant telephoned the complainant, saying, “Don’t show up at the fucking trial, watch your back, I’m going to fucking kill you.” He threatened to come to her residence, prompting her to lock her door. Then, after he was arrested and released, he phoned her again and threatened her in similar fashion. The complainant pressed *57 on her phone to trace the call back, but it came up “restricted”. [48] On cross-examination, it was established that the complainant’s testimony about these threats (“I’ll fucking kill you”) was consistent with prior statements and testimony. She was clear that the threat was to kill her, and was made by the complainant. [49] While the complainant recalled the general time frame but not the exact date, Cst. David Adams of the Regina Police Service testified that he attended at the complainant’s residence February 26 and 27, 2011 pertaining to her complaints of death threats by the defendant via telephone. The exact dates are established by him. The defendant had entered into recognizance February 25, 2011 (Exhibit P-1 in this trial). [50] The defendant denied contacting or threatening the complainant on either occasion. [51] I do not believe the defendant and do not accept his testimony and denial. Further, his testimony does not even raise doubt as to these occurrences. Finally, looking at the complainant’s evidence and that of Cst. Adams (both of which I accept) and upon weighing the totality of the evidence, I am not left with any doubt as to the guilt of the defendant on these two charges, and I find him guilty. CONCLUSION [52] I have found the defendant, Trevor Wade Meyers, not guilty of sexual assault but guilty of five charges, being assault causing bodily harm, unlawful confinement, two counts of uttering death threats, and breaching his recognizance. Again, have to say that after careful weighing and assessment of all the evidence, have no doubt of his guilt of these five charges. [53] Counsel may now speak to sentence. J. R.W. DANYLIUK

The complainant and the accused were in relationship and came to Regina where they stayed in hotel, drank, consumed cocaine and shopped. An argument ensued about missing shopping bag. The accused was charged with two counts of uttering death threats to the complainant; unlawfully confining the complainant; assault causing bodily harm on the complainant; committing sexual assault on the complainant; breach of recognizance in having contact with the complainant. At trial, both the complainant and the accused testified as to what transpired during the argument that resulted in the charges. HELD: 1) The accused was found not guilty of sexual assault. 2) The accused was found guilty of unlawful confinement. 3) The accused was found guilty of assault causing bodily harm. The Court did not accept the accused's invoking of self-defence pursuant to s. 34(1) of the Criminal Code. The accused admitted to striking the complainant with a closed fist five times as hard as he could and the force used was excessive. 4) The accused was found guilty of threatening to kill the complainant at the hotel. 5) The accused was found guilty of uttering death threats and breach of recognizance by contacting the complainant. The Court did not accept his testimony and denial.

e_2011skqb467.txt

J. THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2005 SKCA 61 Date: 20050512 Between: Docket: 1111 HDL Investments Inc. et al. Prospective Appellants (Appellants) and City of Regina and Saskatchewan Assessment Management Agency Prospective Respondents (Respondents) Before: Bayda C.J.S. Counsel: Leonard D. Andrychuk, Q.C. for the Prospective Appellants Byron G. Werry for the Prospective Respondent City of Regina Application: From: Assessment Appeals Committee Saskatchewan Municipal Board Heard: May 11, 2005 Disposition: Leave granted Written Reasons: May 12, 2005 By: The Honourable Chief Justice Bayda BAYDA C.J.S. [1] The applicants will have leave, pursuant to s. 33.2(2) of The Municipal Board Act, S.S. 1988-89, c. M-23.2, to appeal to this Court against the decision of the Saskatchewan Municipal Board Assessment Appeals Committee rendered in this matter on the 16th day of February 2005 on the questions of law arising out of the following grounds of appeal. A. The Committee erred by mischaracterizing, misreading or ignoring the decision of this Court in Harvard Developments Ltd. et al v. The City of Regina et al, 2004 SKCA 103 (CanLII) (the “HDL Decision”), which confirmed the decision of the Board of Revision in appeal 98-520 that the Wascana Energy Building sale could not be used for MAF purposes, when the Committee decided to overturn the Board’s decision to exclude the said sale from the MAF sales array. B. The Committee erred by grounding its decision on the premise that the only issue before the Board and the Committee was whether the assessor had properly adjusted the sale of the Wascana Building, and ignoring and failing to deal with one of the Appellants’ main arguments concerning the Wascana building sale, such argument being that the sale price of that building could not be adjusted to represent typical market value transaction per the Manual Document 1.1.6. C. The Committee erred in its interpretation or application of the HDL Decision or Document 1.1.6 of the Manual, or ignore the evidence before it, when it determined that the assessor had correctly performed all necessary adjustments under Document 1.1.6. D. The Committee erred in its interpretation or application of Document 1.1.6 of the Manual when it determined that the question of whether sale is capable of adjustment or is properly adjusted is to be determined by reference to the assessment Neighbourhood in which the building is placed. [2] There will be an order in accordance with the above. Costs in the cause. DATED at the City of Regina, in the Province of Saskatchewan, this 12th day of May, A.D. 2005. BAYDA C.J.S.

The applicants apply for leave to appeal pursuant to s. 33.2(2) of The Municipal Board Act to appeal to this Court against the decision of the Saskatchewan Municipal Board Assessment Appeals Committee. HELD: Leave is granted to appeal.

4_2005skca61.txt

J. 1986 S.H. No. 57202 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: SKIPPER FISHERIES LIMITED, body corporate and WAYNE THORBOURNE, CLAUDETTE THORBOURNE, THOR SEINERS LIMITED, body corporate, PHOENIX FISHERIES LIMITED, body corporate, PAUL EDWARD BLADES, BRIAN ARTHUR BLADES, CLIFFORD V. GOREHAM, and S. CLIFFORD HOOD DECISION HEARD: Before the Honourable Justice D.W. Gruchy in Halifax, Nova Scotia, on November 8, 10, 15, 22, 23, 30, December 1, 2, 16, 22 and 23, 1993 DECISION RELEASED: April 18, 1994 COUNSEL: Douglas A. Caldwell, Esq., Q.C., and Lloyd I. Berliner, Esq. Counsel for the plaintiff Robert G. Belliveau, Esq., Q.C., Christopher C. Robinson, Esq., and J. David Connolly, Esq., Counsel for the defendants Phoenix Fisheries Limited, Paul Edward Blades, Brian Arthur Blades and Clifford V. Goreham Thomas E. Pittman, Esq., Counsel for the defendants WayneThorbourne, Claudette Thorbourne and Thor Seiners Limited James L. Connors, Esq., and David Bright, Esq., Q.C., Counsel for the defendant S. Clifford Hood GRUCHY, J. Introduction At the opening of Court before the commencement of the trial of this action the defendants Phoenix Fisheries Limited, Paul Blades, Brian A. Blades and Clifford Goreham (collectively, Phoenix) applied for the dismissal of the action pursuant to Civil Procedure Rule 20.09 which provides: 20.09 (1) Where party fails to make discovery of or produce for inspection any document under an order or Rule 20, he is liable to be punished for contempt, and if plaintiff, to have the proceeding dismissed, or if defendant, to have the defence struck out. (2) Where it appears that there has been failure on the part of party or his solicitor or, in the case of the Crown or body corporate, or an officer thereof, to make reasonable effort to give full discovery of all documents that relate to any matter in proceeding, the court may impose on the party, solicitor, or officer such terms or penalty as it thinks just. This application was made before Skipper called evidence. The basis of the application is that Skipper had failed to make reasonable effort to produce documents and information and to give full discovery relevant to the matters in issue. Phoenix and Skipper called various witnesses on this application and all parties have participated in the examination and cross‑examination of them. All parties have made oral submissions, supplemented by written briefs. Background In the action Skipper claims to have been deprived of its interest in fishing vessel, Sealife III, and the contribution to overhead and profit margin which that vessel would have made to Skipper's seafood plant by its landings. While the means by which the alleged deprivation is not directly involved in this application it will be necessary to touch upon the methods of quantification of the alleged loss employed by the parties' experts and to relate that information to the production‑of documents and discovery by the plaintiff. The cause of action, according to the pleadings, first arose in 1985. The action was commenced on June 27, 1986, and the pleadings appear to have closed in 1989. In view of the anticipated lengthy trial, the matter was assigned to me for case management. Various management meetings were convened and the date for the commencement of trial was set for November 1, 1993. The trial was to be of two months' duration. The plaintiff retained the chartered accountants, Doane Raymond, to prepare report on the alleged loss occasioned to it by the defendants. report dated March 31, 1992 has been filed. The defendants retained Mr. Grant Thompson, chartered accountant, on April 23, 1993 to review the Doane Raymond report and to make such investigations into the alleged loss as he deemed necessary or advisable. During the various pre‑trial meetings it was apparent that the defendants had experienced difficulties in obtaining the report needed. The reasons for this difficulty were not apparent to me until the eventual application made at the opening of trial. At the various pre‑trial conferences and applications for adjournment, pressed counsel to continue efforts for trial as scheduled as rescheduling two‑month trial might require an adjournment of year. The requests for adjournment were stated to have been necessitated by Mr. Thompson's inability to obtain information from Skipper for the preparation of his report. It was revealed to me during the pre‑trials and during this application that Mr. Thompson sought information which he considered vital in the calculation of the value of the Sealife III landings and the contribution that they would have made to Skipper's margin. Mr. Thompson had dealt with Mr. Douglas Murdock, the vice‑president, finance and administration of Comeau Seafood Group which includes Skipper. Mr. Thompson had inquired of Mr. Murdock as to the method Skipper used in calculating compensation to fishermen for the fish delivered to the plant. Mr. Murdock gave Mr. Thompson information to the effect that Skipper did not have record of the weight of raw fish received. Rather, Mr. Murdock told Mr. Thompson of its method of calculating the payment due to fishermen, but which method caused Mr. Thompson lot of difficulty. He was given to understand that certain information which he sought simply was not available. During discovery of Mr. Thompson, through questions directed to him, it was revealed that Skipper had information which Mr. Thompson felt he had been led to believe did not exist. That led to applications to adjourn and eventually to this application. At an application to adjourn, which refused, ordered the parties to meet together with their experts and to determine the precise information requested and what was available. am informed by affidavit (Iater acknowledged in evidence) that during that meeting Mr. Murdock informed the defendants that fish were not weighed on receipt at the Skipper plant and that there were no truck scales. There were no records of the weight of fish received. While still not understanding the full significance of the allegations being advanced by the defendants, and in order to attempt to salvage the time set aside for this trial, severed the issues of liability and quantum for the purposes only of receiving evidence, but on the understanding that would not make any determination as to liability until had heard all the evidence concerning quantum. Defence counsel submitted that the evidence concerning quantum would have an effect on the question of the credibility of Skipper and its officers. At the scheduled opening of the trial Phoenix asked for and received permission to make this application and to call evidence in support of it. The anticipated evidence was outlined to me and decided to hear it. While the evidence outlined appeared to be relevant to the matter of quantum, concluded that it was relevant also to the subject matter of the application. Two truck drivers were then called by Phoenix one an employee of Skipper and the other an independent contractor. They established to my complete satisfaction that truck scales were located, maintained and used by Skipper at its plant. There was an established practice of weighing herring on arrival at the plant. Notes were made in the scale house by the truckers of the weight and origin of the fish as it was received. In reply to that evidence, Skipper called Mr. Marcel Comeau, the President of Comeau Seafoods limited, which company is the owner of Skipper. He acknowledged the existence of the scales, but said that he had not been aware of their ongoing use. He only became aware of the ongoing use of the scales at or about the time the trial was to begin. He then gave evidence which brought to the fore the whole matter of the method of calculating payments to the fishermen. His evidence was to the effect that the weight of herring received at the plant is not relevant to the calculation of compensation and is therefore not relevant to the case as whole. That evidence crystallized the dichotomy between the parties as to the methods to be used in calculating alleged damages arising from the loss of the Sealife III contribution to the Skipper margin. will not dwell on the methods of determining compensation for the fishermen in any detail, but it is clear that one must be used to calculate the value of the Sealife III landings. which Skipper says ought to have gone to its plant. Skipper says that in the operation of its plant it does not concern itself with the weight of fish received and that only the production yield of the fish landed is relevant. Skipper knows the weight of its product produced from any given load of fish and applies formula to that weight, which formula includes factors of management discretion as to the quality of the fish received and the amount of trash (rejected species) fish, and thereby determines notional weight of the fish received. That notional weight is then used in determining the compensation for the fishermen. Mr. Comeau said there is no direct relationship between the notional weight (paid weight) and the landed weight. According to Mr. Comeau, any requests by the defendants for landed weight were requests for irrelevant information. Mr. Grant Thompson, on the other hand, when he commenced his investigation, wanted to know what method of calculating compensation was used by Skipper; he had understood that the industry uses one of two methods, either on the basis of whole weight or on the product produced. Mr. Thompson said he was informed by Mr. Murdock that Skipper did not use either method. Mr. Thompson, however, was faced with the problem of relating the gross landings of Sealife III during the period in question to the value of those landings to Skipper; there had to be devised method to determine that ratio. He only had the gross weight of the Sealife DI landings and that had to be related to value to Skipper. He was not given sufficient information to make that determination. In fact, Mr. Thompson produced report which ultimately had the effect of underlining the problems created by the lack of information needed to correlate the Skipper method with the Sealife III landings. Mr. Thompson, using the statistics and information supplied to him by Skipper and Mr. Murdock, together with certain industry standards, concluded that large quantity of raw material was unaccounted for. Further discovery examinations of Mr. Thompson and Skipper employees conducted even during the hearing of this application led to an apparent impasse on the correct methods of calculation and great deal of confusion as to what information Skipper actually had. The retrospective calculation of landings using the method said to be employed by Skipper to calculate the paid weight of the fish landings, according to Mr. Thompson, led to the conclusion of an improbably (if not impossibly) efficient production, or (I add) to the conclusion that the weight of the landings was greatly understated by the use of such method. The conflicting evidence and positions of the parties presented to me at this application make it necessary to make certain findings of fact and credibility. If find the plaintiff's evidence credible and acceptable, then the matters or questions involved in this application are resolved and may conclude that it had produced the information reasonably required of it and such other information requested is not relevant. am unable to do that for the reasons now set forth. Mr. Comeau's Evidence Mr. Comeau's evidence was unsatisfactory. find as fact that when Mr. Thompson had first met with Skipper he made it abundantly clear that he wanted to know the weight of the raw material received at the Skipper plant. find that Mr. Comeau had to know of the existence of the scales and their use. He bad to know of the record of that raw material. He said that the weight information was obtained and given to the fishermen for their benefit only. He gave no satisfactory explanation of that observation. He had either unilaterally concluded that the information sought by Mr. Thompson was irrelevant, or that for other reasons it would not be produced. reach these conclusions because: 1. The truck scales were used whenever they were in working condition and while Mr. Comeau said there were periods when difficulty was experienced with them, they were apparently then repaired; 2. The truckers delivering fish went to considerable trouble, time and consequently expense to obtain and record an accurate record; 3. The records produced by the weighing procedure were used in manner not made clear to me in settling accounts with the fishermen; 4. Accounting staff of Skipper knew of and used the data recorded from the weighing procedures; 5. Considerable effort was expended to keep the records which, although they have an informal appearance, did appear to be carefully done and kept. Mr. Comeau did not mention in his testimony before me the existence of any records of fish deliveries to the Skipper plant. During adjournments of the hearing of the evidence on this application, however, the parties continued their discovery examinations of various witnesses about the existence of records of weights of raw material received. During these discoveries it was revealed that there was set of scribblers in which Skipper employees kept record of herring receipts. That evidence was revealed in examinations of Skipper employees conducted after Mr. Comeau had given his evidence. The fact that Mr. Comeau did not mention the existence of this record is, to my mind, significant. Two possible explanations exist for this failure: 1. Mr. Comeau did not know of their existence; but as the controlling officer of Skipper he should have known of them; or 2. Mr. Comeau did know of them and decided not to reveal them. Either explanation is contrary to the spirit and intent of the Civil Procedure Rules. In addition, Mr. Comeau had reviewed Mr. Murdock's affidavit filed herein wherein it was stated that the number of pounds of herring taken in by the plant was not recorded. At that point Mr. Comeau, or Mr. Murdock, was under the distinct obligation to reveal that information which was subsequently found in the scribblers whether it was accurate or not and to give whatever explanation was necessary. On Mr. Comeau's review of Mr. Murdock's affidavit, he knew or ought to have known that the information contained in and put forth by it was either inaccurate or untruthful. As the spokesman of Skipper, be was under an obligation to inform himself fully of the relevant facts. He either ignored the incorrect information, did not detect it or decided to go along with deception. Neither explanation is acceptable in terms of required disclosure. There is worrisome aspect of Mr. Comeau's evidence which plays part in my decision. When fishing captains arrive in port with their catch they are required to file report with the Department of Fisheries and Oceans. That report's first figure is the "hail weight" of their catch. That is the captain's estimate of the weight of the catch. The next figure on the report is the "true weight" which is to be supplied by the processor in this case, Skipper. Mr. Comeau was "generally aware" of this practice. He also knew that the true weight reported was the weight the fishing captain instructed the processor to report. It is not true weight at all, but rather, fictitious figure used by the captain for his own purposes. Mr. Comeau attempted to justify that practice as being within the industry standard an explanation which may be true but which must be rejected. Mr. Comeau said that the true weight "...is what the fishermen caused to be reported to the Department of Fisheries and Oceans...it might be combination of factors, but more of the time it would be what he could get away with, as fair way of putting it" ...as little as possible. This evidence was, at the least, clear indication of lack of responsibility. That evidence combined with the evidence adduced subsequent to Mr. Comeau's testimony about scribblers in which weight records were kept poses real question as to the reliability of the testimony as whole. Counsel for Skipper have urged that there is no evidence before me that it was Skipper or Skipper's employees who supplied the fictitious true weight. The only such report or reports before me were not apparently signed by Skipper. The thrust of Mr. Comeau's evidence, however, is clear and draw the conclusion that Skipper probably like other processors participated in this practice. Douglas Murdock's Evidence Mr. Murdock's evidence was less satisfactory than that of Mr. Comeau. Mr. Murdock must have known what information Mr. Thompson sought as he commenced fact‑finding for his report. Mr. Murdock had been detailed to calculate the business loss arising from the loss of the Sealife III landings and had initially attempted that calculation using the same method adopted by Mr. Thompson or one very much like it. Vital to that calculation was the weight of the fish received. Mr. Murdock said he had inquired of the Skipper manager, Mr. Douglas D'Eon, and was informed that Skipper did not weigh the fish coming into the plant. He told Mr. Thompson, in the presence of Mr. D'Eon, that there were no records of the weight of fish received. Both assertions appear patently untrue. Mr. D'Eon's evidence on discovery is clear that Mr. Murdock did not inquire about the truck scales or about the practice of weighing fish on delivery until after this application was under way. He also seriously misled Mr. Thompson on the use and value of roe‑extracted herring carcasses for producing herring fillets. His explanation to the Court of the information given to Mr. Thompson was not credible; that was the explanation that while the production of fillets from roe‑extracted herring had been significant in one year, it was not significant over longer period of time. That explanation showed lack of candor by Mr. Murdock to Mr. Thompson, if not an intention to mislead. Skipper sought to explain the non‑use of the weight of fish received as it did not take into consideration the trash fish which had to be rejected after weighing. That explanation was unsatisfactory. The discovery evidence tendered to me showed that the weight of the trash fish was estimated on discharge from the plant. Mr. Murdock's evidence before me concerning the calculation of compensation for roe herring was also unsatisfactory. It is difficult again to understand why estimates of weight would be used when the fish is being weighed on arrival at the plant, unless, of course, the estimates, like the reports to the Department of Fisheries and Oceans are understated. Mr. Murdock lacked credibility when he sought to distance himself from the filing of deceptive reports with Department of Fisheries and Oceans. The fact of the matter was that Skipper participated in that activity, whether Mr. Murdock was directly involved or not. Mr. Murdock said that all requests by Mr. Thompson for information were complied with. But when Mr. Thompson asked for such matters as "yields" and related data, the necessity for raw material data was at least impliedly necessary, and probably express. As it developed, at least some of that data was available, should have been produced but was not. Murdock Thompson Credibility There are marked differences between the evidence of Mr. Murdock and Mr. Thompson, especially in relation to what information Mr. Thompson requested of Skipper. All such differences have resolved in Mr. Thompson's favour. Almost without exception, Mr. Thompson's evidence was consistent within itself and with other objective evidence available to me. Mr. Murdock's testimony cannot be so described; rather, it was inconsistent within itself, with the evidence of other Skipper employees given on discovery and with objective evidence. Wherever there is any difference between the evidence of Mr. Murdock and Mr. Thompson and any material particular, accept the latter. In reaching that conclusion, have kept in mind that Mr. Thompson did on one or more occasions overstate the amount of "research" he had performed in the preparation of his report, but such overstatements do not affect my assessment of ultimate credibility on essential matters. Additional Discovery Evidence On November 23 the hearing of this application was adjourned while Mr. Thompson was being examined. Due to his required attendance at court in New Brunswick the adjournment was of several days duration. In that interim period examination in discovery continued in relation to the evidence given by Mr. Comeau and Mr. Murdock. am informed that Skipper's employees Mr. Douglas D'Eon, Mr. Bennie D'Entremont and Mr. Raymond John Panter were examined. Portions of the transcripts of their discoveries have been produced by Phoenix and Skipper and have reviewed them in detail. will not draw conclusions of the credibility of those witnesses. Their evidence, however, has been helpful in understanding the processes involved in this case. Their evidence has also been invaluable in the evaluation of the evidence of Messrs. Comeau, Murdock and Thompson. D'Entremont and D'Eon both gave evidence in discovery of the weighing of herring as it was received at the plant and the method used to do so. They also testified as to their contribution to the record‑keeping involved in the operation. The evidence concerning the records kept in the scribbers by D'Eon was only produced after specific questions were asked; that is, the scribblers were not mentioned or produced until November 26, when as result of specific questions, they were produced. The scribbler records were kept on daily basis, between the efforts of D'Entremont who gathered the raw information and gave it to D'Eon who then entered it into the scribbler. Skipper questions the accuracy and validity of the scribbler information. The fact of the matter is, however, that the information was gathered and recorded in the ordinary course of business. It really did not matter whether the weights of fish received were actual or estimated. The scribblers contained at least some of the information sought by Mr. Thompson and Mr. Murdock ought to have known of their existence and in view of Mr. Thompson's inquiries of him ought to have produced them for inspection. If Mr. Murdock did not know of their existence or did not know of the existence of the data contained in them, he ought to have informed himself before the commencement of his discovery. find it equally difficult to accept that Mr. Comeau did not know of the existence of the record or at least of the data. The accuracy of the information should not have impacted on the decision as to whether it ought to have been produced; that was matter to be tested and explored during discoveries or at trial. There was also evidence of the weight of the discarded fish mentioned above which has apparently not been produced. The plaintiff's position is that only the weight of the usable fish is relevant and that is determined by working backwards from the weight of the finished product. The evidence produced at the discovery of D'Entremont showed that record of the weight of the fish received was kept in the scribblers and the weight of the discarded fish was estimated from the volume of the trash fish trucked away to processing plant and recorded on system of "whiz‑slips". That information was also the type of data which ought to have been recognized by Mr. Murdock as that sought by Mr. Thompson. The information contained in the scribblers was considered by the plaintiff's own staff in its own cost analysis and in determining the amounts owed to the fishermen. Skipper's local accountant, Mr. Panter, used the information in the scribblers to check the invoices received from the fishermen. Indeed, Mr. Panter referred to 'Doug's scribbler" to obtain fish tonnages for the agreed purchase of fish. He entered the scribbler data into his computer. Although the scribblers were not produced to the defendant until November 26, 1993, the significance of the information contained in them relative to this lawsuit was recognized by the plaintiff's staff in 1990. Mr. Panter was then instructed by his superiors to prepare report concerning the loss of Sealife III's contribution to margin and was told to get the required information from the scribblers. Mr. Panter prepared report which was apparently discarded by the plaintiff as not being useful. That may well have been the case, but the important fact is that the first source of information considered was the scribblers. It is fact that Mr. Thompson asked Skipper for the information listed in paragraph 11 of his affidavit as follows: 1. the production summaries by month, tying into sales of each product for the years 1985 through 1990; 2. justification of prices for raw fish and backup invoices for the year 1985; 3. copy of the company general ledger showing direct labour for the period 1985 through 1990 and payrolls for the months of June and September of each year in question; 4. information concerning financing charges mentioned in the Doane Raymond report attributed to the Plaintiff company; 5. details of inventory of fish product held for the years 1985 through 1990; 6. selection of invoices for one year for salt, supplies, electricity and maintenance charges; 7. summary of the raw material used in the processing carried out by the plant for the years in question. Mr. Thompson says, and accept, that he was not supplied all the information he requested. Mr. Panter's discovery evidence is to the effect that information was available but not obtained. There may be question of the accuracy of the information which Mr. Panter would have been able to generate, but that was for counsel to explore during production of information and discoveries or interrogatories. It is obvious from the discovery evidence of Mr. D'Eon, Mr. d'Entremont and Mr. Panter that Skipper, through Mr. Murdock, had not made the required effort to obtain information requested by Mr. Thompson. In this regard find that Mr. Thompson had made it sufficiently clear to Mr. Murdock the information sought and it is equally clear that Mr. Murdock either did not make the required effort to obtain it or chose, rather, to filter the information supplied. Scribblers Weights Skipper had been obviously reluctant to produce the scribblers which contained record of weights of fish. While some questions or discrepancies seem apparent, it is clear that these books are record of weights of fish arriving at the plant. The scribblers are well kept and the entries appear to be carefully done. have considered the evidence given by Mr. D'Eon on discovery. It is apparent from the written transcript that Mr. D'Eon was evasive about the records, their meaning, their origin and their purpose. Yet the record had been carefully preserved and had been relied upon by other employees of Skipper. These facts must be considered in the context of Mr. Comeau's evidence of the deliberate participation by Skipper in the misreporting of catches to the Department of Fisheries and Oceans and Mr. Murdock's untruth about the existence and use of scales. Skipper's position is that the fishermen are paid on the basis of the production achieved from any given load of fish, but there is suggestion from the combined use of the scribblers and the invoices that it is far more likely that the fishermen' compensation was in direct relation to the size of the catch. Indeed, it is hard to conceive that fisherman would consent to sell his catch to fish plant, trust himself to the efficiency and conscientiousness of the employees of the plant and be paid only on what yield the plant managed to get. How then could the records of the calculation of the fishermen' compensation be maintained without originating record which will reflect the actual weight of catches? The obvious solution is to create an equation, the result of which will be to produce the compensation required without displaying the actual catch. That can be easily achieved by setting down the weight produced, modified by factors which appear to reflect the quality of the catch and the productivity achieved (both of which are variables) and which then produces the compensation required to be paid. The report to the Department of Fisheries and Oceans would be therefore satisfied and the fishermen would receive the compensation they had earned. Until the plant had received an invoice for the fish which it could approve, however, there had to exist some record of the fish actually received. Hence, the innocuous scribbler records would have been vital. Law Civil Procedure Rule 20 is clear and unequivocal. Litigants must make full and timely disclosure of documents. The adoption of this Rule was milestone in the road away from "trial by ambush" to the present. Production and discovery were foreign to the adversary process of adjudication in its earlier history when the element of surprise was one of the accepted weapons in the arsenal of the adversaries. This applied to both criminal and civil proceedings. Significantly, in civil proceedings this aspect of the adversary process has long since disappeared, and full discovery of documents and oral examination of parties and even witnesses are familiar features of the practice. This change resulted from acceptance of the principle that justice was better served when the element of surprise was eliminated from the trial and the parties were prepared to address issues on the basis of complete information of the case to be met. R. v. Stinchcombe, (1992) 1991 CanLII 45 (SCC), 130 N.R. 277 (S.C.C.) per Sopinka J., at 282. The late Chief Justice Cowan, who oversaw the adoption of the Rules as they presently exist, said of Rule 20: The purpose of this rule is to provide full disclosure prior to trial, of all relevant documents in the possession, custody or control of party. Kynock et al v. Johnson (1975), 20 N.S.R. (2d) 586 at 588. See also McRae et al v. Historic Properties Ltd. et al (1988), 89 N.S.R. (2d) 201, and C.M.H.C. v. Foundation Co. of Can. et al (1984), 63 N.S.R. (2d) 403. The failure of party to produce documents has attracted the sanction of the Court, including the dismissal of actions or the striking of defence. See: Church of Scientology of Toronto v. Maritime Broadcasting Co. Ltd., (1989), 33 N.S.R. (2d) 500; Kynock et al v. Johnson (supra); Halifax (County) v. Fancy (1992), 115 N.S.R. (2d) 196; and Kin Franchising Ltd. v. Donco Limited, (1993), 14 C.P.C. (3d) 193 (Alta. C.A.). Of those cases, however, those which resulted in dismissals, involved repeated failures to obey specific orders of the Court for production, refusals to attend for discoveries and failures to live up to specific undertakings. In my view the failures of the plaintiff here fall short of the flagrant disregard for the Rules considered in those cases. American case law is more developed in the consideration of litigation abuse. have had cited to me as examples the following: National Hockey League et al v. Metropolitan Hockey Club Inc. et al (1976), 427 U.S. 639; Cine Forty, Second Sheet Theatre Group v. Allied Artists Pictures Corp. et al (1979) 602F (2d) 1062; Founding Church of Scientology v. Webster (1986), 82F. 1448 (D.C.Crt.); Morgan v. Massachusetts General Hospital (1990), 901 (2d) (1st Crt.). The text, Sanctions, the Federal Law of Litigation Abuse by Gregory P. Joseph (Michie Company, 1989) sets forth at p.449 list of factors for consideration where there has been failure by party to comply with the Rules: 1. Dismissal or Default The court has discretion to dismiss an action or enter default judgment as sanction for any of the violations set forth in Rule 16(f). Among the factors that the court considers in deciding whether to enter an order of dismissal or default are: 1. The extent of the party's (as opposed to counsel's) personal responsibility for the violation; 2. The prejudice to the adversary caused by the violation; 3. Whether there is clear record of delay or contumacious conduct by the offender; 4. Whether the offense was wilful or in bad faith; 5. Whether the purpose of the sanction can be substantially achieved by use of less drastic alternative; 6. The merits of the claim or defense that would be stricken; and 7. The prejudice to the court caused by the violation. One of the most remarkable aspects of the reported Rule 16(f) case law is the prevalence with which dismissal or default is ordered. This may reflect nothing more than the courts' disinterest in writing opinions dealing with lesser sanctions, or perhaps parties' disinclination to appeal them. Whatever the explanation, the result is rather developed body of law concerning the factors to be taken into account by the courts in deciding whether to order dismissal or default. Dismissals with prejudice or defaults are drastic sanctions ‑‑ termed "extreme" by the Supreme Court in National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643 (1976) (Rule 37 case) ‑‑ and may properly be imposed only as last resort. Poulis v. State Farm Fire Gas Co., 747 F.2d 863, 867‑68, 870 (3d) Cir. 1984); Callip v. Harris County Child Welfare Dep't, 757 F.2d 1513, 1519 (5th Cir. 1985); Ford v. Fogarty Van lines, Inc., 780 F.2d 1582, 1583 (11th Cir. 1986). See also Shea v. Donohoe Constr. Co. 795 F.2d 1071(D.C. Cir. 1986). Because of its harshness to the client, the courts scrutinize the various factors set forth above and any others they deem relevant. Not all of the listed factors need to be present in order to sustain dismissal or default sanction. The judge's decision is discretionary and based on the totality of the circumstances before him or her. The case before me is not one in which the plaintiff might have been taken by surprise by the documents which it unexpectedly found to be relevant. This action was commenced six years ago and from its initiation the matter of the calculation of Sealife III''s contribution to margin was relevant. The plaintiff has undoubtedly been pressed for time in the last month or so prior to trial, but that does not excuse its previous inactivity. It is this regard than the present case is distinguished from Visa International Service Association v. Block Bros. Realty Limited [19831 N.W.R. 665 (B.C.S.C.T.D.) Conclusion In the circumstances of this case conclude that the plaintiff has not complied with Civil Procedure Rule 20.09(2) in that it has failed "...to make reasonable effort to give full discovery of all documents that relate to any matter in proceeding...." While such failure is serious and with very considerable financial implications, I am not persuaded that it was of such a degree of contumacious conduct as to warrant dismissal of the action. Nor do I conclude that its failure warrants a dismissal of any damage claim arising from loss of contribution to margin. conclude that the appropriate remedy is to recognize that the plaintiff has incurred wasted costs and to redress that subject, but allowing the action to continue. The plaintiff will be liable for: (a) Costs to date on solicitor‑client basis of each of the defendants for all time spent on this particular application and reasonable time spent in preparation for it; (b) Costs to date on solicitor‑client basis for all discoveries (or portions thereof) dealing with the matter of the weight of fish received at the Skipper plant and any other time spent to date on attempts to quantify the alleged loss of Sealife III's contribution to margin; (c) All throw‑away costs incurred by Mr. Grant Thompson in the preparation of his report. In regard to each of the three areas of costs, recognize that certain amount of work will be of value to the defendants in any event. It is not my intention that the defendants will be compensated for work done which will be of value to it in the course of an eventual trial. am sure that the delineation of such costs will present difficulties which would best be resolved by familiarity with the case. ask that the parties first attempt to resolve any questions or issues arising from this ruling and then, if necessry, will supervise the taxing of costs. will at that time be able to determine if any special considerations should be given to any party relative to costs. Objections to Discovery Evidence During the course of reading in certain discovery evidence disagreements developed between the parties as to the admissibility of answers to leading questions put to witnesses by his own counsel on re‑direct examination. In view of my conclusion reached above those questions are now largely moot. will, however, state my understanding of the problem and the law. need not review each question and answer objected to; that would be wasteful process because each would have to be put into the context of hundreds of pages of other questions. Civil Procedure Rule 18.14(1) and (2) reads: (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; (c) where the deponent is dead, or is unable to attend or testify because of age, infirmity, sickness, or imprisonment, or is out of the jurisdiction, or his attendance cannot be secured by subpoena, or exceptional circumstances exist that make it desirable in the interest of justice to allow the deposition to be used, for any purpose by any party. (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 witness D'Eon was an employee of the plaintiff, directly involved in an aspect of the plaintiff's operation significant to the matters in issue. He was examined by defendants' counsel. The form of that examination was wide and had the appearance of cross‑examination. That is undoubtedly the acceptable form of asking questions on discovery in Nova Scotia. Counsel for the plaintiff then examined Mr. D'Eon. Many of the questions objected to were unquestionably leading in that they: (a) called only for "yes" or "no" answer; or (b) suggested the answer; or (c) suggested fact which bad not been established. Defence counsel have submitted, therefore, that the plaintiff was not entitled to ask such questions of witness as the evidence so elicited was not admissible under the Rules of Evidence. Plaintiffs counsel has submitted that answers to leading questions may be read in to explain or qualify answers given under direct examination and disovery. He cites in support of his position Williston and Rolls, The Conduct of An Action (Butterworths, 1982) at p.79: question may be objectionable as leading on one of two grounds: (I) if it suggests the answer desired; or (ii) if the question assumes controverted fact about which the witness has not testified. However, not every question would suggest the answer is improper, and not all leading questions are objectionable.... What is leading question is not easily answered, because there is no absolute prohibition against it. On many occasions leading questions are not only proper but are to be recommended and, in other instances, what might have been leading question if looked at in isolation is not leading because of the context in which it was put. This is so because it is not always possible to tell whether question is leading without considering the evidence as whole. Thus 'leading' is relative, not an absolute term. There is no such thing as 'leading' in the abstract for the identical form of question which would be leading of the grossest kind in one case or state of facts might be not only unobjectionable, but the very fittest mode of interrogation in another. And at p.80: The general rule is not that no leading question may be asked, but rather that on material points in issue, one must not lead his own witness. But on points that are merely introductory and form no part of the substance of the inquiry, one should lead. If disputed fact is inserted as part of the question and the witness must assume such fact in order to answer the question, the question is leading. Mr. D'Eon was witness obviously allied to the plaintiff. Questions had been asked of him by defence counsel which elicited answers potentially harmful to the plaintiffs position. Some of the questions asked by the plaintiffs counsel suggested answers contrary to, and in some cases negating, the previous response. have considered that such questions and answers are inadmissible. do not consider unacceptable questions which lead in an introductory matter, recapitulate point in evidence, direct attention to particular point or to another witness's testimony, Indeed, such questions are not considered cross‑examination. Where, however, the question is leading and suggests answers on an important point, have for my purposes ignored that evidence. consider that D'Eon, as an employee of the plaintiff; should be governed by much of the same considerations as party. Choate's Discovery in Canada (Carswell, 1977) at p.150, states: (f) Re‑examination by own counsel A586 person examined for discovery may be further examined by his own counsel in relation any matter respecting which he has been so examined. It is an explanatory examination and is for no other purpose than to enable person who has been examined to give such explanation on further examination by his own counsel as may appear to be necessary for the purpose of making clear the matters upon which he has already been examined. The witness may by way of explanation add to the facts already given even though it may result in variation or change in his evidence. In this case many of the questions went beyond request for explanation and suggested the desired response. recognize that Choate refers to the practice in Ontario and there major distinction between the Ontario Hiles and Nova Scotia's Civil Procedure Rules. Mr. D'Eon was not party to the action but in my view he was so directly connected with the corporate party that the prohibition of leading questions ought to apply. In any event, those questions and answers objected to would not have changed the result of this application. The Continued Action recognize fully that the conclusions have reached in this application are based on partial information only; that is, they are not based on full trial. My conclusions with respect to credibility and facts should not be confused with the findings of fact and credibility necessary in the final determination of any cause of action. am satisfied, however, that in order to reach an appropriate conclusion in this particular application, findings of fact and credibility were essential. Therefore, this decision, while it will be printed and available to counsel, will not be placed in the file in the usual fashion and it will not be available for consideration until the trial is completed. There will be two orders granted. One will give the full effect of this decision which will be sealed with the decision. The other, public order, will simply order the trial be adjourned without day. The findings of fact and credibility which make now ought to prevent me from continuing to sit on this case. As this is an application made prior to the commencement of the trial, do not consider myself seized with the matter. Counsel are encouraged to approach Chief Justice Glube to obtain the assistance of case management for the furtherance of the matter. J. Halifax, N.S.

The defendants applied at the opening of the trial for dismissal alleging the plaintiffs had been misleading and had deliberately failed to disclose important information. Dismissing the application, that while the plaintiffs had failed to comply with Civil Procedure Rule 20.07, dismissal of the action was not warranted. The plaintiff was held liable for solicitor-client costs associated with the application and discoveries.

1994canlii4195.txt

GRUCHY, J. S.C.A. No. 02704 NOVA SCOTIA COURT OF APPEAL Jones, Hallett and Chipman, JJ.A. BETWEEN: JOSEPHINE JUNE MOOY and CORNELIUS GERARDUS MOOY M.G. Forse, Q.C. M.V. Coyle for the appellant Steven G. Zatzman for the respondent Appeal Heard: December 9, 1992 Judgment Delivered: February 25, 1993 THE COURT: Appeal allowed without costs and the judgment and order of Hall, L.J.S.C. set aside per reasons for judgment of Jones, J.A.; Chipman, J.A. concurring by separate reasons and Hallett, J.A. dissenting. JONES, J.A.: This is an appeal from a decision of Hall, L.J.S.C. reducing the appellant\'s support from $2,000.00 to $1200.00 per month. The parties were married on September 9, 1961. There were three children of the marriage. The wife remained at home and raised the children. The respondent operated his own business as life insurance broker. The parties separated on February 22, 1983. In 1983 they signed settlement agreement with the advice of counsel. The following clauses are contained in the agreement: "(4) Commencing January 1, 1988, and on the first day of each month thereafter the Petitioner shall pay to the Respondent maintenance in the amount of $2,000 while she resides in the matrimonial home. The sale of the matrimonial home shall be regarded as change of circumstances and the amount of maintenance shall be reviewed by the Parties. If they are unable to reach agreement either may apply to the court for variation of the Corollary Relief pursuant to the provisions of the Divorce Act 1986. (5) The Respondent recognizes her obligation to contribute to her own support and will continue her efforts to find employment. (16) Of the total amount of cash owing by the Petitioner to the Respondent ($7,300 plus $20,285, total of $27,585) $8,000 shall be paid upon entering into this agreement and the remaining $19,585 shall be paid in five annual instalments due on November 1, 1988, 1989, 1990, and 1991, respectively, four of which shall be $4,000 each and the final one shall be $3,585. The Petitioner reserves the right to accelerate these payments at any time. (24) It is expressly agreed by and between the parties that this settlement constitutes full and final settlement on all corollary matters between the parties." On December 21, 1987, the parties were divorced. The agreement for maintenance was incorporated in the order for corollary relief. At the time of the present application the respondent was 57 and the appellant 53. The respondent has remarried. The appellant has not remarried and continues to reside in the matrimonial home. On June 23, 1989 the respondent applied to terminate the maintenance payments. The application was dismissed on April 10, 1990. There have been defaults in making the maintenance payments. On February 10, 1992, the respondent applied to the Family Court to have the arrears forgiven. On February 24, 1992, the application was dismissed. On February 26, 1992, the respondent commenced the present application to vary and suspend retroactively the amount of maintenance paid to the appellant. In 1987 the respondent's gross total income was $79,445.00. In 1991 his total income was $35,507.10. With respect to this drop in income Judge Hall stated: "The petitioner accounts for the significant drop in his income by the fact that with his advancing age he is not able to work as hard and as effectively as he did previously. At the time of the divorce he worked an average of sixty hours per week, whereas now he feels he can only work 35 to 40 hours per week. He also had serious health problem in 1991 which incapacitated him for approximately five months. As result his income declined radically and he fell into arrears with respect to the maintenance payments. The arrears were subsequently paid out of an R.R.S.P. fund that was cashed. The respondent has for sale portion of the land adjacent to the matrimonial home for $35,000.00. She has not received any satisfactory offers to date. It seems that in large measure in recent years the petitioner has been able to meet the maintenance payments which total $24,000.00 per year by drawing on the retained earnings of his insurance sales company. It also appears that the company suffered severe loss in 1991 as result of one or more of its most important accounts being lost. As result of this and the excessive withdrawals by the applicant the company is now in deficit position. The loss of the accounts have also been significant factor in the applicant's annual income being reduced." Notwithstanding the setback in his health the respondent successfully ran for the Kings County Council. The application was supported by financial records from the respondent's company. There were additional payments in excess of $20,000.00 made by the Company to the respondent in 1991. There was also evidence that the respondent had investment properties. It is clear from the evidence that the appellant is dependent on the respondent for support and the trial judge so found. The learned trial judge referred to the judgment in Pelech v. Pelech, 1987 CanLII 57 (SCC), [1987] S.C.R. 801. He distinguished that decision by stating: "It is well established in the jurisprudence that the Court may in proper case intervene to vary the amount of maintenance payable under separation agreement incorporated in divorce judgment. The Court will do so, however, only where radical change of circumstances has been established by the applicant. Where the circumstances are such as in Pelech or analogous thereto the applicant must also establish that the change in circumstances had its 'genesis' in the marriage. Where the basis for the relief sought is not such as in Pelech it is not necessary, in my opinion, that the applicant establish any connection between the change in circumstances and the marriage. Indeed, it seems to me that to attempt to rigidly adhere to the terms of the agreement would be folly in this case as it is absolutely impossible for the applicant to do so and survive. Accordingly, am satisfied that the petitioner has established that there has been radical change in his financial and other circumstances which mandate reduction in the amount of maintenance payable." In Pelech v. Pelech, Wilson J. defined the issue as follows at p. 826: “The central issue in this case concerns the effect of valid and enforceable antecedent settlement agreement on the court's discretionary power under s. 11(2) to vary maintenance orders." She then pointed out that maintenance agreement can never totally extinguish the jurisdiction of the court to impose its own terms on the parties. At p. 850 Wilson, J. stated: “The approach taken by Zuber J.A. in Farguar also falls short of articulating workable criterion by failing to identify the requisites of the 'narrow range of cases'. do, however, agree with Zuber J.A.'s emphasis on the importance of finality in the financial affairs of former spouses and that considerable deference should be paid to the right and the responsibility of individuals to make their own decisions. It seems to me that where the parties have negotiated their own agreement, freely and on the advice of independent legal counsel, as to how their financial affairs should be settled on the breakdown of their marriage, and the agreement is not unconscionable in the substantive law sense, it should be respected. People should be encouraged to take responsibility for their own lives and their own decisions. This should be the overriding policy consideration." She went on to deal with those cases where court could intervene and set out the requirement "that there be some relationship between the change and the marriage". The basic principle in Pelech is that. settlement agreements must be respected. See in this Court Jensen v. Jensen 1992 CanLII 2565 (NS CA), 109 N.S.R. (2d) 106 and Kalavrouziotis v. Kalavrouziotis, 14 R.F.L. (3d) 376 where this Court has followed that principle. That principle has been confirmed in the recent decision of the Supreme Court of Canada in Moge v. Moge dated December 17, 1992 (unreported). There are strong policy reasons for enforcing separation agreements. Such agreements are contemplated under the Matrimonial Property Act and the Divorce Act. Parties who effect their own settlements are more likely to abide by them. These agreements avoid the necessity of costly litigation. Those objects are important in settling matrimonial disputes particularly where children are involved. The parties have the right to make their own agreement with the advice of counsel. They also have the right to expect the courts to enforce those agreements in the same manner as any other agreement. The knowledge that agreements will be enforced is essential if counsel are to be in position to advise their clients. wife chooses to follow her husband's fortunes good or bad. divorced spouse is not in the same position. She has lost all benefits which stem from the marital relationship. Statistics show that spouse, particularly with children, is in much poorer position following divorce. The purpose of an agreement is to stablilize the parties position as best they can at the time of separation. In most cases the husband is anxious to terminate all aspects of the association. In such cases the wife makes substantial concessions and gets minimal benefits. To review these agreements particularly after the lapse of substantial periods of time can lead to grave injustices to one or both parties. In many cases it would be necessary to review all of the terms of the agreement in order to deal appropriately with an application to vary. The matter should normally be left in the hands of the parties. Having settled their rights it is up to the parties whether they will surrender those rights. have no doubt in this case that if the appellant applied for an increase in maintenance she would be confronted with the terms of the agreement by the respondent. see no difference between an agreement which provides for long term maintenance and one that does not contain such provision. The effect is to permanently settle the issues in both cases. As noted Pellech does not deprive the courts of ultimate jurisdiction in the matter of support. The parties can provide in the agreement that it is final settlement. No other formal words are necessary. It is unnecessary in the present case to consider those circumstances which would warrant variation in support under an agreement. The Family Court had thoroughly reviewed the circumstances of the parties on two occasions and refused to grant relief. In my view the circumstances in this case did not warrant variation. change in one year in the respondent's financial circumstances was not sufficient to vary the agreement entered into between the parties. The learned trial judge erred in failing to apply the principles in Pellech. would allow the appeal without costs and set aside the judgment and order of Hall, L.J.S.C. J.A. CHIPMAN, J.A.: (Concurring by separate reasons) The appeal should be allowed. agree with Mr. Justice Hallett that the causal connection test established in Pelech should not apply in cases where payor spouse seeks reduction of consensual support obligation. In such case, that test is not appropriate in considering "means" under s. 17 of the Divorce Act. However, where the circumstances disclose an intention that finality in the financial relationship was intended, the principles in Pelech should otherwise apply in their full vigour. The threshold for determining radical change in circumstances is high. It includes, suggest, an element of unforeseeability by the parties as of the time the consensual arrangement is arrived at. In Katz v. Katz, et al. (1990), 1990 CanLII 8006 (MB CA), 30 R.F.L. (3d) 260, the Manitoba Court of Appeal refused to disturb support order based on mutual agreement notwithstanding that there was substantial adverse change in the payor's earning power. Helper, J.A. said at p. 265: "In Pelech, supra, the Court was dealing with an application by the former wife to reinstitute maintenance payments which had terminated in accordance with the terms of separation agreement. The facts in this case are distinguishable. Thus, the principles enunciated in Pelech are not entirely applicable to the case at Bar. However, am of the view that, where parties have negotiated final separation agreement incorporating not only maintenance provisions but also property distribution, and the terms of that agreement are reflected in subsequent court order, only radical change in the circumstances of the payor, not within the specific contemplation of the parties, would allow for review of that court order dealing with on‑going maintenance. At the time the parties executed the separation agreement, the husband was 60 years of age and the petitioner was 56 years of age. It was certainly within the contemplation of the parties that the husband would not, in all likelihood, during the entire life of the separation agreement, continue to earn income of $80,000 per annum. Therefore, his change in annual income to the present level of $43,000,although substantial, is not, by itself, the type of radical change in circumstance that would in this case trigger the Court's jurisdiction in reviewing the decree nisi." See also the annotation by James G. MacLeod in Kalavrouziotis v. Kalavrouziotis (1988), 14 R.F.L (3d) 376 377, Story v. Story (1989), 1989 CanLII 5317 (BC CA), 23 R.F.L. (3d) 225 (B.C.C.A.) at 232, Fyffe v. Fyffe (1988), 1988 CanLII 4569 (ON CA), 12 R.F.L (3d) 196 at 201, Masters v. Masters (1991), 1991 CanLII 8022 (SK CA), 34 R.F.L (3d) 34 (Sask. C.A.). The review under s. 17 of the Divorce Act must be conducted with view to the circumstances surrounding the settlement agreement and the present circumstances now alleged to be radically different. The trial judge's decision must not be interfered with on appeal unless the reasons therefor disclose material error. Here the parties disclosed an intention to reach final agreement. The agreement dated December 3, 1987 and incorporated into the corollary relief judgment dated December 21, 1987 provided inter alia: "(4) Commencing January 1, 1988, and on the first day of each month thereafter the Petitioner shall pay to the Respondent maintenance in the amount of $2,000 while she resides in the matrimonial home. The sale of the matrimonial home shall be regarded as change of circumstances and the amount of maintenance shall be reviewed by the Parties. If they are unable to reach agreement either may apply to the court for variation of the Corollary Relief pursuant to the provisions of the Divorce Act 1986. (5) The Respondent recognizes her obligation to contribute to her own support and will continue her efforts to find employment. (16) Of the total amount of cash owing by the Petitioner to the Respondent ($7,300 plus $20,285, total of $27,585) $8,000 shall be paid upon entering into this agreement and the remaining $19,585 shall be paid in five annual instalments due on November 1, 1988, 1989, 1990, and 1991, respectively, four of which shall be $4,000 each and the final one shall be $3,585. The Petitioner reserves the right to accelerate these payments at any time. (24) It is expressly agreed by and between the parties that this settlement constitutes full and final settlement on all corollary matters between the parties." (emphasis added) The parties had counsel. They specifically provided for one instance that would be regarded by them as change of circumstances justifying review. It is inconceivable that they did not understand that substantial variations in the income of the husband self‑employed business man‑ could occur. Such changes in this context could not be considered radical unless they were permanent or substantially long‑standing, such as for example the stroke referred to by Mr. Justice Hallett. The Pelech principles and the emphasis on finality by the parties here clearly requires such rigorous approach to request to vary. The reality is that within 18 months of the judgment the husband here commenced proceedings to terminate maintenance. These proceedings were not successful. There were several defaults by the husband resulting in judgments for arrears. An application for forgiveness of these arrears was dismissed just two days before these very proceedings were commenced. The trial judge had evidence of the husband's accountant who prepared his 1991 income tax returns and financial statements of his business. While the latter certainly support an argument that for future years the outlook was not as good, it would be unsafe to thaw any hard conclusions too soon. The after tax cash flow position of the husband in 1991 was not materially, let alone radically, worse off than it was at the time of the agreement. Clearly, at $54,000, such cash flow could have comfortably permitted support payments of $24,000 in 1991. The trial judge did not even refer in his reasons to this significant evidence of the accountant. He simply referred to "a projected annual income of approximately $32,000" of the husband. That is not safe conclusion in dealing with person in business of the nature of that carried on by the husband. The argument that the husband's age was advancing does not, in the short space of time since the corollary relief judgment, successfully convey the impression of radical change. See Katz v. Katz, supra. As Mr. Justice Jones says, change in one year in the financial circumstances is not sufficient. agree with him that the trial judge erred in failing to apply the principles in Pelech. He ignored the recognition of finality by the parties in their consensual arrangement. He ignored, by categorizing as radical change, that which was not shown to be more than temporary foreseeable ups and downs in the financial life of businessman. would allow the appeal and set aside the judgment and order of Hall, L.J.S.C. J.A. HALLETT, J.A. (Dissenting) have read the reasons of Justice Jones for allowing the appeal. With respect, would dismiss the appeal. agree with the learned chambers judge that the criteria for granting variation of spousal support as developed in Pelech v. Pelech (1987), 1987 CanLII 57 (SCC), 38 D.L.R. (4th) 641 should not be applied in this case. In Pelech Wilson, J., after thorough review of the case law respecting applications for variation of spousal support that had been agreed to by the parties pursuant to Minutes of Settlement incorporated into the corollary relief judgment, reached certain conclusions that are well set forth in the headnote of the case as follows: “Section 17(2) of the Divorce Act, which empowers court of appeal to "pronounce the judgment that ought to have been pronounced", does not confer broad power to review discretionary decisions. provincial court of appeal should only interfere with trial judge's decision where it is persuaded that the reasons disclose material error and the court has no independent discretion to decide questions of maintenance. The Supreme Court of Canada, however, has jurisdiction to articulate the criteria according to which judicial discretion must be exercised and any situation in which court below errs in formulating the principles upon which it exercises its discretion gives rise to question of law. It is well established principle that court supervisory jurisdiction over maintenance cannot be extinguished by contract. There has been general trend in the case‑law in fashioning maintenance orders away from "fault" in the direction of achieving arrangements that are fair and reasonable in light of all the circumstances. Where parties have negotiated their own agreement, freely and on the advice of independent counsel, as to how their financial affairs should be settled on the break‑down of marriage, and that agreement is not unconscionable in the substantive law sense, it should be respected. People should be encouraged to take responsibility for their own lives and their own decisions. The court's jurisdiction, however, is not ousted and may be exercised where there has been radical change of circumstances. However, the radical change must be related to the fact of the marriage. Where wife has devoted herself exclusively to home and children and has acquired no working skills outside the home, the relationship is readily established as the ex‑wife's circumstances are generated as consequence of her total dependency during the period of marriage. However, where former spouse simply falls upon hard times, that spouse should not be able to fall back upon the former spouse no matter how radical the change may be, simply because they were once husband and wife. Accordingly, where former spouse establishes that he or she has suffered radical change in circumstances forming from an economic pattern of dependency engendered by the marriage, the court may exercise its relieving power. Otherwise, the obligation to support the former spouse should be, as in the case of any other citizen, the communal responsibility of the State. In the present case, while there had been radical change in the wife's circumstances, there was no link between the change and her former marriage." In the Pelech case, the payee spouse had agreed at the time of separation that there would be payment of $28,760. over 13 months; the payments were made. The agreement provided that the payee spouse accepted the payments "in full satisfaction of all claim she now has or may have in the future for maintenance from the Respondent." The application to vary was made 12 years after the settlement. It is important to recognize that the conclusions of Madam Justice Wilson in the Pelech case were made in the context of this type of settlement agreement. The wife had accepted lump sum payment; there was no ongoing requirement for periodic support from the husband. The parties had agreed to be self‑sufficient; incidentally, one of the goals of s. 15 of the Divorce Act. There was truly finality to the financial relationship between the parties. The so‑called trilogy of cases: Pelech v. Pelech, supra; Richardson v. Richardson (1987), 1987 CanLII 58 (SCC), 38 D.L.R. (4th) 699; and Caron v. Caron (1987) 1987 CanLII 59 (SCC), 38 D.L.R. (4th) 735 which developed the policy considerations have set out from the report of the Pelech decision each involved situations of this nature. In each of these cases, the divorcing spouse had entered into settlement agreement that contained provisions for the termination of support. Furthermore, in each case, the payee's application to vary was made after support payments provided for by the agreement had ceased. The application to vary was denied in all of these cases due to the fact that the parties had, by their agreement, clearly provided for the termination of their financial relationship. In Richardson, Wilson J., writing for the majority, explored the rationale underlying the policy that court should vary settlement agreement only where there has been radical change in the circumstances of former spouse and that the change is as result of pattern of economic dependency generated by the marriage relationship. In particular, she pointed to two considerations. First, she noted the importance of finality in settling the financial affairs of the former spouses. Secondly, she pointed to the deference to be given by the courts to the right and responsibility of individuals to make their own decisions. The parties in Pelech had negotiated an agreement that provided for the spouses' financial independence from one another following the marriage breakdown. One of the legislated objectives of support orders is to promote the economic self‑sufficiency of each former spouse within reasonable time. The decision in Pelech that the disadvantaged spouse is restricted in coming back to re‑open the issue of support is consistent with this legislated objective. But where disadvantaged former spouse negotiates an agreement that provides for periodic support for an indefinite period, there is recognition that economic self‑sufficiency is not likely attainable. On divorce, the general rule is that matrimonial assets are divided equally. In addition, if the marriage was of fairly long duration and the wife did not work, there is generally need for indefinite periodic support, particularly if the parties are well into middle age or older. In the majority of cases, the parties reach an agreement on the division of assets and the amount of periodic support and enter into minutes of settlement. If the wife has not worked during the marriage and has not any specific skills, it is recognized that her former husband will have to pay support indefinitely as the objective of economic self‑sufficiency is unrealistic. The level of support agreed upon is based on the husband's ability to pay and the wife's needs at the time the agreement is signed. If either his means to pay or her needs radically change, the parties would reasonably expect that there could be change in the amount of the support payments even though the agreement may purport to be final settlement. Any other conclusion would, in my view, unduly restrict the application and purposes of s. 17 of the Divorce Act. tend to agree with those cases that hold that the causal connection test established in Pelech should not apply to payors of periodic support for an indefinite period. do not, however, reach this conclusion on the basis that the application is brought by the payor. Rather, the relevant distinction relates, as indicated above, to the nature of the agreement. It is the agreement itself which reveals whether or not the relationship is intended to be an ongoing one. Agreements which provide for payment of indefinite periodic support do not have that degree of finality that was effected by the settlement agreement under consideration in the Pelech case. Looking at the husband and wife relationship in traditional marriage, wife, who is dependent on her husband's income during the marriage has the benefit of his good times and suffers when his income falls. One must ask the question whether she should be better off after divorce than before if her husband suffers financial misfortune while paying periodic support under the terms of settlement agreement; pose the question because that would be the effect of applying the causal connection test. In my opinion this principle espoused in Pelech, Richardson and Caron should be confined to similar cases. Each case must be decided on its own facts. While the statements in the trilogy are very broad they were nevertheless made in the context of applications to vary by the payee spouse in circumstances where the payor had completed all his financial obligations under the settlement agreement; there was no ongoing financial relationship between the parties. Furthermore, it is difficult to imagine under what circumstances payor of periodic support who had radical reduction in income could ever prove that his or her deteriorating financial circumstances were causally connected to the marriage. For example, payor spouse, having signed an agreement to pay periodic support for an indefinite period, who suffers serious stroke and, as result, has total inability to earn income, could not, on the strict application of Pelech proposed by the Respondent, succeed on an application to vary support as the radical change in circumstances was not grounded in the marriage. It seems to me that Madam Justice Wilson in writing Pelech could not have intended that the causal connection test would apply in such situation. agree with the conclusions of Vancise, J.A. in Masters v. Masters (1991), 1991 CanLII 8022 (SK CA), 34 R.F.L. (3d) 34 that the full thrust of the Pelech analysis should not be transplanted to factual situations which are considerably different (p. 58). Unless party has explicitly agreed not to apply for variation of periodic support, s. 17 should be given its full effect in the event of radical change in the means of the payor or the needs of the payee. Although parties cannot oust the jurisdiction of the court if the terms of the settlement provide that party would not apply under any circumstances to vary the periodic support provisions, such an agreement should generally be respected by the courts as it would express clear intention that the level of support payments was written in stone. In summary, settlement agreement that provides for payment of periodic support for an indefinite period is very different than the type of agreements under consideration in the trilogy. One has to ask the question whether the parties who enter into agreements that provide for periodic support had the reasonable expectation that the periodic support payment would go on indefinitely at the same level no matter what happened in their respective lives. In the absence of explicit agreements not to apply for variation under any circumstances, it seems to me the parties would have had reasonable expectation, considering the provisions of s. 17 of the Divorce Act and the legal advice they would obtain, that in the event of radical change in circumstances there could be variation in the level of support payments. Where parties have signed minutes of settlement applications to vary periodic support should rarely be granted; parties should be bound by their agreements. It is only if there is radical change in the circumstances should such applications be entertained. Judges should carefully scrutinize the legitimacy of such applications before granting variation. do not find the foreseeability test as propounded by some authorities as particularly helpful; one can argue that virtually any misfortune is foreseeable such as loss of job, health, etc. The causal connection test is appropriate in circumstances where the parties, by agreement, have clearly severed their financial relationship and the application to vary is brought after the financial obligations as provided in the agreement have been fulfilled. In the case we have under consideration the payor's income had dropped from $80,000.00 annually when the agreement was signed to $32,000.00 at the time of the application to vary. The respondent testified that the combined effect of (I) his inability to work the 60‑hour weeks he could when he was younger man, (ii) the poor economy, and (iii) the loss of key clients was the reasons for the substantial reduction of his income from the levels of 1987 when the settlement agreement was made. It is apparent that the trial judge accepted his evidence. In February 1992 the respondent had unsuccessfully applied to the Family Court to have arrears forgiven. He then cashed in an RRSP and paid the net proceeds of some $17,000.00 to pay up the arrears. The application to vary was initiated on February 26, 1992, and was heard by Judge Hall on March 24 and 31, 1992. By decision dated April 15, 1992 Judge Hall reduced the monthly support payment from $2,000.00 to $1,200.00. The learned trial judge had before him financial statements from both parties showing their respective incomes and expenses. The position of the respondent was that he could not afford to pay $24,000.00 year support out of an income of $32,000.00. The appellant wife's position was that in 1991 he had cashed distribution from his company of $53,000.00 consisting of salary of $28,000.00 and repayment to him of shareholders loan of $25,000.00 and therefore he had the ability to pay the $2,000.00 month support. Her counsel argued that the respondent's alleged inability to generate more income was not causally connected to the marriage and therefore on counsel's interpretation of the decision of Wilson J. in Pelech v. Pelech, supra, the variation should have been refused as the support payment of $2,000.00 month had been agreed to by the parties pursuant to the settlement agreement. Judge flail in his decision, after reviewing the facts, concluded that the respondent had only been able to pay the annual support payment of $24,000.00 by drawing on the retained earnings of his company to the point where the balance sheet as of December 31, 1991, showed deficit. The learned chambers judge considered the provisions of s. 17 of the Divorce Act and the Pelech decision. He concluded: In the present case the applicant is seeking reduction in the amount of maintenance payable due to his radically reduced income and deterioration in his financial circumstances, which am satisfied are beyond his control. It is apparent that if he is compelled to continue making the payments provided for in the current order he will soon be driven to bankruptcy. It is also apparent that this change of circumstances is not causally connected to the marriage." He felt the Pelech case had no application on the facts before him and stated: “...it seems to me that to attempt to rigidly adhere to the terms of the agreement would be folly in this case as it is absolutely impossible for the applicant to do so and survive. Accordingly, am satisfied that the petitioner has established that there has been radical change in his financial and other circumstances which mandate reduction in the amount of maintenance payable." Court of Appeal should only interfere with trial judge's decision on variation application if the reasons for the decision disclose material error (Pelech v. Pelech, supra). In my opinion Judge Hall had the benefit of seeing and hearing Mr. Mooy testify; he accepted the evidence of Mr. Mooy that he could not longer earn the levels of income he was achieving when the minutes of settlement were signed. One cannot say the trial judge erred in his assessment of the evidence respecting the respondent's ability to pay. In my opinion, on the facts of this case, the learned trial judge did not err in not applying the so‑called "causal connection test" enunciated in 1987 in Pelech. Considering the circumstances at the time the agreement was signed in 1983 the parties would not have had the expectation that the level of support would be varied only if there was radical change in their financial circumstances that had its genesis in the marriage. The settlement agreement does not rule out the option of applying for variation. The parties expectation would have been that the periodic support could be varied according to the criteria prescribed by s. 17 of the Divorce Act. would not interfere with the trial judge's conclusion that there was radical change in the appellant's financial circumstances that warranted reduction of support from $2,000.00 month to $1,200.00. would dismiss the appeal with costs to the respondent. J.A. No. 1201‑37883K F. No. 5914K This page contained graphical images which may only be viewed in the original decision. IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: CORNELIUS GERARDUS MOOY and JOSEPHINE JUNE MOOY RESPONDENT HEARD: At Kentville, Nova scotia, on the 31st day of March, 1992. BEFORE: The Honourable Judge Donald M. Hall, Local Judge. DECISION: April 15, 1992. COUNSEL: Steven G. Zatzman, Esq., Counsel for the Petitioner. Michael G. Forse, Q.C. Counsel for the Respondent. S.C.A. No. 02704 NOVA SCOTIA COURT OF APPEAL BETWEEN: JOSEPHINE JUNE MOOY ‑and- CORNELIUS GERARDUS MOOY REASONS FOR JUDGMENT BY: JONES, J.A.

This was an appeal from a decision varying the appellant's maintenance downwards. The parties had a traditional marriage, with the wife remaining at home and caring for their three children. Upon separation, they entered into a settlement agreement whereby maintenance was set al. $2000 monthly while the appellant remained in the matrimonial home. The agreement stipulated that the settlement was a full and final settlement on all corollary matters between the parties. The respondent subsequently remarried, underwent some difficult financial times and made the application which was the subject of this appeal. The appellant contended the terms of the agreement were final. Per Jones, J.A. and Chipman, J.A. (concurring for separate reasons), allowing the appeal and setting aside the lower court order, that while courts have ultimate jurisdiction in the matter of support, settlement agreements must be respected. There is no difference between an agreement which provides for long term maintenance and one that does not contain such a provision. The effect is to permanently settle the issue in both cases. To review the agreement, particularly after the lapse of a substantial period of time, could lead to grave injustices to one or both parties. Per Hallett, J.A., (dissenting), dismissing the appeal, that a settlement agreement which provides for periodic support payments indefinitely is very different than one which contains provisions for termination of support after a specified period. The causal connection test established in Pelech v. Pelech (1987), 38 D.L.R. (4th) 641, should not apply to payors of periodic support for an indefinite period. Such agreements do not have the degree of finality that was effected by the settlement agreement under consideration in the Pelech decision.

1993canlii3174.txt

2001 SKQB 39 Q.B.G. 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 RESPONDENTS (PLAINTIFFS) and HAGBLOM CONSTRUCTION (1984) LTD., MARCEL FORTIER, GREG MARQUIS and JOHN MACAROCHA APPLICANTS (DEFENDANTS) and CITY OF SASKATOON and WILLIAM HEWITT and EDWARDS AND EDWARDS ARCHITECTS LIMITED and PHILIP M. SCOTT ARCHITECT LTD. and MARCH SCHAFFEL ARCHITECTS LTD. and THE ARCHITECTS COLLABORATIVE and DAVID CARLYLE EDWARDS and WILLIAM EDWARDS and PHILIP M. SCOTT and ANN E. MARCH and FRANK WILLIAM SCHAFFEL and COCHRANE ENGINEERING SERVICES INC. and JEFFREY REICHERT THIRD PARTIES Shaunt Parthev and for the respondents (plaintiffs) Shannon L. Metivier William B. Purdy and for the applicants (defendants) Colin D. Clackson JUDGMENT McLELLAN J. January 24, 2001 [1] The defendants bring this application to compel responses to a large number of questions that were objected to at examinations for discovery of the proper officers on behalf of Saskatchewan Property Management Corporation ("SPMC"). They also seek an order requiring SPMC to comply with numerous undertakings. [2] On September 15, 1998, the plaintiffs issued statement of claim for damages in excess of $7,000,000.00 resulting from fire which broke out in the Tower at the Kelsey Campus in Saskatoon on January 5, 1997. [3] It is alleged in the statement of claim that the fire was caused by work done by the defendants at the Kelsey Campus on January 3, 1997 which involved the application of "Torch on" air vapour barrier to the northeast corner of the Tower. [4] The defendants filed statement of defence on October 21, 1998 and have subsequently brought third party proceedings against the City of Saskatoon, Fire Chief William Hewitt, and numerous architects and engineers. It is common ground that at the time the "Torch on" was applied to the Tower, the architects and engineers were involved in comprehensive assessment of several SPMC facilities including the Kelsey Campus. The work performed by the defendants was done in conjunction with that assessment. [5] The plaintiffs conducted examinations for discovery of the defendants on June 16, 17 and 18, 1999. [6] Counsel agreed, given the various levels of organization of SPMC, that three individuals from the corporation would be designated as proper officers for SPMC. It was hoped that by proceeding in this fashion it would minimize the number of undertakings. Counsel advise that each of the three individuals is knowledgeable with respect to certain issues in the law suit: Maurice Arsenault is regional director of SPMC and has personal knowledge regarding SPMC's policies and procedures. Paul Nepper was the project manager in charge of the Kelsey restoration after the fire and the most suitable person to address damage issues. Cyril Brock, the building manager is the person most familiar with the building itself. He was also physically present on the Kelsey Campus before, during and after the fire. [7] To date, examination of Maurice Arsenault has gone on for four days, examination of Cyril Brock for four and one-half days and examination of Paul Nepper for two days. None of these examinations have been completed. Nature of the Objections [8] The objections taken by the plaintiffs to the questions can be broadly categorized as follows: The question seeks to elicit the plaintiffs' manner of investigation or expert opinions; The question was or ought to have been asked by counsel of another witness more properly suited to answer the question; Questions are best asked of others, notably third parties to the action as they relate to issues between the defendants and the third parties; The question is irrelevant or improper. [9] shall deal with each individual objection in the order as set forth in the defendants' notice of motion except where the particular question has been withdrawn from the application by the defendants. EXAMINATION OF CYRIL BROCK Objection No. 2-Questions 660 to 664 [10] The following exchange took place: 660 Just looking at document number 522 of the plaintiff's productions,, Mr. Brock, 522 is letter from the Architects Collaborative to Mr. Paul Nepper enclosing report from Jeff Reichert of Cochrane Engineering to Dave Edwards. Just looking at that report of January 31st, 1997, that is report that came into the hands of SPMC? guess it did, yes. 661 Does SPMC accept as fact the observations made in that report, is there any problem with it? MR. PARTHEV: Again, that's not fair question to put to this witness. What is it that you want? These are observations of someone else, Mr. Reichert is not with SPMC and neither is Mr. Edwards. MR. PURDY: The report was transmitted from Mr. Edwards to Mr. Nepper at SPMC. MR. PARTHEV: There's no obligation on witness to accept something that's in document. It says what it says,those are Mr. Reichert's views of the world at the time, guess. 662 MR. PURDY: Does SPMC have any information to the contrary to the observations made in that report? MR. PARTHEV: Well again, Mr. Reichert is giving his opinion with respect to what he believes happened or exists in the roofslab-or at the roof, period. so again, that's matter of expert opinion, and it's his opinion. 663 MR. PURDY: So you don't know, Mr. Brock, of any position or any facts known to SPMC which might be contrary to the observations made by Mr. Reichert? MR. PARTHEV: Same response, Mr. Purdy. Those are not just observations, those are his opinion or opinions. We are not going to sit here and comment on somebody else's opinions. Those are not factual questions. 664 MR. PURDY: The observations, the factual observations made in the report of January 31st, does SPMC have any information to the contrary? MR. PARTHEV: Same response. MR. PURDY: We'll mark that, please. EXHIBIT D-42: LETTER DATED FEBRUARY 7, 1997 FROM ARCHITECTS COLLABORATIVE TO MR. NEPPER, ENCLOSING REPORT BY MR. REICHERT DATED JANUARY 31, 1997 [11] The author of the letter has been added as third party to the action by the defendants (a copy of the letter was not provided to me on the application). have no way of knowing what observations the question referred to. There must be some reasonable degree of specificity to question of this nature when reference is made to document. I fail to see why a party to an action should be required to accept or reject an opinion of another party to the action. The plaintiffs are not required to answer the questions asked. note that Mr. Parthev invited Mr. Purdy to ask Mr. Nepper (the project manager in charge of the restoration after the fire) whether SPMC accepted the recommendations of Cochrane Engineering as laid out in the letter. Objection No. 4-P. 294, Lines 3-12 [12] The question asked was "What cellulose fibre insulation was present at the time of the fire?" Counsel for the plaintiffs asked for clarification for the question. No clarification was provided and the question was not followed up. Provided that the clarification requested is provided, the plaintiffs should answer the question. Objection No. 5-P. 297, Lines 7-25 [13] The defendants wanted to know whether a Mr. Miner was a participant in the investigation of the loss following the fire. [14] The plaintiffs refused to answer on the ground that names of possible expert witnesses are not discoverable. [15] An affidavit was filed by Wayne Miner, the manager of the Security and Special Investigation Unit on behalf of Saskatchewan Government Insurance ("SGI"), wherein he deposed as follows: 2. That SGI was the lead insurer involved in the Kelsey fire of January 5, 1997 and as such on SGI being notified of the fire, was assigned the duty of investigating the cause and origin on behalf of SGI. 3. That shortly after January 5, 1997, probably on January 6, assigned Larry Rollins of my department, whose specialty was determining cause and origin of fire, to conduct an investigation of the fire at the Kelsey Tower. Unfortunately Mr. Rollins has since passed away. Nonetheless Mr. Rollins reported to me throughout his investigation and worked closely with him through the investigation process. 4. That attended at the scene of the fire at the Kelsey Tower on numerous occasions during the week of January the 6th, 1997, and concluded almost immediately on my arrival at the scene that litigation would ensue. That reached this conclusion based on number of factors, including most specifically, the size of the loss and damages which would no doubt result in possible recovery against those deemed at fault. 5. That the investigations conducted by my department are done in most part and with the ultimate goal of reporting to our litigation department in anticipation of possible litigation and as such in our assessment these reports are considered privileged because they are prepared with the ultimate goal of assisting counsel. That this is also true of the investigations done as to the cause and origin of the Kelsey fire on January 5, 1997, which in my assessment were conducted with the dominant purpose of assisting in litigation which was imminent. 6. That immediately upon the appointment of Mr. Parthev of McKercher McKercher Whitmore, as counsel, which am advised by Mr. Parthev was January 13, 1997, was instructed to direct all of our reporting to Mr. Parthev to assist in the conduct of the anticipated litigation and that likewise passed these instructions onto members of the investigation unit including Mr. Rollins. Thereafter, our investigation team worked closely with Mr. Parthev in furtherance of pursuing claim. [16] The affidavit answers the question asked notwithstanding that the defendants are not entitled at the discovery stage to the names of possible expert witnesses. Objection No. 6-P. 297, Line 26 to P. 300, Line [17] Two questions were asked: (a) Was there meeting arranged and held between SPMC fire investigators and the fire marshal, Ed Solie? and (b) Assuming there was meeting, what was reported by fire marshal Ed Solie to investigators of SPMC? [18] The plaintiffs refused to answer the question claiming litigation privilege. The issue of litigation privilege was recently dealt with by the Saskatchewan Court of Appeal in Hill v. Board of Education of Arcola School Division No. 72 (1999), 1999 CanLII 12302 (SK CA), 180 Sask. R. 256. In that case demand was made during questioning on the examination for discovery for the name of the adjuster who interviewed potential witnesses and prepared report, and the names of the witnesses interviewed. After thorough review of prior jurisprudence, Sherstobitoff J.A. came to the following conclusion: [10] The appellant must succeed on this point. The criterion for discoverability is whether the information sought may be characterized as being "facts that are or may be relevant to the determination of the facts in issue." The names of all potential witnesses clearly fall into that category, but they have already been provided. However, the name of the insurance adjuster who investigated the accident and the names of potential witnesses from whom he took statements, written or otherwise, on behalf of the appellant during the course of his investigation just as clearly do not. These names do not reveal anything of the facts in issue that the respondent does not already have, but do reveal details of the appellant's investigation of the facts in issue. The respondent cannot be said to be seeking facts when he asks for this information; he is seeking details of the appellant's investigation. That is exactly the sort of information that litigation privilege is designed to protect. [Emphasis added] [19] The appellant in Arcola School Division also appealed part of an order which required the appellant to "supply the facts contained in the investigator's reports, the information obtained from each student and the information obtained from Douglas Lupanko". In setting aside that portion of the order Sherstobitoff J.A. made the following comments: ... Orders such as these normally deal with specific questions asked on the discovery which the person being examined has declined to answer so that the court is dealing with specific matters. In this case the court was asked for and gave an order granting relief of such general nature that the meaning of the order is uncertain. [12] If the order is read as requiring the appellant to supply, verbatim, all parts of the reports and statements which deal with facts relevant to the issues, (and that is the meaning attributed to it by the parties), the order cannot stand. As noted above, the respondent conceded that the written documents themselves were privileged. If the privilege is to mean anything, it must apply to the content as well as the physical document. The appellant cannot be compelled to, in effect, copy all parts of privileged documents dealing with facts and to hand the copies over. To rule otherwise would be to penalize the party who first investigated the matter by compelling him to hand over the complete fruits of his investigation of the facts to the other.[Emphasis added] (pp. 261-2) [20] Any meeting between the plaintiffs' investigators and the fire marshal clearly relates to its investigation and is privileged. It follows that any information obtained by the plaintiffs from the fire marshal is also privileged. There is nothing preventing the defendants from obtaining information directly from the fire marshal. Objection No. 7-Question 1399 [21] "Was there any liaison set up between Mr. Bykowy and SPMC and SIAST insurers and their investigators?" [22] Apparently Mr. Bykowy is fire investigator with the City of Saskatoon. I agree with the plaintiffs that the question relates to the manner of the plaintiffs' investigation and is not proper. Once again, questions can be asked of the third party City of Saskatoon. Objection 8-P. 317, Line to P. 318, Line [23] The question asked was: "... is any engineer's report or any engineer's report that was prepared as a result of engineers retained by the plaintiffs' fire investigators, did any of their reports or were any of their reports shared with the City of Saskatoon fire department?" [24] Once again the defendants are seeking details of the plaintiffs' investigation and that information is protected by litigation privilege. Objection No. 9-P. 330, Line 15 to P. 331, Line [25] The question objected to was "... what observations were made of the damage post fire, the damage to the roof and its ... and the attic that would connect the point of breakout to the point where Hagblom were operating or were working?" [26] The plaintiffs' claim in this law suit is in excess of $7,000,000.00. The question is too vague to answer In an application of this nature proper foundation must be laid in the context of specific questions asked and answers given or not given (Hill v. Board of Education of Arcola School Division No. 72, supra). The defendants might ask for example, what wood was burned, where the burned wood was located, whether it was burned on the inside or outside and similar questions. [27] also agree with the plaintiffs that the question appears to be asking for the plaintiffs' expert opinion on burn pattern. The defendants are entitled to disclosure of all facts that are or may be relevant to the determination of the facts in issue. They are not entitled to expert opinion. Objection No. 10-P. 351, Lines 6-14 [28] The question asked was whether SPMC's insurer's investigation team participated in the investigation with the City of Saskatoon fire department investigation team. Again the question relates to the plaintiffs' manner of investigation and is privileged. Objection No. 11-P. 355, Lines 6-18 [29] The defendants wanted to know whether certain documents (statements) referred to in the plaintiffs' statement as to documents and for which the plaintiffs claimed privilege were obtained from the City of Saskatoon fire department. The plaintiffs gave an undertaking to find out whether the plaintiffs' received the statements during the course of their investigation. If they were, they are privileged. In any event the defendants will have the opportunity to examine the City of Saskatoon in the third party claim. Objection No. 13-Question 1557 [30] The defendants asked for the name of the individual who prepared certain drawings by Consolidated Engineering Company, dated June 18, 1997 and which document had been produced to the defendants by the plaintiffs at mandated mediation session. [31] All discussions at the mediation proceedings are strictly confidential. Any questions arising out of anything disclosed during the mediation are clearly improper. [32] Furthermore, the name of the plaintiffs' expert who prepared the drawings in contemplation of litigation is privileged. Objection No. 14-P. 437, Lines 17-25 [33] can find no objection to the questions asked. fail to see why the defendants included this reference in the notice of motion. Objection No. 15-P. 459, Line to P. 461, Line 23 [34] The following exchange took place beginning at line 17 on p. 459 of the transcript: MR. PURDY: Okay. How the Soprema was applied. Then your answer isn't complete because was there any indication on the wall of direct contact between torch and wall? MR. PARTHEV: And it's SPMC's position that there is such indication. MR. PURDY: All right. And what is the observation made indicatingtorch application to wall? MR. PARTHEV: Well see that's-where we get into this distinction between expert opinion because what may look like nothing to you and me, may mean something to an expert who looks at wall, so think you're treading on expert opinion to say the least, and I've always had trouble with these questions because understand we're supposed to supply you with facts, but that line gets pretty blurry when it comes to what is obvious to an expert as opposed to lay person. MR. PURDY: There must have been some physical sign, some chemical sign, some sign of some kind of torch application to wall. MR. PARTHEV: Well you'll get that when the expert opinion is supplied to you- MR. PURDY: Well this- MR. PARTHEV: -in accordance with the rules. MR. PURDY: This is-no, this is physical evidence that was present, whether organic, whether chemical, whether or whatever kind, application of heat to material, results and chemical change. What is it? What was present to indicate the change? [Emphasis added] MR. PARTHEV: Well again, same answer. That stuff would mean nothing to me, but it may mean lot to an expert, so you're asking for an expert opinion. MR. PURDY: No, I'm not asking for an expert opinion. I' asking for the physical state observed with respect to direct heat application. What was there? MR. PARTHEV: Mr. Purdy, we could pull out piece of wood from that wall and it may be charred, but it's up to an expert to say whether it was charred because of blow torch or it happened as result of the fire, so it's totally unfair question. Same with burn marks on the wall, mean it means nothing to just simply say there were burn marks on the wall until an expert says yes, those are propane burn marks and this is why they are. It's my opinion that they are because X, and Z. MR. PURDY: All-well what want to know is X, and Z, if you want to put it that way, the physical characteristics present. MR. PARTHEV: Well again- MR. PURDY: How many times do have to go through that? What were the physical characteristics or the chemical characteristics? MR. PARTHEV: You'll get them all when you get the expert opinion. [35] The plaintiffs' objection that the defendants are really asking for an expert opinion would seem to be borne out by the portion of Mr. Purdy's comments which are underlined. [36] The defendants are entitled to all relevant facts but not opinions. They are entitled to know what was observable to anybody looking at the wall where the Soprema was being applied not to an expert's interpretation of what was observable, for example what chemical change took place. [37] The defendants ought to ask specific questions, for example, whether burn marks were observable, and if so, have the witnesses described the burn marks. In other words, the facts and observations upon which expert opinions are based must be disclosed. That would, in my view, include any photographs taken by the plaintiffs and upon which the plaintiffs' expert may have relied. Objection No. 16-P. 462, Line to P. 463, Line [38] The witness was asked what portion of the wall had torch application. The witness answered (line 2), "I believe it's the northeast corner where they were working off the scaffold up the parapet wall." Counsel for the defendants did not like the answer but nevertheless the witness answered the question. In fact, the witness answered it again at question 1811 when asked "What's that answer?" The witness replied "The answer gave was the northeast corner of the Tower where they had the scaffold set up." Objection No. 17-P. 466, Line to P. 467, Line 19 [39] The question asked was: "Was there any particular pattern on this piece of wood that would indicate contact by propane flame?" agree with counsel for the plaintiffs that the answer to that question requires an expert opinion which the witness is not required to provide. Objection Nos. 18, 19 and 20 [40] The following questions were asked of the witness: (a) Whether there is factual evidence indicating first ignition; (b) What material first ignited; (c) What physical evidence is there of "first ignition". [41] The defendants were advised that the plaintiffs were not there when the fire first started. The question can only be answered by having experts reconstruct what, in their opinion, occurred at the time the fire started. The defendants are not entitled to ask for that expert opinion. In due course they will receive the opinions of the expert witnesses as required by The Queen's Bench Rules. EXAMINATION OF MAURICE ARSENAULT Objection No. 4-P. 262, Lines 3-12 [42] The witness was asked whether "In the 1967 construction of the Tower was there fire stop?" The witness replied that he did not know the answer to that question. He was then asked "What's SPMC's position? Was there fire stop?" The defendants were advised that SPMC has no position one way or the other. [43] If the plaintiffs do not have position know of no rule requiring them to adopt position. They can be required to give an undertaking to provide the defendants with position if they adopt one at later date. Objection No. 5-P. 266, Questions 41 and 42 41 Okay. Now in connection with the question of whether there was fire stop constructed in 1967, are you-do you suggest that better get that information from others, and if that information is in the hands of others, who would have it? have made no suggestion in that regards. 42 That information should be somewhere within the capacity or capability of SPMC to determine? MR. PARTHEV: No, that's not what the witness said, Mr. Purdy. We made it quite clear that this building and SPMC's involvement goes back to 1986, and we've also made it clear that we're not going to search all provincial archives to get you that information. Secondly, that information is not relevant as far as we're concerned to whether your client burned down our building in 1997. It is obvious that the plaintiffs do not have the requested information. There is no obligation on them to seek that information from third parties when the defendants are as capable of obtaining that information as the plaintiffs. It would be another matter if the information was held by third parties under the control of the plaintiffs. If the party being examined has no control over or greater access to witness than the examining party, it need only disclose the evidence known to it. Objection No. 6-P. 268, Questions 47 and 48 [44] The witness was asked whether the parapet roof was constructed in accordance with the detail set out in FC. The witness replied that he did not know. [45] The witness was then asked whether SPMC had position on the matter. The response was that SPMC had no position on the matter. In their brief, filed on this application, plaintiffs' counsel gave an undertaking to advise if and when the plaintiffs develop position. Objection No. 7-P. 273, Line 22 and Objection No. 8-P. 274, Line 10 [46] The witness was shown plaintiffs' document production No. 94(c) which is sketch of the Tower parapet detail and was asked whether the plaintiffs have any position that the detail outlined in that document is right, wrong or otherwise. Although the transcript is not clear as to what the response from the plaintiffs was, the plaintiffs undertook in their argument to advise if and when the plaintiffs develop position. Objection No. 9-P. 310, Question 158 and P. 311, Line 16 158 Might that RFP [request for proposal] be available and can it be provided? The question must be examined by reading the previous question. 157 All right. And do you have or have you seen the RFP for this particular project? No, haven't. have not seen it and do not have it. The witness responds at p. 311 that all long range plans for SIAST Kelsey Campus are contained in document D-10 which has been produced. In my view that does not answer the question. If there is an RFP for Kelsey Campus which relates to the Tower, that document should be produced. If the RFP under discussion only relates to the Regina campus agree with the plaintiffs that the document is not relevant. Objection No. 10-Question 198 [47] The defendants' counsel referred to exhibit D-9 [a standard form contract between SPMC and Architects Collaborative] and in particular to the definition, sub-consulting 1.8. The witness was then asked whether "it was considered anytime that Hagblom Construction would be sub-consultant within the terms of this agreement?" [48] The plaintiffs refused to answer what they considered to be legal question. The objection was well founded, questions as to party's position in law are not proper. The trial judge will eventually interpret the terms of the agreement. Objection No. 11-P. 325, Line 18 to P. 328, Line [49] The defendants' counsel again refers to D-9 and in particular paragraph 3.2 and appears to ask whether Hagblom was retained pursuant to this paragraph. [50] Once again this is legal question. In any event the plaintiffs did advise that their position as to how Hagblom was retained was set forth in paragraphs and of the statement of claim which provide as follows: 8. Pursuant to contract between Hagblom and SPMC, Hagblom removed portion of the brick cladding from the northeast corner of the Tower on November 28, 1996, exposing the surface to facilitate inspection of the masonry construction by structural engineer. Said contract was made between Hagblom and Cochrane Engineering Inc., as agent of SPMC, in part by letter dated November 25, 1996 and in part orally. 9. Pursuant to contract between Hagblom and SPMC, Hagblom further agreed and undertook to supply and install an air vapour barrier to hoard in the exposed surface where the brick had been removed. Said contract was made between Hagblom and Cochrane Engineering Inc., as agent of SPMC, in part by letter dated November 29, 1996 and in part orally. Objection No. 12-P. 333, Question 14 to P. 337, Line [51] The question asked was whether the building was built in accordance with the 1960 fire code when constructed in 1967. The plaintiffs replied that the building did not come into their possession until 1986 or 1987 and they had no knowledge as to whether it was built according to the 1960 fire code. [52] The defendants' counsel then asked if the plaintiffs had position on the matter and requested that if they did not that the plaintiffs research the question and develop position. [53] stated earlier that party is not obliged to develop position. It is required if it later adopts position to advise the other party. The plaintiffs stated that they assumed the building was built according to the code. That was all that they could say. [54] Furthermore, the information is obtainable by the defendants and disagree with defence counsel's suggestion that there is no obligation on the defendants to obtain the information from third parties. refer him to my earlier comments in that regard. Objection Nos. 13 and 14 [55] The plaintiffs advise that these will be answered. Objection No. 15-P. 370, Question 136, Lines 11 to 18 [56] agree with plaintiffs' counsel that it is not clear why the defendants have listed this question. It was agreed that the document to which defence counsel was referring would be marked as an exhibit subject to qualification by the plaintiffs that they wanted to confirm with Mr. Hegel whether he received it or not. There was nothing presented to me to suggest that such confirmation was still an issue. Objection No. 16-Question 163 [57] The question asked was whether Dave Edwards or Jeff Reichert were on the scaffold. The plaintiffs advise that they did not know. [58] The plaintiffs did, in undertaking No. 38, agree that "if SPMC has information as to the identity of architect who inspected parapet during or after brick removal, advise of same." However, plaintiffs' counsel advised that the lawyer acting for the architects has already informed him that his clients will not talk to plaintiffs' counsel now that they are parties. [59] Furthermore, Edwards and Reichert are architects who have been added as third parties by the defendants. Any information that the defendants require can be obtained directly from Edwards and Reichert when they are examined for discovery. Objection Nos. 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, and 27 [60] fail to see why the defendants claim that the plaintiffs objected to answer the questions referred to in the above objections. My reading of the transcript indicates quite clearly that the plaintiffs gave an undertaking to answer each of the questions. (See undertakings 39, 40, 41, 42, 44, 45, 46, 47, 48 and 49). Objection No. 21-Question 200 [61] The question was answered. EXAMINATION OF PAUL NEPPER [62] There were 36 objections taken to questions asked of Mr. Nepper. Three of the questions have been withdrawn by the defendants. The remaining objections, except for objection 35, generally fall into two categories: (a) The defendants are examining on an area being D-10 already canvassed at the examination of Arsenault; (b) The defendants are asking repeat questions in areas already canvassed at the examination of Arsenault. [63] For the reasons which follow I have decided that these objections must fail. If question has already been asked and answered by one of the three proper officers put forward by the plaintiffs, there is no need for the question to be answered second time. It would be an abuse of the process for the defendants to ask the same question of a second officer hoping to obtain a different answer. In that event it is quite proper for the second officer to merely state that the question has been asked and answered by the first officer. If the first officer was unable to answer the question at the time of the examination and gave an undertaking to provide the answer, the defendants ought to wait for the undertaking and not ask the same question of the second officer. If the question was not answered by the first officer, see no reason why the same question cannot be put to the second officer. [64] The fact that there are three separate officers does not restrict the defendants to asking only certain questions of each of the officers. For example, during one exchange counsel for the plaintiffs stated "You are asking questions which ought to have been asked of Mr. Arsenault." Nor can counsel be heard to say that the defendants' counsel is now asking questions that he forgot to ask Arsenault. The fact that the defendants agreed to examine three officers does not mean that they agreed to restrict themselves as to the questions that they could ask each of the three officers. It may well be that defence counsel are asking Nepper questions which either they forgot to ask Arsenault or never thought to ask him at the time he was examined but that does not prevent them from now asking the question of Nepper. [65] The reason for having three officers, each with expertise in certain area, was to prevent the plaintiffs from having to give endless undertakings. Furthermore, the plaintiffs' counsel advises that the defendants would not agree to having all three officers present during each examination. In my view that would have saved not only time, but unnecessary legal fees. can appreciate Mr. Parthev's frustration over the fact that the process is not working as contemplated when it was agreed three officers would be examined. Objection No. 35-Question 542 [66] The plaintiffs say that the question is simply too complicated and that it will be answered if it is broken down. [67] The question asked was whether, referring to exhibit D-54, does SPMC accept that it represents an accurate reconciliation of the work recommended to be done by exhibit D-10 and actually completed in the 1997 renovations. [68] did not have either exhibit D-54 nor exhibit D-10 before me and am therefore unable to determine how complicated question 542 actually is. do note, however, that in the statement of claim the plaintiff SPMC claims fire damage repairs in excess of $4,780,277.43 and emergency repairs of $191,026.14. assume D-54 is referring to those damages as being the 1997 renovations as the fire allegedly occurred January 5, 1997. That being so can understand plaintiffs' counsel's suggestion that the question is too complicated. [69] Defence counsel should be able to break the question down so to enable the plaintiffs to provide the desired answers. THE UNDERTAKINGS [70] The examinations for discovery of SPMC's proper officers has not been completed. The defendants seek an order compelling SPMC to comply with the undertakings given during the course of the examination of all three officers. [71] There are 200 undertakings-60 from Brock, 37 from Arsenault and 103 from Nepper. do not propose to deal with them individually. Suffice it for me to say that as general rule, examinations for discovery should be completed before party being examined is required to comply with the undertakings. If further examinations are required after the undertakings have been complied with, those examinations will be limited to the undertakings. [72] agree with plaintiffs' counsel that some undertakings require considerable amount of time and effort before proper answer can be provided. If the examining party were to be allowed to simply adjourn the examination and demand that the undertakings be then complied with, this would lead to endless delay in examinations. [73] There may be exceptional circumstances where in some cases the court will order compliance with undertakings before the examinations are completed. The defendants have failed to satisfy me that any such exceptional circumstances exist in this case [74] leave the matter of costs to be dealt with by the trial judge.

The defendants brought an application to compel responses to a large number of questions objected to at examinations for discovery of the proper officer for SPMC, and sought an order requiring SPMC to comply with numerous undertakings. The objections were categorized as the questions sought to elicit the plaintiff's manner of investigation or expert opinions; it should have been asked of another witness better suited to answer or third parties as the questions relate to issues between the defendant and the third parties; it was irrelevant or improper. HELD: 1)The plaintiffs were not required to answer questions which would require them to accept or reject an opinion of another party to the action. 2)The plaintiffs should answer what cellulose fibre insulation was present at the time of the fire. 3)The affidavit answered whether Miner was a participant in the investigation notwithstanding the defendants are not entitled to the names of possible expert witnesses at the discovery stage. 4)Any meeting between the plaintiff's investigators and the fire marshal clearly related to its investigation and is privileged. The defendants could obtain the information directly from the fire marshal. 5)The question of whether there was any liaison between the city fire investigator and SIAST was improper as it relates to the manner of investigation. Questions can be asked of the city. 6)Details of the plaintiff's investigation, including an engineer's report, was protected by litigation privilege. 7)The question regarding what observations were made of the damage was too vague. The plaintiff's claim was in excess of $7 million. A proper foundation must be laid in the context of specific questions and answers given or not given (Hill v. Arcola School Division). The defendants are not entitled to expert opinion. 8)Whether SPMC's insurer's investigation team participated related to manner of investigation and was therefore privileged. 9)The defendant will be able to examine the city in the third party claim with respect to documents from the fire department. 10)All discussions at mediation proceedings are strictly confidential. The name of the plaintiff's expert, who prepared the drawings in contemplation of litigation, is privileged. 11)The facts and observations upon which expert opinions are based must be disclosed including any photographs. 12)Whether any pattern on the wood would indicate contact by propane flame required expert opinion. 13)Questions concerning what material first ignited could only be answered by having experts reconstruct what in their opinion occurred at the time the fire started. 14)If the plaintiffs do not have a position (on whether there was a fire stop in the 1967 construction of the tower), there is no rule the court is aware of requiring them to adopt a position. They can be required to give an undertaking to provide a position if they adopt one at a later date. Whether they believed the building was built in accordance with the 1960 fire code when constructed in 1967 was information obtainable by the defendants. 15)If the party being examined had no control over or greater access to a witness than the examining party, it need only disclose the evidence known to it. There is no obligation to seek information from third parties when the defendants are capable of obtaining that information. 16)An undertaking was given to advise if and when the plaintiffs develop a position on whether the parapet roof was constructed in accordance with the detail set out in FC and whether the detail in the sketch of the Tower parapet was correct. 17)If the request for the proposal related to Kelsey, the document should be produced, but if it only related to the Regina campus, the document was not relevant. 18)Whether it was considered anytime that Hagblom would be a sub-consultant was a legal question. The trial judge will interpret the terms of the agreement. 19)Any information required could be obtained directly from the architects who had been added as third parties by the defendants. 20)The plaintiffs gave undertakings to answer the other questions and did not object to answering them. 21)The 36 objections (less 3 that were withdrawn) failed. It would be an abuse of process for the defendants to ask the same question of a second officer hoping to obtain a different answer. The same question can be put if the first did not answer it. The fact there were three separate officers does not restrict the defendants to only asking certain questions of each. The reason for having three officers, each with a different expertise in a certain area, was to prevent the plaintiffs from having to give endless undertakings. Having all three present during each examination would have saved time and unnecessary legal fees. 22)The exhibit was not before the court to determine how complicated the question was. Defence counsel was to break it down. 23)There were 200 undertakings. As a general rule examinations for discovery should be completed before the party being examined is required to comply with the undertakings. It would lead to endless delay if the examining party were allowed to simply adjourn and demand the undertakings be complied with. There were no exceptional circumstances. 24)Costs were left to the trial judge.

c_2001skqb39.txt

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2005 SKCA 127 Date: 20051115 Between: Docket: 1021 James Garry Hunter (Petitioner by Counter-Petition) and Beverley Anne Gutenberg (Respondent by Counter-Petition) Coram: Vancise, Sherstobitoff Richards JJ.A. Counsel: Timothy E. Turple for the Appellant Lynne Greenhorn for the Respondent Appeal: From: 2004 SKQB 373 (CanLII) Heard: November 15, 2005 Disposition: Dismissed (orally) Written Reasons: November 16, 2005 By: The Honourable Mr. Justice Sherstobitoff In Concurrence: The Honourable Mr. Justice Vancise The Honourable Mr. Justice Richards SHERSTOBITOFF J.A. [1] The appellant appeared for his trial in matrimonial matter after peremptory adjournment. He refused to participate in the proceedings and the judge ordered that the trial proceed without him, although the judge did allow friend to give evidence on his behalf. She rendered judgment dividing the matrimonial property and dismissing the appellant’s claim for maintenance. The appellant now appeals the decision on the ground that the trial should not have proceeded in his absence. [2] The trial judge, in her reasons for judgment, carefully explained the background of the matter. The trial had been adjourned several times in the past. The appellant had, during the course of the proceedings, fired one lawyer, and another lawyer had withdrawn. The appellant had been forewarned, in writing, that the trial would not be adjourned for any reason less than medical certification that his health would be put into jeopardy by his attendance at trial. He filed letters from two doctors. The first outlined the medical conditions from which the appellant suffered and stated that it was given “to support representative to be present for court proceedings on behalf of the above patient”. The second said that “his condition is adversely affected by emotional stress and, and it may be to his advantage to appoint someone to act on his behalf in his impending court case.” [3] At trial, the appellant appeared with friend, Mr. Hawke, and told the court that he was incapable of representing himself and that he needed lawyer. He then withdrew from the courtroom. The court, through Mr. Hawke, offered several accommodations to encourage him to participate, including allowing his friend to sit with him, provision of written instructions on the conduct of trial by self-represented litigant, time for consultations and preparation during the trial, and private room for consultation. The appellant refused to return to the courtroom. [4] The trial proceeded in his absence. Mr. Hawke was allowed to give evidence on behalf of the appellant after advising the court that the appellant wanted him to give evidence. [5] The court granted divorce, divided the matrimonial property, and dismissed the appellant’s claim for maintenance since no evidence was led with respect to it. [6] We can find no error in the decision of the trial judge. The medical opinions fell far short of justifying anything other than allowing someone else to represent the appellant, but the appellant had already demonstrated an inability to obtain the services of lawyer acceptable to him and the appellant declined to proceed with Mr. Hawke at his side. The appellant had no suggestions as to how to proceed, but simply declined to participate. While the condition of the appellant must be of concern, the evidence did not indicate any inability to either instruct counsel or to represent himself in court. In the circumstances, the trial judge had little choice but to do exactly what she did. [7] The authorities cited by the appellant in his factum have no application to this case as they all deal with situations where a person did not appear at his trial. In this case, the appellant appeared, but refused to participate. For the same reason, Queen’s Bench Rule 271 has no application. [8] In the circumstances, we have no choice but to dismiss the appeal with costs.

The appellant appeared for his trial in a family law matter. He refused to participate and left. The judge ordered that the trial continue without him. A judgment was rendered, dividing the matrimonial property and dismissing the appellant's claim for maintenance. The appellant now appeals on the ground that the trial should not have proceeded without him. HELD: The appeal is dismissed. 1) There is no error in the decision of the trial judge. The medical evidence did not indicate any inability to either instruct counsel or to represent him in Court. The trial judge had little choice but to do what she did. 2) The authorities cited by the appellant have no application to this case as they all deal with situations where someone did not appear at his trial. In this case, the appellant appeared but refused to participate. For the same reason, Queen's Bench Rule 271 has no application.

2_2005skca127.txt

nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 179 Date: 2007 05 24 Docket: Q.B. 66/2007 Judicial Centre: Regina BETWEEN: FIRST NATIONS UNIVERSITY OF CANADA and UNIVERSITY OF REGINA FACULTY ASSOCIATION and AN ARBITRATION BOARD CHAIRED BY BETH BILSON, Q.C. RESPONDENTS Counsel: Larry F. Seiferling, Q.C. for the applicant Victor P. Dietz, Q.C. for the University of Regina Faculty Association JUDGMENT WIMMER J. May 24, 2007 [1] This is an application for judicial review of a Board of Arbitration Award which held that the First Nations University of Canada had violated certain provisions of a Collective Agreement in force between the parties. The facts of the case are reasonably straightforward. [2] On May 12, 2005, the University of Regina Faculty Association filed grievance on behalf of Dr. Blair Stonechild who is First Nations University faculty member. The grievance alleged that the University had interfered with his academic freedom. The allegation had to do with the withdrawal of an invitation to Dr. Stonechild to be the keynote speaker at National Symposium on Post Secondary Education Policy and Funding which was held the previous month. The symposium was an initiative of the Federation of Saskatchewan Indian Nations and although the event was held on campus, the University itself was not directly involved. It was drawn into the controversy between Dr. Stonechild and the Federation in circuitous way. [3] During the relevant period, former student of Dr. Stonechild, Ms. Danette Starblanket, was employed by the Federation as Director of Higher Learning and Research. In that capacity, she was instrumental in the planning and organization of the symposium and it was she who invited Dr. Stonechild to participate as speaker. That was in mid-March 2005. [4] Ms. Starblanket’s idea was that Dr. Stonechild would make presentation based upon his Ph.D. thesis which is entitled “Pursuing the New Buffalo: First Nations Higher Education Policy in Canada.” He had received his Ph.D. degree from the University of Regina in 2004. Apparently some misunderstanding arose because Dr. Stonechild believed he was being invited to present the results of research he had more recently done for the Assembly of First Nations national First Nations political organization. In any event, there is no disputing the fact he was invited to speak at the upcoming symposium. [5] Later, after Ms. Starblanket had examined Dr. Stonechild’s thesis, she decided it would not provide suitable foundation for the symposium’s keynote address. On March 31, she advised him that his services would not, after all, be required. [6] Dr. Stonechild was disappointed at this turn of events and he sought to have the decision reversed. On April 10, he sent a letter to the President of the First Nations University enquiring whether its Board of Governors might be asked to intervene and request the symposium’s organizing committee to reconsider the matter of his presentation. The Board of Governors met on April 12 and Dr. Stonechild’s letter was on the meeting’s agenda. [7] The Chair of the Board of Governors at the time was Morley Watson who was also Vice-Chief of the Federation of Saskatchewan Indian Nations. The Arbitration Board Award describes the relationship between the University and the Federation. Throughout the document, acronyms are used when referring to most institutions and organizations. nan The FNUC is unique institution. It is federated college of the University of Regina, and derives academic authority from that association. On the other hand, it is also signifier of the important role of post-secondary education as vehicle for fulfilling the aspirations of First Nations people in Saskatchewan and across the country. The FNUC was created under statute of the FSIN, the provincial body representing First Nations. Under this statute, the FNUC has Board of Governors, the majority of whom are chiefs who are also part of the governing body of the FSIN. At the time relevant to this grievance the Chair of the Board of Governors was the First Vice-Chief of the FSIN, Mr. Morley Watson. [8] By way of background, the Award refers to certain other events which were taking place at the University at the time. On February 17, 2005, prompted by concerns about fiscal and administrative issues, representatives of the FSIN, including Vice-Chief Watson, entered the FNUC and assumed responsibility for many administrative functions. Several senior administrators were relieved of their duties, and comprehensive forensic audit of the University finances was ordered. Several people closely connected with the FSIN were appointed to replace FNUC administrative personnel who had been displaced. These actions by the FSIN engendered considerable public controversy, and created tension between the FSIN and some of the faculty and administrators within the FNUC. Dr. Stonechild was one of the faculty members who had expressed concerns about how the academic credibility of the University might be affected by these actions. [9] At the Board of Governors meeting on April 12, the progress of the forensic audit and related issues were discussed. When it came to Dr. Stonechild’s request, Mr. Watson made some inappropriate comments. He demonstrated personal irritation or antagonism toward Dr. Stonechild, all seemingly associated with the events that began to unfold on February 17. He linked his feelings about Dr. Stonechild to the question on the table concerning the symposium. The meeting ended with no decision having taken place regarding the matter raised in Dr. Stonechild’s letter. [10] After fully canvassing all of the facts, the Board of Arbitration came to this final conclusion: It may be true that Vice-Chief Watson did not in fact play role in the decision that Dr. Stonechild should not be on the program. It may also be true that Vice-Chief Watson was persuaded by Chief Fiddler’s intervention to contemplate resolution of the dispute, and that, in any case, it was far too late for anyone to reverse the decision removing Dr. Stonechild from the list of speakers. We have concluded, nonetheless, that by suggesting that his dispute with Dr. Stonechild should affect the opportunity for Dr. Stonechild to appear at the Symposium to present his research, Vice-Chief Watson failed in his obligation to refrain from interfering in and to defend the academic freedom of a faculty member. In this respect, we find that the Employer violated the collective agreement, and we therefore uphold the grievance in part. As well as challenging these findings of the Board, the University advances jurisdictional arguments as reasons for setting aside or quashing the Award. [11] First, it contends that the Board of Arbitration exceeded its jurisdiction by entertaining a grievance which did not involve parties to the collective agreement. It argues that the dispute giving rise to the agreement was between Dr. Stonechild and the Federation not Dr. Stonechild and the University. However, the Board made a clear finding of fact that the alleged breach of the Collective Agreement occurred while Mr. Watson was acting in his capacity as Chair of the University’s Board of Governors and not as an officer of the Federation. That finding brought the issue within the purview of the Agreement. [12] Second, it argues that the Board of Arbitration made a determination of an issue not raised in the grievance namely, a finding that there was a violation of academic freedom. With respect, I do not agree. The formal grievance specifically refers to interference with Dr. Stonechild’s academic freedom in the second paragraph under the heading, NATURE OF DISPUTE. These actions by FNUC and its Board are an abuse of authority and are harassing and intimidating actions against this faculty member. In addition, FNUC and its Board have interfered with the academic freedom of Dr. Stonechild, in violation of the FNUC/URFA Academic Collective Bargaining Agreement (2002-2005). This issue between the parties was clearly joined. [13] Before passing upon the merits of the application it is necessary to determine the standard of review to be applied to the decision of the Board of Arbitration. Since the Supreme Court of Canada decision in Voice Construction Ltd. v. Construction General Workers’ Union, Local 92, 2004 SCC 23 (CanLII); [2004] S.C.R. 609 the law in this regard has been reasonably well settled. Following the pragmatic and functional approach referred to in the judgment, it is clear the standard of review to be applied in this case is one of reasonableness. See also: Bethany Pioneer Village Inc. v. Service Employees International Union, Local 333, 2006 SKQB 370 (CanLII); [2006] S.J. No. 700 QL (Sask. Q.B.). [14] The following passage referring to the standard of reasonableness appears in the judgment of Mr. Justice Iacobucci in Law Society of New Brunswick v. Ryan, 2003 SCC 20 (CanLII), [2003] S.C.R. 247, at para. 55: decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to somewhat probing examination, then the decision will not be unreasonable and reviewing court must not interfere. nan This means that decision may satisfy the reasonableness standard if it is supported by tenable explanation even if this explanation is not one that the reviewing court finds compelling. nan Mr. Justice Iacobucci went on to say that it is not necessary for every element of the tribunal’s ruling to pass the reasonableness test. The question for the reviewing court is whether the reasons as whole support the decision. [15] In the present case, the Board of Arbitration analyzed and then had reference to portions of Articles 2.1 and 2.2 of the Collective Agreement. 2.1 Preamble The First Nations University of Canada is unique institution in both philosophy and mandate and, as such, has distinct responsibility to safeguard and promote academic freedom. It is the policy and intent of the University to revise this statement of Academic Freedom as our collective wisdom grows. 2.2 Academic Freedom General Policy Statement Academic freedom is essential to the teaching, research, scholarship and community development functions of the University. The University will defend the academic freedom of members from interference from any source; however, the University will not be held accountable for infringements of academic freedom originating beyond the control of the University. The Board interpreted these provisions as imposing positive obligation upon the University and its officers to defend and promote the exercise of academic freedom by faculty members and then went on to consider what happened at the Board of Governors meeting on April 12. Thus it reached the conclusion which have already quoted. [16] In effect, the Board of Arbitration found that Mr. Watson’s conduct at the Board of Governors meeting did not comport with the requirements of Articles 2.1 and 2.2 of the Collective Agreement. In my judgment, the reasons as a whole support that finding. The decision meets the reasonableness test. [17] The application is dismissed with costs. J. C.R. Wimmer

Application for judicial review of a board of arbitration award that held the First Nations University of Canada had violated certain provisions of a collective agreement in force between the parties. The grievance alleged that the University had interfered with faculty member's academic freedom. The allegation concerned the withdrawal of an invitation to that faculty member to be the keynote speaker at National Symposium on Post Secondary Education Policy and Funding that was held on campus, although the University was not directly involved. After one of the chief organizers examined the faculty member's thesis and determined it would not provide suitable foundation for the symposium's keynote address, the invitation was withdrawn. The faculty member sought to have the decision reversed, and requested the University's Board of Governors' intervention. When the faculty member's request came up at one of the Board's meetings, one of its members made some inappropriate comments and expressed personal animus towards the faculty member. No decision was reached at that meeting. The respondent Board of Arbitration found that, in failing in his obligation to refrain from interfering in and to defend the academic freedom of a faculty member, the Board member's comportment amounted to a violation of the collective agreement by the employer. The applicant argued that the Board of Arbitration exceeded its jurisdiction by entertaining a grievance that did not involve parties to the collective agreement. Further, it argued that the Board of Arbitration made a determination of an issue not raised in the grievance, namely, a finding that there was a violation of academic freedom. HELD: The application is dismissed with costs. The Board of Arbitration found that the member of the University's Board of Governors' comportment at the meeting did not accord with the requirements of certain articles of the collective agreement. The reasons of the Board of Arbitration support that finding and the decision meets the reasonableness test. The fact that the member of the Board of Governors was acting in his capacity as Chair brought the issue within the purview of the collective agreement. The Court disagrees with the applicant's contention that the Board of Arbitration made a determination of an issue not raised in the grievance directly.

e_2007skqb179.txt

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 084 Date: April 17, 2014 Ticket No: 7892112 Location: Pierceland Between: Her Majesty the Queen Appearing: Gregory Piper For the Crown Jim Dallyn On His Own Behalf Judgment M. F. Martinez, [1] Jim Dallyn is charged with the offence of driving faster than 60 kilometres per hour when passing highway workers or occupied highway equipment within a work zone. The offence is alleged to have occurred on September 5, 2013, on Highway 55 near Peerless, Saskatchewan. [2] Subsection 203(1) of The Traffic Safety Act governs the offence: Speed limits when passing highway workers 203(1) No person shall drive vehicle on highway at speed greater than 60 kilometres per hour when passing: (a) highway worker or flag person; (b) any highway equipment occupied by highway worker, whose presence on the highway is marked in the manner determined in the regulations made by the board; or (c) any highway equipment on highway that has its ministry issued warning lights in operation, whether it is in motion or not. [3] Jim Dallyn is not charged as the driver of the vehicle but as its registered owner. Section 273 of The Traffic Safety Act makes the registered owner liable for the driver’s misconduct when the vehicle is driven by anyone who has the owner’s actual or implied consent to do so. [4] Recent legislative amendments allow the Crown to prosecute contravention of subsection 203(1) of the Act without calling any witnesses (The Traffic Safety Act, S.S. 2004, c. T-18.1, section 259.1, and The Traffic Safety (Speed Monitoring) Regulations, c. T-18.1 Reg 10, sections and 5). [5] Consequently, the Crown’s evidence consisted of the following documents: 1. photograph of the offending vehicle taken by speed monitoring camera showing the date and time the photograph was taken and the speed of the vehicle when the photograph was taken, which in this case was 84 kms/hr, 2. the affidavit of Bradley George Christensen, the person who tested, deployed, and operated the speed monitoring device, 3. an SGI Motor Vehicle Division search certifying that Jim Dallyn was the registered owner of the vehicle on the date of the alleged offence, and 4. affidavits of service confirming service of the Summary Offence Notice, the photograph, Mr. Christensen’s affidavit, and the SGI Motor Vehicle Division certified search. [6] The Act allows the accused to ask for an order requiring Mr. Christensen to attend for the purpose of cross-examination, but Mr. Dallyn did not do so. [7] The accused was the only witness for the defence. [8] He testified that on September 5, 2013, he was driving and that he did not speed past any highway workers or occupied highway equipment in the work zone. He remembers following pilot truck with its warning lights operating. When it turned around on the highway and returned in the direction it had come, Mr. Dallyn said that he sped up as there weren’t any workers or equipment ahead of him. He believes that this is when the speed monitoring camera must have photographed his vehicle. [9] found Mr. Dallyn to be credible. [10] The Crown submits that the offence under subsection 203(1) of The Traffice Safety Act is strict liability offence and that its documentary evidence proves every element of the offence. The only aspect of the Crown’s case that Mr. Dallyn disputes is that he passed highway workers or occupied highway equipment when he was travelling faster than 60 kilometres per hour. [11] No workers or highway equipment can be seen in the photograph of the Dallyn vehicle. Bradley George Christensen’s observations of the vehicle appear in paragraphs and of his affidavit: “7. At 16:32 observed vehicle that appeared to be travelling above the posted speed limit of 60 kilometers [sic] an hour. The speed monitoring device indicated the motor vehicle was travelling at 84 kilometers [sic] an hour and at the same time it captured digital image and confirmed it was the same vehicle that had directed the laser beam at and accepted the image with the data as being accurate. The data embedded in the digital image included the event number #0017. 8. Also, at the time directed the laser at this motor vehicle there was worker activity in the speed monitored zone as indicated by my placement of an “X” beside the relevant circumstance(s): a) one or more highway workers or flag persons were present b) There were one or more pieces of highway equipment occupied by one of [sic] more highway workers present c) There were one or more pieces of highway equipment on the highway that had their ministry-issued warning lights in operation present [12] Mr. Dallyn is not charged with speeding in marked construction area with workers and equipment in the area. The offence is driving faster than 60 kilometres per hour when passing highway workers (whether or not they are in a marked construction zone), or when passing occupied highway equipment in a marked construction area, or when passing highway equipment actually on the highway and with its warning lights operating. None of the Crown’s documents prove that the Dallyn vehicle did anything of the kind. [13] In paragraph of his affidavit, Mr. Christensen says that he saw the Dallyn vehicle and that it appeared to be speeding. In paragraph of his affidavit, he says that there were highway workers and occupied highway equipment in the speed monitored zone. Nowhere does he say that:1. he observed the Dallyn vehicle apparently travelling above the speed limit when it passed highway workers or highway equipment and that he recorded the vehicle’s speed immediately after it passed the workers or equipment, or2. the Dallyn vehicle actually was passing highway workers or occupied highway equipment when the speed monitoring device recorded its speed. [14] For these reasons, I find Jim Dallyn not guilty. M.F. Martinez,

Criminal Law – Strict LiabilityStatutes – Interpretation – Traffic Safety Act, Section 203(1)Traffic Safety Act – Motor Vehicle Offences – Passing Highway Workers or Equipment The accused was charged with an offence contrary to s. 203(1) of The Traffic Safety Act, driving over 60 km/h passing highway workers or occupied highway equipment within a work zone. The accused was charged as the owner of the vehicle, not necessarily the driver. The offence was the result of a speed monitoring camera and the Act allows the Crown to complete their case without calling any witnesses. The accused testified that he did not speed past any highway workers or equipment. He said that he was following a pilot vehicle when he passed the workers and equipment and only sped up after the pilot vehicle turned around when there were no more workers or equipment. The picture of the accused’s vehicle from the speed monitoring camera did not show any highway workers or equipment. HELD: The person who tested and deployed the speed monitoring camera provided affidavit evidence that the picture was taken within a marked construction area but it did not say that the accused was speeding as he was passing highway workers or occupied highway equipment. Section 203(1) specifies that there is only an offence for travelling at a speed greater than 60 km/h when passing highway workers or operating equipment. The accused was found not guilty.

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$10,000.00 2001 SKCA 15 Docket: 145 THE COURT OF APPEAL FOR SASKATCHEWAN Coram: Cameron, Gerwing Lane JJ.A. HER MAJESTY THE QUEEN and RANDOLPH DAVID BUSH COUNSEL: Mr. K.W. MacKay, Q.C. for the Crown The Respondent in Person DISPOSITION: On Appeal From: Provincial Court Appeal Heard: February 1, 2001 Appeal Allowed: February 1, 2001 (orally) Written Reasons: February 7, 2001 Reasons By: The Honourable Mr. Justice Lane In Concurrence: The Honourable Mr. Justice Cameron, and The Honourable Madam Justice Gerwing LANE J.A. (orally) [1] The Crown appeals a conditional sentence of two years less one-day imposed on the respondent after he pled guilty to the following charges:On or about the 5th day of February, A.D. 2000, at or near Saskatoon, Saskatchewan, did break and enter a place, to wit, a dwelling house situated at 190 Carleton Drive, Saskatoon, and did commit therein the indictable offence of theft, contrary to Section 348(1)(b) of the Criminal Code;On or about the 5th day of February, A.D. 2000, at or near Saskatoon, Saskatchewan, did have in his possession property to wit, jewellery the property of Marlene Brower of a value not exceeding five thousand dollars knowing it was obtained by the commission in Canada of an offence punishable by indictment contrary to Section 355(b) of the Criminal Code;On or about the 4th day of March, A.D. 2000, at or near Saskatoon, Saskatchewan, did being at large on his undertaking given to a justice or a judge and being bound to comply with a condition thereof, to wit, keep the peace and be of good behaviour fail without lawful excuse to comply with that condition, contrary to Section 145(3) of the Criminal Code;On or about the 4th day of March, A.D. 2000, at or near Saskatoon, Saskatchewan, did break and enter a certain place, to wit, a dwelling house situated at 65 Red River Road and did commit therein the indictable offence of theft, contrary to Section 348(1)(b) of the Criminal Code;On or about the 4th day of March, A.D. 2000, at or near Saskatoon, Saskatchewan, did break and enter a place, to wit, a dwelling house situated at 1202 Elliott Street and did commit therein the indictable offence of theft, contrary to Section 348(1)(b) of the Criminal Code;On or about the 17th day of June, A.D. 2000, at or near Saskatoon, Saskatchewan, did being at large on his undertaking given to a justice or a judge band being bound to comply with a condition thereof, to wit, keep the peace and be of good behaviour, fail without lawful excuse to comply with that condition, contrary to Section 145(3) of the Criminal Code. [2] The respondent is 38 years old with 49 prior convictions. The sentencing judge had this to say in response to the Crown’s proposal of sentence of three to four years: “... when one reviews the record it is easy to understand the position taken by the Crown which is for penitentiary sentence.” The judge noted the respondent’s alcohol problem, his three and one-half years of sobriety, and that the respondent did so well on probation he was released early at his own request in December of 1999. The judge noted the community support for the respondent, his education, and technical trade training. She further considered a positive pre-sentence report and the fact the respondent spent time on remand. She was of the view community disposition was likely to be more effective than incarceration at rehabilitating the respondent. [3] We are all of the view the Crown’s appeal must be allowed. A conditional sentence was not available in these circumstances. The sentencing judge acknowledged it was easy to understand the position taken by the Crown when the Crown asked for penitentiary sentence. The judge ignored the danger to the community presented by the respondent. The respondent had no sooner finished his parole when he began to commit the subject offences. As well, the judge, in our view, failed to consider the gravity of the offences, the need for deterrence, and above all of the protection of the public. [4] The circumstances and the respondent’s lengthy record require penitentiary term be imposed (see R. v. Prendenchuk[1]). However we have considered the time already spent on electronic monitoring and the post–sentence efforts of the respondent to change and simply remove the conditional provision imposed below. [1](2000) S.J. No. 644.

The Crown appealed a conditional sentence of 2 years less a day imposed after the respondent pled guilty to three break and enters of dwelling houses and theft and possession of stolen property in February and March as well as two breaches of undertakings in March and June 2000. HELD: The conditional provision was removed as time spent on electronic monitoring and post sentence efforts were considered. A conditional sentence was not available in the circumstances. The 38 year old had 49 prior convictions. The sentencing judge noted the accused's 3.5 years of sobriety, community support, education and technical trade training, and positive pre-sentence report but failed to consider the gravity of the offences, the need for deterrence, and above all, protection of the public. The respondent had no sooner finished parole than he began to commit these crimes.

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Morgan, QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2009 SKQB 516 Date: 2009 12 31 Docket: Q.B.G. No. 252/2007 Judicial Centre: Saskatoon BETWEEN: TORONTO‑DOMINION BANK, and WHEATLAND INDUSTRIES (1990) LTD., Counsel: David G. Gerecke for the applicant, PricewaterhouseCoopers Inc., Receiver and Manager of Wheatland Industries (1990) Ltd. Jeffrey M. Lee for the plaintiff, Toronto-Dominion Bank Murray R. Sawatzky, Q.C. for CNH Capital Canada Ltd. and CNH Canada Ltd. and Sonia L. Eggerman JUDGMENT KOCH J. December 31, 2009 [1] Beginning in the 1990s and leading up to February 2007, Wheatland Industries (1990) Ltd. (“Wheatland”) carried on business as farm equipment dealer at separate locations at Rosetown, Saskatchewan, and Elrose, Saskatchewan. Wheatland entered into dealership agreements with equipment suppliers, including New Holland Canada, Ltd./ Ltée, Case Canada Corporation and Flexi-Coil Ltd. The respective financing corporations of each of the supplier corporations granted Wheatland lines of credit on the security of present and after‑acquired product inventory. By 2003, the three suppliers mentioned had become part of CNH Canada Ltd. (“CNH Canada”). Dealer financing for CNH Canada has been provided by CNH Capital Canada Ltd. (“CNH Capital”). [2] In 1999 Toronto‑Dominion Bank (“TD”) granted Wheatland credit facility of $500,000 plus an additional $20,000 in Visa credit, all financed by means of general security agreement pledging Wheatland’s present and after‑acquired personal property with personal guarantees from two individuals. On April 13, 1999, TD registered its security interest with the Saskatchewan Personal Property Registry. [3] On May 18, 1999, TD, New Holland (Canada) Credit Company and Wheatland entered into priority agreement whereby TD postponed its Wheatland security in favour of New Holland as to what is described in the agreement as “NHCC Financed Collateral”. New Holland postponed its Wheatland security in favour of TD as to assets of Wheatland, other than NHCC Financed Collateral. On May 15, 2002, TD entered into virtually identical agreement with Case Canada Corporation, Case Credit Ltd. and Wheatland. There may be similar agreement involving Flexi‑Coil, but it has not been provided. The existence and circumstances of the priority agreements are not contentious. The interpretation of them is. In general terms, the agreements provide that the security of New Holland (Canada) Credit Company and Case Credit Ltd. is to have priority over the TD security with respect to property sold to Wheatland by New Holland Canada, Ltd./Ltée and Case Canada Ltd. that Wheatland has not paid for in full. TD security is to have priority with respect to other chattel property which it contends includes property supplied by New Holland and Case that Wheatland has paid for. The CNH companies contend that TD does not have priority with respect to credits for returned parts. That is the primary issue now before the Court. It is not in dispute that CNH Canada and CNH Capital stand as successors to the respective contracting parties, and have assumed their respective rights and obligations relating to the TD priority agreements. [4] By April 2006 Wheatland was having financial difficulties. It was in default in its obligations to TD. On May 11, 2006, when Wheatland owed TD approximately $470,000, TD demanded payment and gave notice pursuant to s. 244 of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B‑3, of its intention to enforce its security. [5] In July and August 2006 CNH Canada applied to the Court under s. of the Agricultural Equipment Dealerships Act, S.S. 1999, c. A‑9.1, for determination as to whether CNH Canada had cause to terminate the Wheatland dealership agreement with New Holland Canada, Ltd./Ltée, dated January 1, 2000, and the Wheatland dealership agreement with Case Canada Corporation, dated July 18, 2002. Thereafter, Wheatland attempted to sell the dealership properties as functioning businesses but was unsuccessful. In orders dated February 8, 2006, and February 9, 2006, the respective applications of CNH Canada to terminate the dealership agreements were granted. [6] On February 27, 2007, TD commenced the present action against Wheatland, claiming $490,404.02 with ongoing interest. On February 28, 2007, the ex parte application of TD to appoint PricewaterhouseCoopers Inc. (“PwC”) as interim receiver of Wheatland pursuant to s. 47 of the Bankruptcy and Insolvency Act was granted. The order was to expire March 15, 2007, unless extended in the meantime upon notice to Wheatland and other interested parties. It was extended to March 26, 2007. When the matter came before the Court again on March 26, 2007, TD applied to terminate the appointment of PwC pursuant to the February 26, 2007 order and to appoint PwC as receiver and manager in respect of all of the Wheatland assets, undertakings and properties pursuant to ss. 65(1) of The Queen’s Bench Act, S.S. 1998, c. Q‑1.01, and ss. 64(8) of The Personal Property Security Act, 1993, S.S. 1993, c. P‑6.2. Both aspects of the application were granted. [7] PwC, as receiver/manager, liquidated the Wheatland property. However, disputes arose between PwC and CNH Canada and CNH Capital. The first was as to the priority of the CNH Capital security over the TD security as to credits to Wheatland arising from the return of parts inventory. The second related to whether CNH Canada was obligated to accept the return of parts ordered by Wheatland from Case Canada but shipped directly to Wheatland by third party suppliers. Accordingly, PwC has applied for the advice and direction of the Court as to the following: (a) whether the Case New Holland group (“CNH”) is obliged to pay certain amounts to the Receiver, as set out in the Report of the Receiver dated July 10, 2008 re: Issues Concerning CNH Group (the “Report”), in respect of credit balances of Wheatland and parts returned by the Receiver; and (b) whether CNH was required to purchase certain parts from the Receiver, mainly comprised of Direct Ship Items (as defined in the Report) from the Receiver, and whether CNH is obliged to pay certain amounts to the Reciever [sic], as set out in the Report, in respect of such parts. [8] The Receiver, as an officer of the Court, has filed report outlining the background facts in detail. The parties have filed affidavits with exhibits. However, as counsel have advised, there are no facts in dispute. The issues relate only to the interpretation of the respective priority agreements between TD and the CNH companies and to the interpretation of s. 50(14) of The Agricultural Implements Act, R.S.S. 1978, c. A‑10 (the “AIA”) as to the return of direct ship parts. [9] The CNH companies object to the propriety of court‑appointed receiver taking the side of competing creditor in priority dispute amongst creditors. In the context in which the issue has arisen here, this is collateral matter which has no impact on the outcome, except as to costs. Therefore, reject the objection, relying on the Saskatchewan Court of Appeal decision in Andersen (Arthur) Inc. v. Merit Energy Ltd., 2002 SKCA 105 (CanLII), 227 Sask. R. 44. The Receiver, in bringing this application, is acting on behalf of all creditors to determine priority between competing claimants. That is not the same as the Receiver seeking to change the priorities as between the respective claimants. Parts and service manuals returned by the Receiver to CNH Canada [10] In the course of liquidating the personal property of Wheatland, the Receiver returned parts and service manuals to CNH Canada. These returns, along with warranty credit of $1,861.40, resulted in credits in four distinct parts accounts totalling $235,336.96. The Receiver contends that these credits are assets of Wheatland and seeks to recover the total value of them from CNH Canada and CNH Capital. CNH Canada and CNH Capital, relying on the provisions of the respective priority agreements, claim that they are entitled to set off these credits against debits in other Wheatland accounts relating to the sale of whole goods and against debits in Wheatland accounts relating to the financing of trade‑in inventory. This issue turns on the wording of certain provisions of the priority agreements. As the provisions of the New Holland (Canada) Credit Company agreement and the Case Canada Corporation agreement relevant for present are identical, references herein will be only to the New Holland (Canada) Credit Company agreement. [11] The operative provisions of the priority agreement are in paragraphs 4.1 and 4.2 as follows: 4.1 The Bank hereby agrees that the Bank Security is hereby postponed and subordinated in all respects to the NHCC Security on the NHCC Financed Collateral. The Bank further agrees that NHCC shall also be absolutely entitled to any conditional sale contracts or other chattel paper.... The Bank further agrees that the NHCC Security in the Credits included in the NHCC Finance [sic] Collateral and all Proceeds thereof shall at all times remain prior to and rank ahead of the Bank’s Security in such Credits. 4.2 NHCC hereby agrees that the NHCC Security is hereby post‑poned [sic] and subordinated in all respects to the Bank Security on all the present and future assets of the Dealer [other] than the NHCC Financed Collateral. NHCC further agrees that the NHCC Security related to any new or used Goods forming part of the NHCC Financed Collateral, and all Proceeds of the Goods, is hereby postponed and subordinated in all respects to the Bank Security related to the new or used Goods and the Proceeds thereof, effective upon NHCC having been paid by the Dealer in full for such Goods. NHCC further agrees that the NHCC Security related to any trade‑in Goods forming part of the NHCC Financed Collateral and all Proceeds of such trade‑in Goods is hereby postponed and subordinated in all respects to the Bank Security related to the Trade‑in Goods and the Proceeds thereof, effective upon the purchase price for the new Goods acquired by the Dealer’s customer who delivered the trade in Goods to the Dealer as part consideration for the new Goods acquired by such customer, having been paid in full. The parties are on common ground that in order to correctly express what was agreed upon, the word “other” must be added in the first sentence of paragraph 4.2 to correct typographical omission. [12] To construe these paragraphs, it is necessary to refer to the following definitions in paragraph 2.1: 2.1 In this Agreement, the following terms shall have the meanings attributed to them: ... (b) “NHCC Financed Collateral” means the following present and future assets of the Dealer: (i) All of the Dealer’s present and after‑acquired inventory financed by NHCC consisting of new, used and trade‑in Goods and all parts and supplies for such Goods (the NHCC Inventory); (ii) all present and after‑acquired Credits relating to any item of NHCC Inventory and including all credits due or accruing due to the Dealer from NHCC; and (iii) all choses in action, rights and contracts relating to the NHCC Inventory and all Proceeds realized by the Dealer from such contracts, the NHCC Inventory and Credits, other than choses in action, rights and contracts arising from the sale by the Dealer of parts and services in the ordinary course of its business. (c) “NHCC Security” shall mean any security documentation now or in the future held by NHCC from the Dealer charging the present and future assets of the Dealer, including without limiting the generality of the foregoing, the documents listed in Schedule hereto, if any. (d) “Credits” includes all factory rebates, credits, advertising and promotional allowances, and all other amounts, credits or claims due or accruing due to the Dealer from manufacturer or distributor of goods, parts, and supplies. (e) “Proceeds” means personal property in any form derived directly or indirectly from any dealing with the Dealer’s assets or that indemnifies for assets of the Dealer that are destroyed or damaged. The term “NHCC Inventory” in accordance with para. 2.1(b)(i) refers to after‑acquired inventory financed by NHCC consisting of new, used and trade‑in Goods and all parts and supplies for such Goods. [13] Paragraph 1.1 of the agreement stipulates that the recitals in the preamble are to be read and construed as part of the agreement. The preamble provides: WHEREAS the Dealer is in the business of selling, leasing and repairing tractors, agricultural and industrial equipment, and implements (hereinafter referred to as “Goods”); AND WHEREAS the Bank has loaned money or made other financial accommodations to the Dealer and may in future loan further monies or make further financial accommodations to the Dealer to enable the Dealer to operate its business; AND WHEREAS NHCC is supplying credit and may in the future supply further credit to the Dealer to enable the Dealer to acquire and hold for sale or lease, Goods and parts and supplies therefor; AND WHEREAS the Bank and NHCC have taken and may in future take security documents from the Dealer to secure payment of the respective present and future indebtedness and obligations of the Dealer to each of them; The first and third recitals are particularly notable. [14] The CNH companies contend that they are entitled to claim priority on the parts credits pursuant to paragraph 4.1 of the agreement because parts are “NHCC Financed Collateral” as defined in paragraph 2.1(b)(i). This argument is supported by the first recital paragraph wherein the word “Goods” is stated is to include tractors, agricultural and industrial equipment and implements, without explicit reference to parts and supplies. It is also supported by the third recital which specifically refers to “Goods and parts”, leading to the inference that parts are not included in “Goods” and must be something different than “Goods”. The reference in paragraph 2.1(b)(i) is also consistent with the contention that the reference to “Goods” does not include parts or supplies. In subparagraph (i) the word “Goods” is used conjunctively with the words “parts and supplies”. As well in the definition of “Credits” in paragraph 2.1(d), the word “Goods” is separated from the word “parts”, albeit in different context. The definition of “Credits” in paragraph 2.1(d) also refers to “goods” and “parts” separately and conjunctively, although in that definition, the word “goods” commences with lowercase letter “g”. This does not appear to support the CNH position. Credits are not included in the “NHCC Financed Collateral” and the “Proceeds” thereof, but they are obviously included in the present and future assets of the dealer other than the “NHCC Financed Collateral” in accordance with the first sentence of paragraph 4.2. [15] TD’s priority claim is based on the first two sentences in paragraph 4.2. TD contends that the NHCC priority does not extend to parts or credit for parts. It is TD’s position that the NHCC security is postponed in favour of TD as to any new and used Goods effective upon NHCC having been paid by the dealer in full for them. For this contention to prevail, the word “Goods” must be interpreted to include “parts” which in common English language usage would surely be the case. [16] The CNH companies contend that they are entitled to claim prior security to the credits generated by the parts returned based on the reasoning that parts, the proceeds of parts returned and the credits thereby generated are not included in the assets in respect of which TD is entitled to claim priority pursuant to paragraph 4.2. CNH contends that the priority extended to TD by paragraph 4.2 includes only assets that are not “NHCC Financed Collateral”. Notwithstanding that the parts in issue have been, in effect, paid for, CNH contends that those parts are nevertheless “NHCC Financed Collateral”. [17] am not able to follow the fine distinctions required to support the CNH position. [18] do not accept the submission of the CNH counsel that the goods/parts issue is the cornerstone of the priority agreement. The critical issue is the distinction between inventory and credits paid for by Wheatland and inventory and credits financed by NHCC that Wheatland has not paid for. see that as the essential intent of the contracting parties and the impact of the agreement. If that were not the case, it would have been logical for the agreement to have contained an explicit provision that parts and supplies are not “Goods” or “inventory” for the purposes of the agreement. note that the contrary intention of CNH is indicated in the NH policy manual. However, there is no reference to any manual or manuals in the priority agreement itself, nor is there any acknowledgement or recognition of the provisions of any NHCC policy manuals by TD. [19] should comment on the CNH submission that the fact that the specific reference to new goods, used goods and trade‑in goods indicates that the omission of the word “parts” in these categories indicates that parts are something separate or different. This does not, in my view, serve to identify an intention on the part of TD to relinquish any rights to its security claim against paid‑for parts. [20] Notwithstanding the possibility of a contrary interpretation, in accordance with the submission on behalf of CNH on this application, it seems clear that objective of the contracting parties when they entered the priority agreement was that the NHCC security would have priority over the TD security as to Wheatland inventory supplied by New Holland but not paid for by Wheatland or returned for credit. But once the inventory supplied by New Holland was paid for by Wheatland, the TD general security on Wheatland’s present and after‑acquired property would prevail. [21] Based on the foregoing, find that the Receiver has proven it is entitled to recover the credits in the parts accounts. PwC is entitled to recover from CNH Canada and CNH Capital the full balances of the credit accounts totalling $235,336.96. This does not affect the rights of creditors of Wheatland, other than CNH, to contest the validity of the TD security claims. The Direct Ship Issue [22] The second issue only arises as the result of the Receiver succeeding on the first issue. It relates to the Receiver’s right to require CNH Canada to repurchase parts inventory acquired from CNH Canada or its predecessors, notwithstanding that these parts were shipped direct to Wheatland by third party suppliers at the request of CNH Capital. direct ship transaction occurred when Wheatland ordered part from Case or New Holland, and Case or New Holland passed on the order to third party supplier, instructing the supplier to direct ship to Wheatland. The third party supplier would bill Case or New Holland; Case or New Holland would bill Wheatland; Wheatland would pay Case or New Holland. The only link between Wheatland and the third party supplier was that the supplier would deliver the product directly to Wheatland rather than first delivering it to Case or New Holland for shipment to Wheatland. Orders placed by Wheatland in respect of which direct shipment was contemplated were identified by code number on the requisition form submitted to CNH by Wheatland. Wheatland had no control over whether any particular product was to be supplied directly by Case, New Holland or CNH Canada, or by third party supplier. However, because of the use of the direct ship code number on the orders, Wheatland was presumably aware when it placed orders, that certain items were going to be direct shipped to Wheatland by third party suppliers. Pursuant to explicit provisions in the respective dealership agreements, CNH Canada was not obligated to restock direct ship parts inventory. [23] The matter does not end there, however. The contractual right of CNH Canada to refuse to restock direct ship inventory (and the corporate policy of CNH Canada to refuse to restock direct ship inventory) is subject to the provisions of s. 50 of the AIA. Section 50 provides in part: (2) Within 90 days after the day an agreement expires or is terminated by the dealer or the supplier for any reason, dealer may give to the supplier written notice to purchase containing request by the dealer that the supplier purchase: (a) all unused implements, unused parts, signs, computer hardware and computer software obtained from or required by the supplier; and (b) any special tools and service manuals obtained from or required by the supplier. (3) If notice to purchase is given to the supplier in accordance with subsection (2), the supplier shall, subject to this Act and the regulations, purchase from the dealer: (a) all unused implements obtained by the dealer from the supplier; (b) all unused parts purchased as parts by the dealer from the supplier; (c) all signs carrying the supplier’s current logo obtained from or required by the supplier within five years before the expiration or termination of the agreement; (d) all computer hardware that: (i) was purchased from the supplier or required by the supplier within two years before the expiration or termination of the agreement; and (ii) was used exclusively to do business with the supplier; (e) all computer software that: (i) was created and owned by the supplier; (ii) was sold directly to the dealer within two years before the expiration or termination of the agreement; and (iii) was used exclusively to do business with the supplier; (f) all service manuals that the dealer was required to purchase from the supplier within the two years before the expiration or termination of the agreement; and (g) all special tools that the supplier required the dealer to purchase within the two years before the expiration or termination of the agreement and that are used exclusively for servicing the supplier’s products. (14) supplier is not required to purchase any of the following: (a) an unused part that is not clearly identified by its part number; (b) an unused part that: (i) is not listed in the supplier’s current price list; and (ii) is for use in an implement that was manufactured more than 10 years before the expiry or termination of the agreement; (c) an unused part specially ordered by the dealer from the supplier on the understanding that the part was not returnable by the dealer; (d) unused implements, unused parts, signs, computer hardware, computer software, service manuals and special tools that are subject to lien, charge, encumbrance or mortgage in favour of third party in an amount in excess of the amount that the supplier would be required to pay to the dealer pursuant to this section; (e) unused implements, unused parts, signs, computer hardware, computer software, service manuals and special tools that have not been adequately prepared for shipment in accordance with clause (18)(b) within the 91‑day period mentioned in subclause (16)(b)(i) or in any extension of that period granted pursuant to subsection (10). (22) This section applies to supplier and dealer notwithstanding any provision to the contrary in an agreement or any other contract or arrangement between the supplier and the dealer, and, if provision of the agreement is more advantageous to the dealer than the provision of this section pertaining to the same subject‑matter, the more advantageous provision of the agreement applies. Also relevant is s. 25(d) of The Agricultural Implements Regulations, 1982, R.R.S. A‑10 Reg 1, which provides: 25 In section 50 of the Act and in these regulations: ... (d) “supplier’s current price list” means the latest comprehensive price list or lists of the supplier that includes all parts that may be ordered by dealer from the supplier including parts that are ordered from the supplier that are shipped directly to the dealer from third party; [24] The issue arises pursuant to s. 50(14)(c). While it is obvious that direct ship parts are contractually excluded but the question is whether the direct shipped parts in this case were “specially ordered” by Wheatland as stipulated in ss. 50(14)(c). The direct ship parts in issue consist of very ordinary articles such as nuts and bolts, washers, O‑rings, seals, gaskets and bearings. [25] It is not in dispute that the value for restocking purposes of the direct ship parts that the Receiver sought to return that CNH Canada refused to accept is $107,783.85. However, the Receiver’s claim is adjusted to $88,724.59 because, by agreement between CNH Canada and the Receiver, the direct ship items were sold at auction, yielding net sale proceeds to the Receiver of $19,059.26. The Receiver’s net claim, therefore, against CNH Canada and CNH Capital with respect to the restocking of direct ship parts is $88,724.59. [26] The contractual provisions clearly entitle CNH Capital to refuse to restock direct ship parts. However, ss. 50(2) and (3) serve to override the contrary contractual provisions in certain circumstances. Subsection 50(14) describes situations in which supplier is not required to repurchase. In accordance with s. 50(14)(c), the supplier’s obligation to repurchase does not extend to unused parts “specially ordered” by the dealer from the supplier on the understanding that the part was not returnable by the dealer. [27] The Receiver contends that for parts to be “specially ordered”, they must be unique or “one‑off” items. CNH Canada contends that the word “specially” as used in s.50(14) does not mean “special”, only “different”, and what is different in this case is that CNH Canada and Wheatland had mutual understanding that parts specially ordered would not be returnable. As previously indicated, there is no basis to contend that the kinds of articles involved were in any way unique. Indeed, they were commonplace articles of personal property required by a farm machinery dealer for its use and for use by its retail customers. The employment of the direct ship inventory model was supposedly for the mutual benefit of CNH Canada and Wheatland. Obviously, it would be way to supply parts inventory more quickly. Probably the shipping costs were lower than if the respective third party suppliers shipped to CNH. There was nothing special about the product, about the dealer’s use of it, about the customer’s use of it or about the ability of Wheatland or any other dealer to sell the product to retail customers in the normal course of business. The single identifiable element to distinguish direct ship parts from parts shipped by CNH Canada is the mode of delivery. [28] Counsel for TD cites the decision of R. v. T. Eaton Co. Ltd. (1973), 1973 CanLII 1505 (MB QB), 14 C.C.C. (2d) 124 (Man. Q.B.), wherein Wilson J. offers comment on the meaning of the words “special” and “specially”, at page 127: The word “special”, or phrases incorporating that word or its adverbial derivative “specially”, is not without meaning. For the lawyer, one thinks perhaps of “special damages”, “special agent”, or “special jury”, and no doubt there are other phrases of less technical significance, say “special leave”, or “special circumstances”. These last bring us closer to the every‑day meaning imported by the word “special”, namely, something out of the ordinary, thing exceptional, designed for particular purpose, occasion, or person. So that, in reading the phrase “specially priced”, one is entitled to expect that the amount asked represents exceptional value. It appears that the contractual arrangements were intended to enable CNH Canada to opt out of its AIA obligations to repurchase inventory from a terminated dealer (ss. 50(22)). The AIA does not permit or accommodate such opting out. As well, the provisions of s. 50 appear to be designed to protect the supplier as well as the dealer. To be eligible for return, part must be unused; it must be clearly identified by part number; it must be listed in the supplier’s current price list; it must be for use in an implement that was manufactured not more than 10 years before the termination of the agreement. In addition, the supplier is entitled to discount the invoice price, supposedly to compensate for restocking. [29] I am not persuaded that the parts in issue in this case were specially ordered. On that account, the second issue is resolved in favour of the Receiver. [30] The Receiver, PwC is entitled to its costs of this motion, one set of costs against CNH Canada and CNH Capital together. TD, although represented before me, is not separate party to the application, notwithstanding that the application is within the procedural framework of its action against Wheatland. Therefore TD is not entitled to costs.

In 1999 the plaintiff Bank granted the defendant, Wheatland, a credit facility of $500,000 plus an additional $20,000 in Visa Credit, all financed by means of a general security agreement pledging Wheatland's present and after acquired personal property with personal guarantees from two individuals. In April 1999 the Bank registered its security interest with the Personal Property Registry (PPR). Wheatland carried on business as a farm equipment dealer. Wheatland entered into dealership agreements with equipment suppliers (CNH). The Bank entered into a priority agreement whereby the Bank postponed its interest in favour of CNH. The issue in the present application is the Bank's priority with respect to credits for returned parts. The issues require an interpretation of the respective priority agreements between the Bank and the CNH companies. HELD: 1) The critical issue is the distinction between inventory and credits paid for by Wheatland and inventory and credits financed by CNH that Wheatland has not paid for. The objective of the contracting parties when they entered the priority agreement was that the CNH security would have priority over the Bank security as to Wheatland inventory supplied by the suppliers but not paid for by Wheatland or returned for credit. But once the supplied inventory was paid for by Wheatland, the Bank's general security on Wheatland's present and after acquired property would prevail. 2) The second issue only arises as the result of the first issue. It relates to the Receiver's right to require CNH Canada to repurchase parts inventory acquired from CNH Canada or its predecessors, notwithstanding that these parts were shipped direct to Wheatland by third party suppliers at the request of CNH. The issue arises pursuant to s. 50(14)(c) of The Agricultural Implements Act (AIA). While it is obvious that the direct ship parts are contractually excluded, the question is whether the direct shipped parts in this case were 'specially ordered' by Wheatland as stipulated in s. 50(14)(c) of the Act. The direct ship parts at issue consist of very ordinary articles such as nuts and bolts, washers, O-rings, seals, gaskets and bearings. The contractual provisions entitle CNH to refuse to restock direct ship parts. However s. 50(2) and s. 50(3) override the contrary contractual provisions in certain circumstances. It appears that the contractual arrangements were intended to enable CNH to opt out of its AIA obligations to repurchase inventory from a terminated dealer. The AIA does not permit or accommodate such opting out. The provisions of s. 50 appear to be designed to protect the supplier as well as the dealer. The Court is not persuaded that the parts in this case were in any way unique or specially ordered. They were commonplace articles of personal property required by a farm machinery dealer for its use and for use by its retail customers.

2_2009skqb516.txt

J. Q.B.G. A.D. 1996 No. 3293 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA IN THE MATTER OF THE ESTATE OF DALE GERARD ALMASI, LATE OF MELVILLE, IN THE PROVINCE OF SASKATCHEWAN BETWEEN: JADE ANTHONY DALE ALMASI (an infant suing by his litigation guardian, Shannon Lee Kerr) and LORNE ALMASI (Executor of the estate of DALE GERARD ALMASI) RESPONDENT Kerri A. Froc for the applicant Noel S. Sandomirsky, Q.C. for the respondent AMENDMENT TO JUDGMENT KRAUS J. AND FURTHER DIRECTION May 27, 1999 [1] The applicant applies for amendment of my judgment of March 19, 1999 insofar as it relates to costs. At the conclusion of trial, counsel requested that reserve on the matter of costs. It is now clear that the applicant intended to make a submission for award of solicitor and client costs of approximately $70,000. Evidence was led at trial about insubstantial offers made directly between the parties. The further evidence now shows, in fact, that substantial offers were made through counsel, although that evidence was not before the Court at trial. [2] In my judgment awarded the applicant costs on the basis of Column IV, Schedule 1B of the Tariff of Costs of The Queen’s Bench Rules; declined to order solicitor and client costs on the basis that the applicant had always claimed the entire estate assets but did not have the complete evidence as to all offers before me. The applicant submits that the judgment in that particular requires amendment since there was no evidence before the Court at trial about substantive offers made by counsel for the parties. [3] In the circumstances, am satisfied that should reconsider the matter of costs since counsel had intended to make further representations and lead further evidence about substantive offers made prior to trial and that evidence and submissions do have direct bearing on the matter of solicitor and client costs. Rule 343A contemplates amendment of the judgment in these circumstances, and, furthermore, the jurisprudence is clear that the court possesses an inherent power to vary its own order so as to carry out what was intended or even to reconsider or withdraw the decision so long as the order has not been perfected. Friesen et al. v. Saskatchewan Mortgage and Trust Corporation Limited et al., 1926 CanLII 148 (SK CA), [1926] W.W.R. 125; 21 Sask. L.R. (Sask. C.A.), Bailey v. Saskatchewan Registered Nurses’ Assn., [1997] S.J. No. 180 (QL) (Q.B.), Saskatchewan v. Mountain Pacific Transport Ltd. et al. (1995), 1995 CanLII 6106 (SK QB), 129 Sask. R. (Q.B.). Here, the order has not been perfected; indeed, the respondent has been awaiting the outcome of this application in order to satisfy the judgment. [4] Special circumstances which compel the reconsideration of the judgment with respect to the issue include: the Court did not hear argument on the issue of costs at trial; counsel requested that issue be reserved; there is substantial monetary difference between the party and party costs awarded in the judgment, and the solicitor and client costs claimed by the applicant; s. 22 of The Dependants’ Relief Act, 1996, S.S. 1996, c. D-25.01 disallows appeal to the Court of Appeal on an order as to costs and, thus, this Court is the court of last resort on that issue; and, the re-hearing of this issue does not involve the merits of the case and was limited to the issue of costs (although the applicant also seeks direction with respect to post-judgment interest). [5] In light of these authorities and special circumstances, am of the view that am not functus officio, and that have jurisdiction to reconsider the matter of costs, and in particular, to hear the application by the applicant for solicitor and client costs. [6] The applicant argues that solicitor and client costs should be awarded primarily because of the offer of settlement made to the respondent on September 16, 1996 for lump sum payment of $250,000, inclusive of costs, and provided that, if the offer was not accepted by September 27, 1996, claim would be commenced under The Dependants’ Relief Act, 1996, supra to seek the entirety of the estate. In response, the respondent counter-offered settlement for $100,000, inclusive of costs. Neither of those offers were time limited and each was open for acceptance up to and including the trial. The applicant submits that the sum of the award in my judgment, together with the maintenance payments since the time of the offer and the party and party costs (approximately $20,000), would approximate $230,000. Ergo, the applicant submits, that the total recovery of $230,000 is close to the offer of $250,000 made in September of 1996. In effect, the applicant characterizes herself as the successful litigant. [7] The evidence also shows that, following the pre-trial conference, in 1999, the respondent offered settlement at $156,000, based on the report of Dr. Tompkins, an expert retained by the respondent. [8] In the alternative, the applicant seeks solicitor and client costs to be paid from the date of the offer, namely September 16, 1996, which would result in reduction of approximately $5,000 in fees and disbursements. In the further alternative, the applicant requests fixed award of costs in order to avoid taxation. [9] The respondent argues that the position taken before Wimmer J. (who directed the issue to trial) was that the estate was willing to pay reasonable maintenance for Jade based on the needs-based approach, and that the quantum of maintenance could have been summarily determined without the necessity of extensive discoveries and without a lengthy trial. The respondent argues that the position of the applicant before the Court was always to claim that the entire estate should be transferred to satisfy Jade’s maintenance, and that many interlocutory applications and steps would have been unnecessary had the applicant agreed to submit the question of determination of reasonable maintenance to the Court for summary disposition. The respondent submits that the approach of the needs-based assessment for maintenance was upheld in my judgment, and was always the approach consistently taken on behalf of the estate. The respondent argues that the real question is whether the parties were acting bona fide during their negotiations and that the issue should not be determined on the basis of the closeness of the offers. [10] Orkin, in The Law of Costs, (Aurora: Canada Law Book Inc., 1998) at 2-2 accurately described the objective of the court in awarding costs: The Canadian practice in awarding costs has been characterized as an attempt to balance two conflicting principles: one, that successful party to litigation who is free of blame should not be required to bear the costs of either prosecuting or defending the action, and two, that citizens will be unduly hesitant to assert or defend their rights in court if an unsuccessful party is required to bear all the costs of successful one. It is these two conflicting principles that must balance in awarding costs. [11] The court’s discretion to award costs arises out of its inherent equitable jurisdiction and out of Rule 542 of The Queen’s Bench Rules of Court. Rule 542 provides that the costs of all proceedings in the court are in the discretion of the court. This discretion is virtually unfettered but must be exercised judicially on the facts of the case: Benson v. Benson (1994), 1994 CanLII 4554 (SK CA), 120 Sask. R. 17, 68 W.A.C. 17 (C.A.). The Dependants’ Relief Act, 1996 also provides that costs are in the discretion of the court: 21 The court may: (a) direct that the costs of any application be paid out of the estate or in any other manner that it considers just; and (b) fix the amount of the costs, exclusive of necessary disbursements, at lump sum having regard to the value of the estate and the amount of any maintenance applied for or directed by the order. [12] Solicitor and client costs are within the discretion of the court but such discretion is exercised only in rare and exceptional circumstances such as administration suits and actions brought by trustees or where there has been reprehensible, scandalous or outrageous conduct meriting the court’s censure: Canada Permanent Trust Company v. Saunders et al., 1938 CanLII 167 (SK CA), [1938] W.W.R. 657 (Sask. C.A.); Young v. Young (1993), 1993 CanLII 34 (SCC), 108 D.L.R. (4th) 193; S.C.R. (S.C.C.); and Law Society of Saskatchewan v. Robertson Stromberg, 1996 CanLII 7176 (SK QB), [1996] 10 W.W.R. 737, 149 Sask. R. 226 (Q.B.). ORDERS [13] Solicitor and client costs of approximately $70,000 claimed by the applicant are not appropriate here. The conduct of the respondent cannot be characterized as reprehensible, scandalous or outrageous. The respondent’s unwillingness to make full financial disclosure did contribute to the increase of costs but is insufficient to merit the censure of the Court through full solicitor and client costs. [14] In addition, the applicant’s conduct was not entirely pure. The judgment of Madam Justice Gunn in this matter, dated April 29, 1998 at paragraph states that under The Dependants’ Relief Act, 1996, there is nothing that indicates that person entitled to part of an estate is beneficiary but rather, that beneficiary may be found entitled to “maintenance”. In spite of this ruling, the applicant continued to claim the whole of the estate and to pursue full disclosure of the financial worth of the estate. The applicant argued that the Court needed to know the full extent of the estate so as to properly determine the applicant’s entitlement to the estate. This argument cannot be accepted. employed needs-based approach to assess maintenance, as dictated by The Dependants’ Relief Act, 1996, and it was merely happenstance that the maintenance order was roughly equivalent to one-half of the estate. [15] The Court is faced with two equally untenable positions in determining the costs. If the costs of the litigation were to be paid out of the award, the remainder may be insufficient to meet Jade’s anticipated needs. Yet, this is not an appropriate case in which to order full solicitor and client costs. [16] In this situation, however, it is appropriate for the Court to fix the costs to the applicant in lump sum: Law Society of Saskatchewan v. Robertson Stromberg, supra. [17] In fixing an amount, have considered the principles in Nalder v. Hawkins (1833), Myl. K. 243; 39 E.R. 937 in Re Champ (1986), 1986 CanLII 3001 (SK QB), 47 Sask. R. 305 (Q.B.), It is undeniable that the habit of the court has been to encourage persons to come forward as next friends for the purpose of obtaining its aid in [sic] behalf of parties incapacitated to sue for themselves. The language of the books is frequently, that next friends should not be discouraged; but there are cases which go much further, both in their language and in their tendency; cases which, both by the words used and the things done, give great encouragement to undertake the office. .This does not mean, however, that next friend can do just as he pleases. [18] The testator’s failure to provide for his dependant son, Jade, did necessitate the application of the next friend under The Dependants’ Relief Act, 1996. However, the length of time to trial and the number of interim applications are partially attributable to the applicant who continued to make exaggerated claim for the whole of the testator’s estate well past the time when it was appropriate. This contributed to the respondent’s unwillingness to disclose the financial worth of the estate and prolonged the litigation and as such should be factor into the costs awarded: Electronic Superstore Ltd. v. Geransky Brothers Construction Ltd. (1991), 1991 CanLII 7581 (SK QB), 90 Sask. R. 150; Roberts v. Teslyk (1987), 1987 CanLII 2412 (BC SC), 21 B.C.L.R. (2d) 214 (B.C.S.C.). [19] am mindful that it is incumbent upon the Court not to permit unnecessary litigation to be paid for by the estate: Orleski v. Reid, 1985 CanLII 2328 (SK QB), [1985] W.W.R. 560, 38 Sask. R. 38 (Q.B.); and Re Wolfes Estate, 1957 CanLII 591 (BC CA), [1957] 21 W.W.R. 85 (B.C.C.A.). [20] must also consider the offer of settlement made by the applicant to the respondent on September 16, 1999. Rule 184C of The Queen’s Bench Rules allows the court to take into account offers of settlement that do not meet the requirements of the other rules in Part 14A of the Rules in assessing appropriate costs. These settlement rules attempt to promote settlement without incurring the cost and inconvenience of trial. Here, the applicant made the offer well before the application went to trial and the offer remained open until judgment was given. The amount of judgment was approximately $20,000 less than the offer which was genuine and given in the spirit of compromise and settlement. From that perspective, it was reasonable and would have avoided further litigation. The respondent declined to accept the offer and undertook the risk that costs would be awarded against the estate at trial and now must bear some additional cost for failure to settle. [21] have also considered the nature of the issue, the time spent by counsel, the degree of the applicant’s success and the desire to avoid any further delay and cost that may be incurred through taxation of costs. [22] In all of the circumstances, I order fixed costs to the applicant in the amount of $47,000, together with disbursements. [23] Secondly, the applicant applies for directions as to interest on the award. am asked to consider the respondent’s position that the $200,000 award will not be paid until formal judgment is taken out. [24] The Executions Act, R.S.S. 1978, c. E-12 provides (in s. 30) that every judgment debt shall carry interest at the rate of five percent per annum from the time of entering the judgment until the judgment is satisfied. This section must be interpreted in the light of Rule 337 of The Queen’s Bench Rules which states that the entry of judgment shall be dated as of the day that judgment is pronounced unless the court otherwise orders and that the judgment takes effect from that date. In Delaire v. Delaire, 1996 CanLII 6752 (SK QB), [1996] W.W.R. 469, 147 Sask. R. 161 (Q.B.), the Court held that the debt created by judgment is debt due and payable as of the date of pronouncement and that collection proceedings may be properly taken before formal judgment is entered. This general principle is applicable here. The judgment of March 19, 1999 created debt owing to the applicant from the respondent and the debt became due and payable on the date of pronouncement, being March 19, 1999. The Executions Act states that interest runs “from the time of entering judgment” and not from the time of entering formal judgment. [25] Therefore, order that the respondent pay to the applicant post-judgment interest at rate of five percent per annum from the date judgment was pronounced, being March 19, 1999, in accordance with s. 30 of The Executions Act, and until judgment is satisfied.

The applicant applies for amendment of the judgment dated March 19, 1999 as it relates to costs. At the end of trial, the applicant requested the Court to reserve on the matter of costs. The applicant intended to make a submission for award of solicitor and clients costs. Evidence was led at trial about insubstantial offers made directly between the parties. Further evidence now indicates that substantial offers were made through council although not led at trial. The applicant argues that solicitor and client costs of $70,000 should be awarded because the offer to settle of $250,000 is close to the total judgment award of $230,000 including party and party costs of $20,000. The respondent takes the position that the estate was willing to pay reasonable maintenance costs and the quantum of maintenance could have been summarily determined without the necessity of extensive discoveries and without a lengthy trial. The respondent submits the approach of a needs-based assessment was upheld by the judgment and is always the approach always taken on behalf of the estate. The respondent argues the real question is whether the parties were acting bona fide during their negotiations and the issue should not be determined on the basis of the closeness of the offers. HELD: Solicitor and Client Costs of $70,000 are not appropriate in this case. The applicant's conduct was not entirely pure. The applicant was made aware in a prior judgment that under The Dependants' Relief Act there is nothing to indicate that a person is entitled to part of an estate as a beneficiary but rather that a beneficiary is entitled to maintenance. In spite of this ruling the applicant continued to claim the whole of the estate and to pursue full disclosure of the financial worth of the estate. Solicitor and client costs are within the discretion of the court but such discretion is exercise only in rare and exceptional circumstances. The conduct of the respondent cannot be characterized as reprehensible, scandalous or outrageous. The respondent's unwillingness to make full financial disclosure did contribute to the increase of costs but is insufficient to merit full solicitor and client costs. The Court awards fixed costs to the applicant in the amount of $47,000 together with disbursements.

b_1999canlii12595.txt

J. _C.S. A.D. 1992 No. 1209 J.C. R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA IN THE MATTER OF THE INFORMATION SWORN BY SERGEANT T.D. BLUM OF REGINA, SASKATCHEWAN, PEACE OFFICER, ALLEGING THAT HARRY EDWARD STIENWAND, ROBERT A. LAPORTE AND OTTO DAVID CUTTS, DID BETWEEN ON OR ABOUT THE 1ST DAY OF APRIL, 1988 AND ON OR ABOUT THE 30TH DAY OF SEPTEMBER, 1988 AT OR NEAR REGINA, SASKATCHEWAN CONSPIRE TOGETHER TO COMMIT THE INDICTABLE OFFENCE OF FRAUD UPON SASKATCHEWAN PROPERTY MANAGEMENT CORPORATION CONTRARY TO SECTION 380(1) OF THE CRIMINAL CODE AND DID THEREBY COMMIT AN OFFENCE CONTRARY TO SECTION 354(C) OF THE CRIMINAL CODE AND DID BETWEEN ON OR ABOUT THE 1ST DAY OF APRIL, 1988 AND ON OR ABOUT THE 30TH DAY OF SEPTEMBER, 1988 AT OR NEAR REGINA, SASKATCHEWAN, DEFRAUD THE SASKATCHEWAN PROPERTY MANAGEMENT CORPORATION OF MONEY IN AN AMOUNT EXCEEDING $1,000.00 BY DECEIT, FALSEHOOD OR OTHER FRAUDULENT MEANS, TO WIT: BY MEANS OF FALSE INVOICES TOTALLING $66,000.00 AND DID THEREBY COMMIT AN OFFENCE CONTRARY TO SECTION 380(1) OF THE CRIMINAL CODE. and IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS FOR AN ORDER COMPELLING DISCLOSURE OF CERTAIN INFORMATION IN THE POSSESSION OF HER MAJESTY THE QUEEN RELEVANT TO THE SAID CHARGES. BETWEEN: ROBERT A. LAPORTE, HARRY EDWARD STIENWAND, and OTTO DAVID CUTTS and HER MAJESTY THE QUEEN RESPONDENT F.J. Kovach for harry Edward Stienwand A.A. Fox for Robert A. Laporte Eric Neufeld for the Crown FIAT BARCLAY J. December 8, 1993 Further to my fiat of September 21, 1993, and the more recent chambers application, the only matters that reserved are MMM, NNN, OOO, PPP, number and number 10. will deal with them in order. MMM, NNN, OOO, PPP The Crown has already disclosed the contents of each of these blocks and the only matter remaining in issue is the name of the lawyer who released the information. This arose as result of the action of Regina lawyer who improperly revealed information from two of his divorce clients with respect to the charges against Stienwand et al. The Crown quite properly disclosed these statements which had been conveyed to the investigating officer, Sgt. Reid. The law is clear that the privilege applies only to the client and his solicitor. It does not extend to third party who learns of the communication. R. v. Kanester 1966 CanLII 530 (NS CA), [1967] C.C.C. 97 (S.C.C.). The information already disclosed is to some extent hearsay and is only marginally relevant. I, therefore, am of the view that it is not necessary to reveal the name of the solicitor and, therefore, unless the Crown intends to call the informant solicitor as a witness, his name is not to be disclosed. Item number 3. In respect to this issue Mr. Neufeld states in part as follows: Memorandum relating to the defence application for disclosure, concerns with respect to the release of his intelligence reports and references to matters and individuals unrelated to matters in issue. Not fruits of this investigation and irrelevant. Disclosure opposed save for an excerpt from paragraph of the memorandum. It notes conversation with material crown witness on matter with respect to which we understand she was questioned. We are unsure if it qualifies as fruits of the investigation but out of abundance of caution it is being disclosed. The excerpt reads as follows: 3.The day after Colleen Galenzoski testified in chief at the Preliminary proceeding regarding these matters, she contacted the writer to determine if she had given any written documentation to myself at the time of her complaints. The following sentence in that same paragraph indicates that there was discussion between the two relating to questions asked by defence counsel and states an opinion of the officer resulting from the same, but there is no further recording of what Ms. Galenzoski may have said or what if anything, Sgt. Reid may have said in response. In my view the contents of this report are marginally relevant and as there is no legal reason why they should not be disclosed, I, therefore, order their production. Item number 10. These matters do not appear to be relevant and, therefore, disclosure need not be made.

See also 108 Sask. R. 87; [1993] T.W.L. QB93357 QB93p186; and [1993] T.W.L. CA93115, CA93p60. The Court of Appeal had ordered the Crown to produce an itemized inventory of the information in its possession to enable the Queen's Bench to review the information the Crown should disclose to the defence. This fiat concerned several documents. The Crown had already disclosed the contents of each of these documents and the only matter remaining in issue was the name of the lawyer who released the information. This arose as a result of the action of a Regina lawyer who had improperly revealed information from two of his divorce clients with respect to the charges against LaPorte et al. The Crown quite properly disclosed these statements which had been conveyed to the investigating officer. HELD: It was not necessary to reveal the name of the solicitor and, therefore, unless the Crown intended to call the informant solicitor as a witness, his name was not to be disclosed.

1993canlii6711.txt

The judge feels that this fiat does not warrant publication. QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2006 SKQB 35 Date: 20060126 Docket: Q.B.G. No. 574/99 Judicial Centre: Battleford BETWEEN: MARK RONALD BAERT, LISA MARIE DAWSON by her Litigation Guardian Mark Ronald Baert, JAMESON JACK BAERT by his Litigation Guardian Mark Ronald Baert and DEVIN FRANK BAERT by his Litigation Guardian Mark Ronald Baert and KENNETH GRAHAM, LLOYDMINSTER DISTRICT HEALTH BOARD, MARILYN MANN, ANN LEER, NURSE JANE DOE, STAFF SALLY ROE #1, STAFF SALLY ROE #2 and RUTH WOOD Counsel: Sandra J. Weber and David D. Risling for the plaintiffs Christine J. Glazer, Q.C. and Michelle J. Ouellette for the defendant Kenneth Graham Gary A. Zabos and Heather J. Laing for the Defendants Lloydminster District Health Board, Marilyn Mann, Ann Leer, Nurse Jane Doe, Staff Sally Roe #1, Staff Sally Roe #2 and Ruth Wood FIAT KRUEGER J. January 26, 2006 [1] There are number of chamber applications brought on behalf of both the plaintiffs and the defendants. They may be summarized as follows: (A) The plaintiffs apply pursuant to Rules 222 and 232 of The Queen’s Bench Rules for:(i) An order compelling the defendant, Kenneth Graham, to respond to written interrogatories;(ii) an order permitting further oral examination for discovery of Kenneth Graham on issues arising from his responses to the written interrogatories;(iii) an order directing Kenneth Graham to provide a copy of the report of neurologist Dr. Vrbancic to counsel for the plaintiffs. Application (A)(iii) has been adjourned sine die. It and all other applications that have been adjourned are to be brought back by the parties contacting the Local Registrar and arranging for chamber date before Krueger J. (B) The plaintiffs also apply pursuant to Rules 215, 222 and 232 of The Queen’s Bench Rules for: (i) An order requiring the Lloydminster District Health Board to provide the investigations, communications, documents, information or reports claimed as privileged under s. 35.1 of The Saskatchewan Evidence Act, R.S.S. 1978, c. S-16; At the hearing this application was limited to the review conducted by Lois Sonnega and the formal review initiated by Saskatchewan Health. It too was adjourned sine die. (ii) an order compelling the said defendant Board to provide the plaintiffs with the identity of the roommate of the plaintiff, Lisa Dawson, in her hospital room on July 14, 1999, after undergoing tubal ligation surgery; Due to confidentiality requirements the Board could not provide this information without court order. During the hearing the requested order was granted. (iii) an order compelling the said defendant Board to respond to undertaking number 32 of Gayle Ann Almond, an officer of the defendant Board, during an examination for discovery of March 8, 2001. This application was withdrawn at the hearing. (C) The defendant, Kenneth Graham, applies for: (i) An order pursuant to Rule 173 of The Queen’s Bench Rules striking out para. 33(b) of the plaintiffs’ Amended Amended Statement of Claim; This application was adjourned sine die. (ii) an order pursuant to Rule 173 of The Queen’s Bench Rules that paras. 21, 31(f) and (g), 32(i) and (j) and 33(e) and (f) of the plaintiffs’ Amended Amended Statement of Claim be struck [These paras. deal with a claim for aggravated and punitive or exemplary damages.]; (iii) in the alternative, an order pursuant to Rule 164(4)of The Queen’s Bench Rules requiring the plaintiffs to provide particulars of their claim for aggravated and punitive damages as set out in the Demand for Particulars dated November 25, 2005; (iv) an order pursuant to Rule 231 of The Queen’s Bench Rules requiring the plaintiffs to respond to undertakings number 37, 42, 43, 46 and 52 given at the examination for discovery of the plaintiff, Mark Baert; (v) an order entitling the defendant, Kenneth Graham, to further examine the plaintiff, Mark Baert, on responses given to the undertakings; (vi) an order that failing the providing of responses the plaintiffs’ action be dismissed without further application. (D) The defendants, Lloydminster District Health Board, Marilyn Mann, Ann Leer, Nurse Jane Doe, Staff Sally Roe #1, Staff Sally Roe #2 and Ruth Wood, apply for: (i) An order pursuant to Rule 164 of The Queen’s Bench Rules requiring the plaintiffs to provide further and better particulars of their claim as set out in the Demand for Particulars dated November 28, 2005; This is the same application as is made by Kenneth Graham pursuant to (C)(iii). (ii) an order pursuant to Rule 231 of The Queen’s Bench Rules requiring the plaintiffs to provide better responses to undertakings number 13, 14, 16, 17 and 76; For the most part these responses have been provided. (iii) an order entitling the defendant applicants to further examine the plaintiff, Mark Baert, on particulars and undertaking responses given; No longer applicable. (iv) an order that failing the providing of better particulars and responses the plaintiffs’ action is to be dismissed with costs; No longer applicable. (v) an order pursuant to Rule 173 of The Queen’s Bench Rules striking the claims of the infant plaintiffs, Jameson Jack Baert and Devin Frank Baert; This application was adjourned sine die. (vi) separate application pursuant to Rule 173 of The Queen’s Bench Rules that paras. 21, 31(f) and (g), 32(i) and (j) and 33(e) and (f) of the plaintiffs’ Amended Amended Statement of Claim be struck. These paragraphs relate to aggravated and punitive or exemplary damages and is the same application as has been made by Kenneth Graham pursuant to para. (C)(ii). FACTUAL BACKGROUND [2] The plaintiff, Lisa Dawson, underwent tubal ligation operation at the Saskatchewan Lloydminster Hospital performed by the defendant, Dr. Kenneth Graham, on July 14, 1999. She was discharged from the hospital later the same day. Early on July 16, 1999, Lisa Dawson was taken back to the Lloydminster Hospital where she underwent emergency surgery to repair two millimeter bowel perforation. During the partial bowel resection operation she suffered cardiac arrest. The second surgery was also performed by Dr. Graham. [3] Upon revival, Lisa Dawson was airlifted to the Royal Alexandra Hospital in Edmonton. Surgical procedures there included the amputation of all four of her limbs. She also suffered brain and organ damage and is currently living in long-term care facility in Saskatoon. [4] Mark Baert and Lisa Dawson, together with their two children, Jameson Jack Baert and Devin Frank Baert, are the plaintiffs in this action. They allege failure by the defendants to meet the required standard of care in conducting the laparoscopic tubal ligation surgery on the plaintiff, Lisa Dawson, and during subsequent care and treatment to repair puncture to the bowel. Their allegations of negligence or breach of duty are set out primarily in paras. 25(a) to 25(uu) of their Amended Amended Statement of Claim. In addition to claim by each plaintiff for pecuniary and non-pecuniary damages resulting from negligence and/or breach of duty, each claims aggravated damages and punitive or exemplary damages. pretrial settlement conference has been scheduled for April 28, 2006. [5] The applications shall be dealt with in the order raised herein, starting with the application by the plaintiffs relating to the defendant, Dr. Graham. Where any application has been adjourned sine die it will not be further commented on and where more than one of the defendants raised the same issues in separate applications those applications will be dealt with only once. Should Dr. Graham be compelled to provide full and complete responses to written interrogatories and, if necessary, be orally examined on his responses? [6] On May 6, 2005, counsel for the plaintiff forwarded to counsel for Dr. Graham the following interrogatory questions: 1. Since the surgery on Lisa Baert (Dawson) in July 1999, has your performance, including your skills or technique, of laparoscopic gynecological surgery been reviewed by: a. Quality of Medical Performance Committee of any College of Physicians and Surgeons? b. By some other Committee, or other method, by any College of Physicians and Surgeons? c. Any other body, such as Health Authority, for example. 2. If your performance of laparoscopic gynecological surgery has been reviewed by any of the bodies listed above, advise whether the review related to the puncture of bowel in the performance of the laparoscopic gynecological surgery? If it did relate to the puncture of bowel, advise whether you have had other occasions (excluding the case of Lisa Baert) where you have punctured bowel during the course of laparoscopic gynecological surgery. If so, provide particulars of those occasions including the patient name, type of surgery and date. 3. From any reviews that have been undertaken of your performance of laparoscopic gynecological surgeries, advise if there have been any criticisms of your performance of laparoscopic gynecological surgeries or criticism of your judgment in proceeding with surgeries. If so, provide particulars of those criticisms. 4. Confirm at what level you are qualified to perform laparoscopic gynecological surgery. Explain the difference between Level 1, Level and Level laparoscopic skills. 5. Since the surgery performed on Lisa Baert (Dawson) on July 14, 1999, have you voluntarily or otherwise discontinued performance of laparoscopic gynecological surgery? 6. If you have voluntarily or otherwise discontinued performance of laparoscopic gynecological surgery since July 14, 1999, provide the reasons for the discontinuance as well as the time period for which you discontinued the performance of laparoscopic gynecological surgery. 7. Since the surgery performed on Lisa Baert (Dawson) on July 14, 1999, have you voluntarily or otherwise taken retraining or upgrading with respect to your performance of laparoscopic gynecological surgery? 8. If you have voluntarily or otherwise taken retraining or upgrading with respect to your performance of laparoscopic gynecological surgery, provide particulars of the retraining or upgrading, the time period for the retraining or upgrading and provide the results of the retraining or upgrading. If there are any written documents related to the retraining or upgrading, provide copies. [7] In response dated July 18, 2005, counsel for Dr. Graham advised that Dr. Graham, who by then had moved to British Columbia, continues to be licenced as an obstetrician and gynecologist in good standing and is qualified to perform Level laparoscopy without restrictions. He suffered heart attack and has been on medical leave from his practice since May, 2003. The response went on to indicate that Dr. Graham’s skills or technique of laparoscopic surgery have not been reviewed by any professional body as result of the surgery performed on Lisa Dawson. Counsel would not agree to reopening the examination for discovery of Dr. Graham. [8] It is the position of the plaintiffs that review of the skills, technique, judgment and competency of the defendant, Dr. Graham, in performing laparoscopic gynecological surgery is relevant, whether in relation to the plaintiff, Lisa Dawson, or anyone else. The examination for discovery of Dr. Graham took place on December 1, 2000. The Amended Amended Statement of Claim issued on February 28, 2001. Undertaking surgical procedures which Dr. Graham did not have adequate knowledge, skill and experience to perform (para. 25(k)) was alleged in the Amended Amended Statement of Claim. The “broad relevance” test was urged by counsel for the plaintiffs. [9] The position of the defendant, Dr. Graham, is that except in special circumstances party to an action is not entitled to re-examine for discovery an adverse party. See Kelly v. Burns Estate (1999), 1999 CanLII 3141 (NS SC), 176 N.S.R. (2d) 398 (N.S.S.C.); Hosie v. Hosie, 1974 CanLII 904 (SK QB), [1975] W.W.R. 597 (Sask. Q.B.). Further the defendant, Dr. Graham, argues that the quality assurance reviews where complications occurred are all subsequent to the events of this case and irrelevant. In any event, Dr. Graham has already been extensively examined relating to his training, experience, techniques and procedures. [10] Further, if any of the interrogatories on which the plaintiffs wish to re-examine are relevant, it was argued, both British Columbia and Saskatchewan legislation prohibit the use of information derived from investigations/reviews conducted by hospital board or the College of Physicians and Surgeons. The privilege, it was suggested, is absolute and cannot be waived. Further it was argued that the information sought falls within the Wigmore principle of common law privilege. [11] In the response dated July 18, 2005, to the plaintiffs’ list of interrogatories, the following information was provided or can be surmised: (a) There has been no review of Dr. Graham’s skills or techniques of laparoscopic gynecological surgery by any professional body relating to Lisa Dawson’s surgery. There may have been reviews relating to other patients. (b) There have been no competency or disciplinary proceedings taken against Dr. Graham. (c) Dr. Graham remains qualified to perform laparoscopic gynecological surgery at Level 1. What Level qualification entails is easily ascertainable from any physician who performs laparoscopic surgery. (d) Since July 14, 1999, Dr. Graham has discontinued performing laparoscopic gynecological surgery due to heart attack. (e) Dr. Graham had been on medical leave of absence for over two years at the time of responding on July 18, 2005. At that time he remained qualified at Level 1. Any training or upgrading could possibly relate solely to prolonged period of absence from the medical practice. In those circumstances, the answer to questions and may not be particularly relevant to these proceedings. [12] Rule 222 of The Queen’s Bench Rules allows party to proceeding, without order, to examine for discovery, before trial, an adverse party touching matters in issue. Generally broad scope of relevance as to matters in issue is granted on examinations for discovery. See Cominco Ltd. v. Phillips Cables Ltd. [1987] S.J. No. 143 (Sask. C.A.). [13] It is the position of the plaintiffs that they require particulars of reviews and inquiries in order to determine the level of skill of Dr. Graham in performing laparoscopic gynecological surgery. His performances both before and after the surgery performed on the plaintiff, Lisa Dawson, they claim, are relevant to that issue. The plaintiffs maintain that they are not seeking documents relating to the inquiries or reviews, only factual information. agree that the skills, technique, judgment and competency of Dr. Graham are relevant to the issues in this action, but only to the extent that they relate to breach of duty or standard of care in performing the laparoscopic surgery on the plaintiff, Lisa Dawson. [14] Counsel for Dr. Graham argue that, although “blind” procedure, laparoscopic tubal ligation surgery is common and uncomplicated procedure. Evidence of experts in the field will be called at the trial to testify as to the competency of Dr. Graham in meeting the required standard of care when performing the operation on the plaintiff, Lisa Dawson. The plaintiffs are, it is suggested, seeking particulars of quality assurance review in case not involving the plaintiff, Lisa Dawson. There is no authority for permitting that line of inquiry, either as similar fact evidence or as an exception to privilege. [15] am satisfied that if the plaintiffs are in effect seeking to obtain particulars of similar fact circumstances, the prejudicial effect of such evidence far outweighs any probative value. See Williams v. Wai-Ping, [2005] O.J. No. 1940 (Ont. S.C.). At the same time s. 60(2) of The Medical Profession Act, 1981, R.S.S. 1980-81, c. M-10.1, protects against disclosure of information or evidence given during proceedings conducted by the College of Physicians and Surgeons for Saskatchewan. Likewise, s. 35.1 of The Saskatchewan Evidence Act, R.S.S. 1978, c. S-16, grants similar privilege relating to quality assurance committees that have evaluated care given to patients in hospitals. Kerr v. Saskatchewan (Minister of Health), 1994 CanLII 4586 (SK CA), [1994] W.W.R. 153 (Sask. C.A.), appears to make that privilege absolute. Other jurisdictions have similar legislation. [16] Insofar as the interrogatories relate to patients, surgical procedures or proceedings not related to the subject litigation, they are either not relevant or privileged. Since the Statement of Claim has twice been amended I am satisfied that special circumstances exist permitting further examination for discovery and/or interrogatories. Wide latitude is permitted at this stage of the proceedings. The trial judge will be in the best position to determine the admissibility of information obtained in relation to Dr. Graham’s skills, technique, judgment and competency. [17] The plaintiffs are entitled to responses, if not already provided, from Dr. Graham in relation to, but limited to, the following: (a) The approximate number of occasions that Dr. Graham performed laparoscopic tubal ligation or similar gynecological laparoscopic procedures on patients prior to that performed on the plaintiff, Lisa Dawson; (b) whether bowel puncture occurred during any of those procedures, and if so, on how many occasions; (c) whether punctured bowel during those laparoscopic gynecological procedures prompted quality assurance review by the College of Physicians and Surgeons of the province where the procedure was conducted or by any other body; (d) when Dr. Graham obtained his Level qualification to perform laparoscopic gynecological procedures; (e) whether Dr. Graham has taken any retraining or upgrading since obtaining his Level qualification and, if so, the dates of such retraining or upgrading and the nature of the courses attended. [18] The defendant, Dr. Graham, should be able to provide these responses in writing. If elaboration is required, the plaintiffs may at their own initial expense re-examine Dr. Graham. Such re-examination should, however, not include or involve inquiries as to other patient names, hospitals involved or details of the surgical procedures or surgeries performed. Counsel may return to the Court for further clarification if required. Should paragraphs 21, 31(f) and (g), 32(i) and (j) and 33 (e) and (f) be struck as failing to disclose reasonable cause of action or because they are scandalous, frivolous or vexatious? [19] The above paragraphs of the Amended Amended Statement of Claim seek aggravated and punitive or exemplary damages from the defendants by all of the plaintiffs. Punitive and exemplary damages are the same and will be referred to herein as “punitive” damages. It is the position of the defendants that even with particulars of aggravated and punitive damages as provided by the plaintiffs there is no basis for claim for either of those forms of damage. The plaintiffs point in particular to para. 25 of the Amended Amended Statement of Claim to support their argument that it is open to the court to find aggravated and punitive damages particularly in the case of Dr. Graham. [20] The parties are in agreement that for the impugned paragraphs to be struck as offending Rule 173(a) of The Queen’s Bench Rules it must be “plain and obvious” that those paragraphs disclose no reasonable cause of action. The court is limited to looking at the claim and particulars provided, if any, when deciding whether to strike paragraphs pursuant to Rule 173(a). The test for striking paragraphs pursuant to Rule 173(c) on the basis that they are scandalous, frivolous or vexatious is different. There the court embarks upon an assessment of the merits of the claim and the motives of the plaintiff in making the claim. See Sagon v. Royal Bank of Canada et al (1992), 1992 CanLII 8287 (SK CA), 105 Sask. R. 133 at para. [21] In Turner v. Bederman, (1996) Carswell Ont. 1766 (Ont. Ct. of Justice), aggravated damages was described as “the mental aspect of damages caused by defendant granted to compensate for additional mental suffering caused by the defendant’s objectionable conduct.” In Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] S.C.R. 1130, the Supreme Court of Canada described aggravated damages as those awarded in circumstances where the defendant’s conduct has been particularly high-handed or oppressive; conduct that increases the plaintiff’s humiliation and anxiety. In order to award aggravated damages there must be finding of conduct motivated by malice. At para. 183 of Hill, supra, Cory J. wrote: There will of necessity be some overlapping of the factors to be considered when aggravated damages are assessed. This can be seen from further reference to the Gatley [on Libel and Slander, 8th Ed.] text at pp. 593-94 where this appears: 1452. Aggravated damages. The conduct of the defendant, his conduct of the case, and his state of mind are thus all matters which the plaintiff may rely on as aggravating the damages. “Moreover, it is very well established that in cases where the damages are at large the jury (or the judge if the award is left to him) can take into account the motives and conduct of the defendant where they aggravate the injury done to the plaintiff. There may be malevolence or spite or the manner of committing the wrong may be such as to injure the plaintiff’s proper feelings of dignity and pride. These are matters which the jury can take into account in assessing the appropriate compensation.” “In awarding ‘aggravated damages’ the natural indignation of the court at the injury inflicted on the plaintiff is perfectly legitimate motive in making generous, rather than more moderate award to provide an adequate solatium...that is because the injury to the plaintiff is actually greater, and, as the result of the conduct exciting the indignation, demands more generous solatium.” Aggravated damages conduct as described by Cory J. is not limited to libel and slander situations. Such conduct may apply to any tort situation. [23] Punitive damages are awarded in situations where the defendant’s misconduct is so malicious, oppressive and high-handed that it offends the court’s sense of decency. Such damages are only awarded where the combined award of general and aggravated damages are insufficient to achieve punishment and deterrence. Such damages are likened to fine. See Hill, supra, at para. 196. The defendant’s misconduct does not have to be an independent actionable wrong to attract punitive damages. The breach of duty owed that is flagrant and deliberate misconduct will attract an award of punitive damages: See Vorvis v. Insurance Corp. of British Columbia, 1989 CanLII 93 (SCC), [1989] S.C.R. 1085 at para. 25. [24] The defendants take the position that “mere” negligence is not enough to justify an award of aggravated or punitive damages. am unable to subscribe to that criteria. It is not the degree of negligence, i.e. gross, but the mental element that accompanies the negligence that gives rise to claim for aggravated or punitive damages. [25] The plaintiffs point to paras. 25(a) and 25(b) of the Amended Amended Statement of Claim where it is alleged that Dr. Graham failed to fully or reasonably inform Lisa Dawson of the risks associated with the proposed laparoscopic surgery, leading her to believe that there were no risks involved. Such negligence, if proven, could lead trier of fact to conclude that both aggravated and punitive damages are warranted as against Dr. Graham. [26] It would be somewhat presumptuous at this stage of the proceedings to conclude that it is plain and obvious pursuant to Rule 173(a) of The Queen’s Bench Rules that the plaintiffs do not have a cause of action for aggravated or punitive damages against Dr. Graham. Nor can it be said when assessing the merits of the considerable allegations that have been made that claim for aggravated or punitive damages is scandalous, frivolous or vexatious pursuant to Rule 173(c). In my view, humiliation, indignity, degradation or shame could be the consequence of the wrongful behaviour pleaded. However, if those emotions must be specifically pleaded, the plaintiffs can apply for further amendment of their claim. [27] The defendant, Lloydminster District Health Board, likely cannot be held vicariously liable for any aggravated or punitive damages assessed against Dr. Graham as result of assault and battery by him. The Board may be held vicariously liable for acts of negligence by its employees. It is alleged that the defendants, Marilyn Mann, Ann Leer, Nurse Jane Doe, Staff Sally Roe #1, Staff Sally Roe #2 and Ruth Wood, negligently advised the plaintiff, Lisa Dawson, regarding her care both before and after her discharge from the hospital (paras. 25(mm) to (uu) of the Amended Amended Statement of Claim). Such advice could be found by trier of fact to be “malicious behaviour”(McBeth v. Boldt (1998), 1998 CanLII 7051 (BC CA), 164 D.L.R. (4th) 247 para. 21 (B.C.C.A.)) or reprehensible conduct that attracts punitive damages. See Wilcott v. Ellis (2001), 2001 SKQB 219 (CanLII), 206 Sask. R. 219 (Q.B.). [28] Similar to the situation with Dr. Graham, am unable to conclude that it is clear and obvious that the aggravated and punitive damage claims will fail as against the remaining defendants. Further the allegations that could lead to such damages are not scandalous, frivolous or vexatious. [29] All of the defendants in this case are health care givers. It will be difficult to prove that any of them acted in bad faith, with deliberate or reckless disregard for the plaintiff, Lisa Dawson, or with extreme or malicious behaviour causing additional suffering or deserving of punishment. also agree that the jurisprudence in medical malpractice cases does not favour granting aggravated and punitive damages. That having been said, it is the evidence presented at trial and not the allegations contained in the pleadings that will determine the mental elements that give rise to claim of both aggravated and punitive damages. The result is that paras. 21, 31(f) and (g), 32 (i) and (j) and 33(e) and (f) will not be struck at this time. Should the plaintiffs be required to respond to undertakings number 37, 42, 43, 46 and 52 given during the examination for discovery of Mark Baert? [30] The obligation of party to comply with undertakings given at an examination for discovery is contained in Rule 231 of The Queen’s Bench Rules: Anyone refusing or neglecting to attend at the time and place appointed for his examination or refusing to be sworn or to answer any lawful question put to him by any party entitled to do so or his counsel or solicitor or having undertaken at the examination to answer at later date any lawful question put to him fails to do so within reasonable time after the examination shall be deemed guilty of contempt of court and proceedings may be taken forthwith to commit him for contempt. He shall be liable if plaintiff to have his action dismissed, and if defendant to have his defence, if any, struck out and to be placed in the same position as if he had not defended. [Emphasis added] [31] Undertaking number 37 is to advise of any facts on which the plaintiffs may rely in the future to establish claim of incompetency against Dr. Graham (taken under advisement). In Cominco Ltd., supra, Cameron J.A. of the Saskatchewan Court of Appeal, writing for the court, stated at para. 12: As has been said time and again, the purpose of the rule [222] is twofold: (i) to allow the parties to ascertain if the plaintiff has good cause of action or the defendant such defence as would render further litigation useless [Citations omitted]; and (ii) to enable the parties to secure from one another such admissions as will advance one’s own cause or weaken that of one’s opponent [Citations omitted]. [32] To the extent that the defendant, Dr. Graham, has been required to respond to interrogatories relating to his skill and training and to the extent that any further cross-examination may show defects in his competency, undertaking number 37 must be answered. If the plaintiffs have further or other facts, those facts must be provided. Failure to provide further facts may prevent the defendants at trial from relying on any facts not disclosed. [33] Undertaking number 42 is to produce particulars of the first trust fund which started with the ICU doctors at the Royal Alexandra Hospital (taken under advisement). Undertaking number 52 is related. It is an undertaking to produce bank records relating to Lisa Dawson’s account and any accounting provided to the public trustee or the court in relation to the plaintiff Mark Baert’s position as trustee for Lisa Dawson (taken under advisement). The defendants are of the view that if trust funds were created and used for medical or rehabilitative equipment and services, double recovery may result. It is the position of the plaintiffs that trust funds that are gifts from the public cannot be brought into account in determining damages. See Herbert v.Misuga, [1994] S.J. No. 35 (Sask. C.A.); Dawson v. Sawatzky 1945 CanLII 185 (SK CA), [1946], D.L.R. 476 (Sask. C.A.); Myers and the City of Guelph v. Hoffman, 1955 CanLII 161 (ON SC), [1955] O.R. 965-976 (Ont. H.C.). [34] Clearly the defendants are not entitled to know or to take advantage of or receive any credit for or accounting relating to trust funds gratuitously set up for the plaintiff, Lisa Dawson. No response to undertaking number 42 need be made. Undertaking number 52 is in somewhat different position. To the extent that funds contained in trust account administered by the plaintiff, Mark Baert, for Lisa Dawson to which there is claim of subrogation on behalf of the Minister of Health for Saskatchewan or the Minister of Health for Alberta (para. 31(e) of the Amended Amended Statement of Claim) an accounting is required. An accounting of funds held in trust by the plaintiff, Mark Baert, for the plaintiff, Lisa Dawson, may also impact on the claim by him of loss of income as a result of being required to be in attendance to provide care for Lisa Dawson (para. 27(c) of the Amended Amended Statement of Claim). In the final analysis such an accounting may not provide any usable information, but at this stage of the proceedings is justified. An accounting by the defendant, Mark Baert, pursuant to undertaking number 52 must be provided. [35] Undertaking number 43 is to provide details of the allegations made against the plaintiff, Mark Baert, by Kathy (taken under advisement). This undertaking is related to undertaking number 46, which is to produce copies of the information, summons, and disclosure documents in relation to the assault charge against the plaintiff, Mark Baert. The defendants argue that the nature of the assault may have been at least partially responsible for counselling required by the infant plaintiffs. The plaintiff, Mark Baert, advised through counsel that the children were not present during the assault and that as result of the charge he was granted conditional discharge. The children were not, it was suggested, affected by this incident. [36] The information (summons) filed is public document and can be obtained by the defendants from the relevant court house. Further responses to undertakings number 43 and 46 would, in my view, serve no useful purpose and are not ordered. All of the defendants are entitled, at their initial expense, to further examine for discovery the plaintiff, Mark Baert, on the responses ordered to be given to his undertakings. [37] Where responses are required by party in these applications, the responses shall be provided within 30 days of the date of this fiat. Further examinations for discovery arising out of those responses shall be conducted within 30 days of receipt of the responses unless otherwise agreed to by the parties. number of applications have been adjourned. Those applications may be brought back; if so, the matter of costs can then be spoken to. If no further matters are brought back to the court, costs may be spoken to at the request of any party. J. D. K. KRUEGER

FIAT: The plaintiffs apply for an order requiring the defendant doctor to answer the interrogatories and attend a further examination for discovery. The defendants seek an order striking portions of the statement of claim, and requiring the plaintiff to provide answers to undertakings given at his examination for discovery. HELD: 1) Rule 222 of The Queen's Bench Rules allows a party to a proceeding without order to examine for discovery, before trial, an adverse party touching matters at issue. If the plaintiffs are in effect seeking to obtain particulars of similar fact circumstances, the prejudicial effect of such evidence far outweighs any prohibitive value. At the same time, s. 60(2) of The Medical Profession Act, 1981 protects against disclosure of information or evidence given during proceedings conducted by the College of Physicians and Surgeons. Likewise, s. 35.1 of The Saskatchewan Medical Evidence Act grants a similar privilege relating to quality assurance committees that have evaluated care given to patients in hospitals. Insofar as the interrogatories relate to patients, surgical procedures or proceedings not related to the subject litigation, they are either not relevant or privileged. Since the statement of claim has twice been amended, the court was satisfied that special circumstances exist permitting further examination for discovery and/or interrogatories. Wide latitude is permitted at this stage of the proceedings. The trial judge will be in the best position to determine the admissibility of information obtained in relation to the doctor's skills, techniques, judgment and competency. The plaintiffs are entitled to responses to specific interrogatories. If further elaboration is required, the plaintiffs may at their own expense re-examine the doctor. Such examination should not include inquiries as to other patient names, hospitals involved or details of the surgical procedures or surgeries performed. 2) Pursuant to Rule 173(a) of the Rules of Court it must be plain and obvious that the paragraphs of the statement of claim disclose no reasonable cause of action. Punitive damages are awarded in situations where the defendant's misconduct is so malicious, oppressive and high-handed that it offends the court's sense of decency. Such damages are only awarded where the combined award of general and aggravated damages are insufficient to achieve punishment and deterrence. The defendant's misconduct does not have to be an independent actionable wrong to attract punitive damages. The breach of a duty that is owed will attract an award of punitive damages. It is not the degree of negligence but the mental element that accompanies the negligence that give rise to a claim for aggravated or punitive damages. The amended statement of claim alleges the doctor failed to inform one of the plaintiff of the risks associated with the surgery leading her to believe there were no risks involved. Such negligence, if proven, could lead a trier of fact to conclude that both aggravated and punitive damages are warranted against this doctor. It would be somewhat presumptuous at this stage to conclude that it is plain and obvious that the plaintiffs do not have a cause of action for aggravated or punitive damages against the doctor. In the courts view humiliation, indignity, degradation or shame could be the consequences of the wrongful behaviour pleaded. If those emotions must be specifically pleaded, the plaintiffs can apply for a further amendment of their claim. 3) The obligations of a party to comply with undertakings given at an examination for discovery are contained in Rule 231 of The Queen's Bench Rules. To the extent that the doctor has been required to respond to interrogatories relating to his skill and training and to the extent that any further cross-examination may show defects in his competency, the plaintiff's undertaking must be answered. If the plaintiffs have further or other facts, those facts must be provided. 4) The defendants are not entitled to know or to take advantage of or receive any credit for or accounting relating to trust funds gratuitously set up for the plaintiff. However, an accounting regarding the bank records and the records produced for the Public Trustee by the Trustee for the trust fund will be complied with as it may impact on the claim by him for loss of income as a result of being required to be in attendance to provide care for the plaintiff.

d_2006skqb35.txt

QUEEN’S BENCH FOR SASKATCHEWAN 2008 SKQB 146 Date: 2008 04 02 Docket: DIV. No. 000454 of 1998 Judicial Centre: Humboldt BETWEEN: SHARON STRUEBY and KIRK STRUEBY Counsel: Richard W. Danyliuk, Q.C. for the petitioner David J. Flett for the respondent FIAT GABRIELSON J. April 2, 2008 INTRODUCTION [1] On September 19, 2007, the respondent Kirk Strueby (“Mr. Strueby”) filed an application for an order varying child support order granted by Justice Y. Wilkinson on May 10, 1999 (which order was subsequently confirmed by the judgment of Justice Dielschneider dated February 28, 2000, which therefore becomes the order sought to be varied). The relief sought was as follows: (a) declaration that Jill Strueby, born December 16, 1981 and Luke Strueby born May 29, 1986, are no longer children of the marriage within the meaning of the Divorce Act; (b) As result of the two said children no longer being children of the marriage within the meaning of the Divorce Act, that no further child support is owing by the applicant for these children as of January 1, 2007; (c) An Order eliminating the Applicant’s child support arrears as at the time of the application in the amount of $17,400.00, for the period of March 2003 to September 2007; (d) An Order that the Respondent’s obligation to pay proportional amount of post secondary school expenses for the child of the marriage, Keegan Strueby, born November 13, 1989, be fixed based upon the applicant’s income of $44,781.00 and the Petitioner’s income; and (e) An Order that any maintenance for Keegan Strueby be paid directly to Keegan. [2] The parties were married November 1, 1980. They separated on or about April 11, 1994. Three children were born of the marriage: Jill Strueby (“Jill”), born December 16, 1981, Luke Strueby (“Luke”), born May 29, 1986, and Keegan Strueby (“Keegan”), born November 13, 1989. The petitioner, Sharon Strueby (“Ms. Strueby”), filed petition for divorce on November 24, 1998, in which she sought custody of the children and child support in accordance with the Federal Child Support Guidelines [Divorce Act Regulations, SOR/97-175]. Pursuant to consent judgment dated February 28, 2000, in which Ms. Strueby was granted custody of the children, Mr. Strueby, was found to have gross annual income of $26,400, and based upon this income was ordered to pay to Ms. Strueby the sum of $500 per month for child support as well as an additional sum of $100 per month for child care expenses and extracurricular activity expenses. There was also to be set-off of $100 per month in respect to the sum payable for the extracurricular activities until such time as the sum of $5,000 payable by Ms. Strueby to Mr. Strueby in respect to the transfer of the matrimonial home from Mr. Strueby to Ms. Strueby had been achieved. [3] On or about August 1, 2007, Ms. Strueby registered the judgment with maintenance enforcement. The affidavit filed by Ms. Strueby at that time indicated that arrears in the amount of $17,400 were owing as of August 20, 2007 in respect to the maintenance order of February 28, 2000. [4] In the affidavit filed by Mr. Strueby at the time of this application, he stated that all three children had attended university once they had reached the age of majority. He indicated that while he had initially continued to pay the child support provided for in the judgment, he had reduced the amount of child support gradually as they became independent and moved out on their own, although even then he continued to support them financially. [5] In her reply affidavit, Ms. Strueby took issue with the details provided in Mr. Strueby’s affidavit concerning the child support he had paid and his assertion that his support obligations were reduced simply because the children had reached the age of majority. In her affidavit, Ms. Strueby outlined the children’s educational performance and submitted that they remained children within the meaning of the Divorce Act, R.S.C. 1985, c. 3 (2d Supp.), so long as they were attending university in some fashion. Ms. Strueby also indicated that she had not agreed to Mr. Strueby’s unilateral reduction of the child support payments and therefore opposed any variation of the arrears. [6] In this case, the parties agree that given the age of the children, and the change in the amount of Mr. Strueby’s income, that there has been a change in circumstances sufficient to allow a review of the existing child support order. [7] Justice Dielschneider’s consent judgment of February 28, 2000 provided that child support payments would continue “until such time as the children are no longer children within the meaning of the Divorce Act”. Section of the Divorce Act defines the term child and provides as follows: 2.(1) In this Act, “child of the marriage” means child of two spouses or former spouses who, at the material time, (a) is under the age of majority and has not withdrawn from their charge, or (b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life. [8] In the case of Bowman v. Bowman, 2005 SKQB (CanLII), 260 Sask. R. 312, Justice Ryan-Froslie reviewed the law concerning the payment of child support in respect to child over the age of majority but attending university. She stated at para. [9] It is well-settled that full time attendance in post-secondary education program may result in child over the age of majority qualifying as “child” within the meaning of the Divorce Act. See: Zaba v. Bradley (1996), 1996 CanLII 4930 (SK CA), 137 Sask. R. 295; 107 W.A.C. 295 (C.A.). Neither the case law nor the Divorce Act specifies an academic achievement level where support automatically terminates. Each case must be considered on its own facts. The guiding principle is reasonableness. See: Ivany v. Ivany (1996), 1996 CanLII 6619 (NL SC), 145 Nfld. P.E.I.R. 106; 453 A.P.R. 106; 24 R.F.L. (4th) 289 (N.F.S.C.). [10] Generally, parents will remain financially responsible for bona fide adult student until the child has obtained degree or certificate that equips him or her for entry level employment in an appropriate field within reasonable period of time. The length of time, level of education or number of degrees required to be supported by the parent will vary depending on the circumstances of each case. See: Jamieson v. Jamieson (1995), 1995 CanLII 6227 (NB CA), 163 N.B.R. (2d) 178; 419 A.P.R. 178; 14 R.F.L. (4th) 354 (N.B.C.A.); Smith (J.) v. Smith (J.C.) (1990), 1990 CanLII 8083 (MB CA), 66 Man. R. (2d) 181; 71 D.L.R. (4th) 612; 27 R.F.L. (3d) 32 (C.A.); Martell v. Height (1994), 1994 CanLII 4145 (NS CA), 130 N.S.R. (2d) 318; 367 A.P.R. 318; R.F.L. (4th) 104 (C.A.); and McGregor v. McGregor (1994), 1994 CanLII 5242 (NB CA), 148 N.B.R. (2d) 176; 378 A.P.R. 176; R.F.L. (4th) 343 (C.A.). The Saskatchewan Court of Appeal in Zaba, supra, set out number of factors court should consider in determining whether child attending post-secondary education remains child within the meaning of the Divorce Act. Those factors include: (i) Whether the child is eligible for student loans or other financial assistance; (ii) Whether the child’s career plans are reasonable; (iii) The ability of the child to contribute to his or her own support; (iv) The parental plans for the child’s education, particularly those made during cohabitation; (v) Whether the child unilaterally terminated the relationship with the payor; and (vi) Whether the child might reasonably have expected assistance if the marriage had not broken down. Other factors courts have considered are the age of the children involved, the child’s ability to secure employment at the end of any course of study, whether the child is “expeditiously” pursuing their educational goals, whether the child”s academic pursuits are commensurate with their ability and whether the child is full or part time student. Justice Zuker of the Ontario Court of Justice provided comprehensive review of the law in Kusnir v. Kusnir (2001), 2001 CanLII 26415 (ON CJ), 21 R.F.L. (5th) 90 (Ont. C.J.). [9] Section 3(2) of the Guidelines addresses the amount payable in respect to child support assuming that the child is of the age of majority or older. It provides as follows: 3(2) Unless otherwise provided under these Guidelines, where child to whom child support order relates is the age of majority or over, the amount of the child support order is (a) the amount determined by applying these Guidelines as if the child were under the age of majority; or (b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the conditions, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child. [10] The Guidelines also deal with expenses for secondary education and confirm that such expenses may be part of the child support order. Section of the Guidelines provides as follows: 7(1) In child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interest and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation; (e) expenses for post-secondary education. [11] In the case of Rebenchuk v. Rebenchuk, 2007 MBCA 22 (CanLII), 279 D.L.R. (4th) 448, the Manitoba Court of Appeal suggested three-step process in dealing with support orders for children who have reached the age of majority. The court stated at para. [23] It can now be safety stated that the following three steps need to be addressed in circumstances such as those before us: Step 1: Is the person for whom support is sought “child the marriage”? Step 2: Is the table amount in the Guidelines “inappropriate”? If not, then the Guidelines amount should be awarded. Step 3: If the answer to Step is “yes”, what level of support is “appropriate”? [12] parent seeking to uphold support order once the child has reached the age of majority has the onus of proving that the child remains child of the marriage within the meaning of s. 2(1) of the Act and also as to the appropriate amount of support even if the child remains child of the marriage See Duncan v. Duncan (1989), 1989 CanLII 4502 (SK QB), 74 Sask. R. 100, 18 R.F.L. (3d) 46 (Q.B.); Whitton v. Whitton (1989), 21 R.F.L. (3d) 261 (Ont. C.A.); and Harder v. Harder, 2003 SKQB 286 (CanLII), 41 R.F.L. (5th) 69. ANALYSIS Step Do the children remain children of the marriage within the meaning of the Divorce Act? [13] Although initially the parties were at odds concerning all three children, by the time of their latest submissions, some consensus had been reached regarding two of the children. The parties are in agreement that Jill, now 26 years of age and on her own, is no longer a child of the marriage within the meaning of the Divorce Act. The parties also agree that Luke, now 21, is not at the present time a child of the marriage, but could once again become a child of the marriage if he attends university beginning in the fall of 2008 as he intends. The parties agree that the application for child support concerning Luke should be adjourned until November 1, 2008, at which time Luke’s situation will be further examined to determine whether he is attending university and has once again become child of the marriage and what level of support, if any, is required for him. The parties are also in agreement that the child, Keegan, now 18, remains a child of the marriage within the meaning of the Divorce Act by virtue of the fact that he was during the months September to December of 2007 registered in and taking classes at Simon Fraser University and for the Spring term of 2008 is registered in and is taking three classes at the University of Saskatchewan. Step What amount of child support is appropriate? [14] In this case, after some discussion and argument, think the parties are also in agreement that the Guideline amounts are appropriate and were appropriate in the past, so long as the children remained children within the meaning of the Act. In any event, based on the circumstances of this case, would have found the Guideline amounts to be appropriate. [15] The real issue between the parties appears to be in respect to the factors to be considered when the children were attending university and working part time and how this would affect the Guideline amounts payable. Fortunately, do not need to determine this issue as the parties have asked me to determine only the obligations up to the initial return date on the application which was December 17, 2007. As of that date, Keegan was in full-time attendance at university and Luke was not, so that the Guideline amounts up to that date were appropriate. Based upon Mr. Strueby’s 2007 income of $44,781 and Ms. Strueby’s income of $90,628, the Guideline amount payable by Mr. Strueby for the support of Keeghan is $380 per month plus 33% of all s. expenses. [16] While Mr. Strueby’s application for variation requested that he be allowed to pay any maintenance payable for Keegan directly to Keegan, there is nothing in the material filed which would indicate that Ms. Strueby is not providing support to Keegan in an appropriate fashion. Furthermore, the difficulties that could then arise in respect to enforcement of the order if the child support payments were not made directly to Ms. Strueby would mitigate against such a variation. See Shillington v. Shillington, 2008 SKQB 70 (CanLII), [2008] S.J. No. 89 (QL). Step The application to eliminate or reduce Mr. Strueby’s child support arrears [17] While Mr. Strueby’s initial application had been to eliminate the child support arrears, it was acknowledged by his counsel in the pre-trial brief filed and in argument that as result of his increases in income since the original support order had been made in 2003, and the fact that Keegan only achieved the age of majority in November of 2007, that any retroactive assessment of arrears should take these factors into account. Mr. Strueby’s counsel filed material indicating that the total arrears as of December 17, 2007 were $9,440. Ms. Strueby’s counsel does not take issue with the mathematical calculations, but suggests that they are based upon assumptions as to dates at which the child support orders for Jill and Luke would cease, which Ms. Strueby does not accept. However, as the onus of proof in this regard is upon the parent seeking to establish an obligation to pay child support after the age of majority, and as Ms. Strueby did not file or submit evidence as to what appropriate costs were, therefore accept the calculations prepared by counsel for Mr. Strueby. [18] However, para. 13 of Ms. Strueby’s affidavit sworn December 11, 2007 indicates that Keegan’s costs for attendance at Simon Fraser University totalled $18,000, of which she paid the sum of $8,000, with the remainder paid by student loans. While the sum paid by Ms. Strueby is not broken down between tuition and living expenses, am satisfied that this cost should be divided between the parties in the same proportion as the s. expenses based upon their respective incomes. Accordingly, Mr. Strueby’s share would be 33% or $2,667. Pursuant to Mr. Strueby’s counsel’s calculations, and my order that he was to have paid $380 per month for the months of September to December, this would total $1,520. After deducting this sum from the $2,667 in total support for this period that he should otherwise have paid, there remains owing the additional sum of $1,147 which should be added on to the outstanding arrears. Therefore, the arrears as of December 17, 2007 are $10,587. [19] Mr. Strueby has also sought an order for an orderly payment of the arrears. Based upon the financial information that he has provided, set the amount that Mr. Strueby should pay towards the arrears at $200 per month until such time as Mr. Strueby is no longer paying child support for Keegan when the amount payable towards the arrears should increase to $500 per month. [20] 1. There shall be a declaration that Jill, born December 16, 1981, is no longer a child of the marriage within the meaning of the Divorce Act. 2. There shall also be a declaration that Luke, born May 29, 1986, is no longer a child of the marriage within the meaning of the Divorce Act, but that this application concerning Luke is adjourned until November 1, 2008 to determine if he has once again become a child of the marriage and if so, if child support is payable by Mr. Strueby in respect to Luke. 3. The child, Keegan, born November 13, 1989, is found to be a child of the marriage within the meaning of the Divorce Act. Based upon Mr. Strueby’s 2006 income of $44,957 and Ms. Strueby’s 2006 income of $90,628, the judgment of Justice P.J. Dielschneider dated February 28, 2000 is varied such that Mr. Strueby shall pay to Ms. Strueby, for support of the said Keegan, the sum of $380 per month plus 33% of s. expenses, with such payments to continue on the first day of each and every month until such time as the said child, Keegan, is no longer child within the meaning of the Divorce Act; 4. It is determined that the amount of child support arrears owing under the judgment of Justice P.J. Dielschneider dated February 28, 2000, as of December 17, 2007, is $10,587. Mr. Strueby shall pay to Ms. Strueby this amount by monthly payments of $200 per month commencing January 1, 2008. 5. As the sum of $500 per month has been paid in the interim pursuant to my order of December 17, 2007, any such payments made shall be applied firstly towards the ongoing child support for Keegan, and then towards the arrears. 6. As success has been divided in respect to this application, there will be no order as to costs. J. N.G. GABRIELSON

FIAT: The parties have three children, Jill born December 1981, Luke born May 1986 and Keegan born November 1989. The respondent states that he has paid child support pursuant to the court order of February 2000 but, when the children reached the age of majority, he reduced the amount of child support payable as the children became independent and moved out on their own. The petitioner takes issue with the respondent's unilateral reduction in child support and submits the children remained children within the meaning of the Divorce Act so long as they were attending university. The parties agree that given the age of the children there has been a change in circumstance sufficient to allow a review of the existing child support order. HELD: 1) The parties agree that Jill, age 26 is no longer a child of the marriage and that Luke, age 21 is not presently a child of the marriage but could once again become a child of the marriage if he attends university in the fall of 2008. The parties also agree Keegan is 18 and remains a child of the marriage by virtue of the fact that he is taking classes at the university. 2) While the respondent asks that he be allowed to pay child support directly to the children, there is nothing in the material filed which would indicate that the petitioner is not providing support to the child in an appropriate fashion. Further, the difficulties that would arise in respect to enforcement of the order if the child support payments were not made directly to the petitioner would mitigate against such a variation.

2008skqb146.txt

TICKET NO. 32413443 2007 SKPC 41 IN THE PROVINCIAL COURT OF SASKATCHEWAN AT SASKATOON Between: HER MAJESTY THE QUEEN AND BUYAKI (J.C.) Cory Bliss for the Crown Tyla Olenchuk for the Accused P.S. Kolenick, PCJ JUDGMENT June 22, 2007 [1] The accused is charged that he did, on or about February 17, 2006, at Saskatoon, drive while disqualified, contrary to s. 89(1) of The Highway Traffic Act, as it was then. The alleged driving occurred when the accused was involved in motor vehicle accident and engaged in other alleged misconduct, including driving without due care and consideration for others, and failing to identify himself to the other driver before departing from the scene. [2] Mr. Buyaki is 25 years of age. It is apparent from the Driver History, which has been filed by the Crown, that his S.G.I. driving record since the year 2000 includes numerous entries for motor vehicle accidents, summary offence tickets, and other administrative actions by S.G.I., which have, on occasion, resulted in the disqualification of his driving privileges for varying lengths of time. [3] Further in that regard, the Crown filed letter dated July 11, 2005 from S.G.I. to the accused. In it, he was advised of his eligibility for provisional license, effective July 11, 2005, because he had successfully completed the Driving Without Impairment course. That letter included the following paragraph: Please note that restricted or provisional drivers who drive after consuming any amount of alcohol will have the original driver’s license suspension period reinstated and will be required to attend an addictions screening and prescribed program. [4] Also included in the evidence for the Crown herein is Certificate of Disqualification or Prohibition, signed on behalf of the Administrator under The Vehicle Administration Act (since repealed). It confirmed that, on December 18, 2005, the accused had been disqualified from holding or securing license, continuously, to and including the date of the Certificate, namely August 15, 2006. That had arisen for failing to participate in program prescribed by the Driver Licensing and Regulations. EVIDENCE FOR THE DEFENCE The Accused [5] The accused indicated that the motor vehicle accident in issue had occurred on February 17, 2006, at time when it was his belief that he had valid provisional driver’s license. In that regard, he had earlier participated in the Driving Without Impairment program and Addiction Screening, which S.G.I. had required as condition thereof. Pursuant to the prior mentioned letter dated July 11, 2005, from S.G.I., he had proceeded shortly after receiving it to obtain the said provisional license. [6] The accused testified further that, on December 18, 2005, while driving near Carrot River, Saskatchewan, he was stopped by member of the RCMP and issued 24 hour driving suspension. At the time, he advised the officer of his provisional license, and learned that the suspension would be for 24 hours only and otherwise, he could drive thereafter unless advised to the contrary by S.G.I. [7] He had indeed been disqualified on December 18, 2005, and continued to be so on the date of the motor vehicle accident. Despite that the accused denied herein he had received any notice of suspension from S.G.I. between December 18, 2005 and the date of the motor vehicle accident, February 17, 2006. Indeed in that regard, he produced herein letter from S.G.I., dated February 16, 2006, and postmarked February 20, 2006. In it, S.G.I. confirmed that, as result of the roadside suspension on December 18, 2005, his driver’s license was suspended until October 16, 2006, and until he had completed the required education or recovery program. Unfortunately, he had not received the said letter until subsequent to the motor vehicle accident in issue. [8] In cross-examination herein the accused was reminded of the contents of the letter dated July 11, 2005 from S.G.I., in which he was told that consumption of any alcohol would cause the original driver’s license suspension period to be reinstated, and require him to attend programming. He confirmed that he was aware of those repercussions, but had not bothered to contact either S.G.I. or the police, to confirm the legal effect of the December 18, 2005 roadside suspension. [9] In re-examination he confirmed his belief that, on February 17, 2006 he was able to legally drive because there had been no contact from S.G.I. stating otherwise. ANALYSIS Should the offence of driving while disqualified contrary to the provincial statute be regarded as a full mens rea offence? Is the evidence sufficiently credible for the Court to conclude that the accused had knowingly operated a motor vehicle while subject to a driving disqualification? [10] During argument, I had suggested to counsel that the driving while disqualified matter herein should be regarded as a full mens rea offence, rather than one of strict liability requiring the accused to establish due diligence on a balance of probabilities. I am still of that view, given that the accused’s liberty is jeopardized with the potential of incarceration. Likewise the automatic disqualification and surrender of driver’s license are serious sanctions. [11] Further in that regard, in R. v. Kraftchick (S.J.K.), (2006), 37 M.V.R. (5th) 228, (Sask. Prov. Ct., Kovatch, P.C.J.), the Court made the following observations on the facts therein, commencing at para. 6: The issue in these proceedings for this accused is what is the mens rea or criminal intent that must be established by the Crown. In this regard, have reviewed the decision of R. v. Cote, 2006 SKPC 45 (Sask. Prov. Ct.) (CanLII), decision of His Honour Judge Green. In that case, Judge Green was dealing with charge of drive while disqualified under Section 259(4) of the Criminal Code. He referred to the Supreme Court of Canada decision in R. v. Baril, 1979 CanLII 227 (SCC), [1979] S.C.R. 547 (S.C.C.) [hereinafter “Prue”], and that the mens rea for this offence was knowledge of the driving disqualification. He had reasonable doubt as to whether the accused had the requisite knowledge, and accordingly acquitted. The case at bar involves charge under the Saskatchewan Highway Traffic Act, as opposed to the Criminal Code. However, in the Prue decision, the Supreme Court made it clear that there is presumption against strict liability offences, and in favour of some element of mens rea or criminal intent. As result, do not believe this is strict liability offence. Rather, believe that some mens rea must be established. would conclude, as did Judge Green in the Cote decision, that the requisite mens rea is knowledge of the suspension of the driver’s license, and an attempt to drive in the face of that knowledge. On the basis of all of the evidence, have reasonable doubt that the accused had knowledge of the suspension of his driver’s license. Accordingly, do not believe the Crown has established the offence and the accused must be acquitted. [12] It is therefore necessary to assess the credibility of the witnesses who testified in the context of whether the evidence is sufficient for the Crown to prove beyond reasonable doubt the accused had committed the offence as alleged. The accused is presumed innocent until proven guilty. In the assessment of credibility, the court is guided by the principles restated in R. v. McKenzie (P.N.) (1996), 1996 CanLII 4976 (SK CA), 141 Sask. R. 221 (Sask. C.A.) (From R. v. Rose (A.) (1992), 1992 CanLII 987 (BC CA), 20 B.C.A.C. (B.C.C.A.)), para. 4: First, if you believe the accused, obviously you must acquit; Secondly, if after careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit; Thirdly, if you do not believe the evidence of the accused but you are left in reasonable doubt by it, you must acquit; Fourthly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do not accept, you are convinced beyond reasonable doubt by that evidence of the guilt of the accused. [13] The determination of credibility does not involve the court opting for one version of events or the other. Rather, the Crown must prove that its evidence is credible, and there is no onus on the accused whatsoever in that respect. Even if the court prefers the evidence of the Crown, it must still consider whether the evidence for the defence raises reasonable doubt. [14] In assessing the accused’s credibility on that basis, he was adamant in asserting that he had no knowledge of his license suspension at the material time. There are some concerns with his claim in that respect. In particular, he was not able to offer compelling explanation for ignoring the admonition to him in the letter of July 11, 2005 that if he consumed any alcohol, the original driving suspension would be reinstated. Obviously that could have caused him to make further inquiries of S.G.I. or the police. [15] To his credit, however, the accused believed it was appropriate to rely on the advice of the peace officer on December 18, 2005, that it was only 24 hour suspension, unless he heard further from S.G.I. Likewise, it did not appear that the accused had any further communication from S.G.I. subsequent to December 18, 2005, until shortly after the motor vehicle accident, roughly two months later. At that time, it was confirmed that the suspension had been extended to October 16, 2006, contrary to his earlier belief. [16] Apparently it is an important part of the S.G.I. administration of driver’s license suspensions that there be communication by letter, as has occurred here twice, with the purpose of attempting to ensure accused persons are advised in writing of changes in the legal status of their driving suspensions, with clarity and precision. As such, this accused should be able to rely on that procedure, even when that communication was not as timely as one would hope. Not having heard from S.G.I. in the interim, after December 18, 2005, it was reasonable for him to rely on the advice received from the peace officer. In the meantime, it was unfortunate the updated status of the suspension had not been conveyed by S.G.I. in the normal course, any earlier that it actually was. [17] Therefore, applying the principles in McKenzie supra, while do not necessarily believe the evidence of the accused am left in reasonable doubt by it. As such the evidence is not sufficient to prove that the accused had knowingly operated a motor vehicle while disqualified as alleged, and he is not guilty.

The accused was charged that he did drive while disqualified, contrary to s. 89(1) of The Highway Traffic Act, as it was then. The issues were as follows: 1) should the offence of driving while disqualified contrary to the provincial statute be regarded as a full mens rea offence? 2) is the evidence sufficiently credible for the court to conclude that the accused had knowingly operated a motor vehicle while subject to a driving disqualification? HELD: The accused is not guilty. 1) Driving while disqualified should be regarded as a full mens rea offence, rather than one of strict liability requiring the accused to establish due diligence on a balance of probabilities, given that the accused's liberty is jeopardized with the potential of incarceration. Likewise the automatic disqualification and surrender of a driver's license are serious sanctions. 2) The accused was adamant in asserting that he had no knowledge of his license suspension at the material time. Although he was not able to offer a compelling explanation for ignoring the admonition to him in a letter from Saskatchewan Government Insurance (S.G.I.) of July 11, 2005 that if he consumed any alcohol, an original driving suspension would be reinstated, the accused believed it was appropriate to rely instead on the advice of the peace officer on December 18, 2005 that it was only a 24 hour suspension, unless he heard further from S.G.I. Likewise, it did not appear that the accused had any further communication from S.G.I. subsequent to December 18, 2005, until shortly after the motor vehicle accident, roughly 2 months later. At that time, it was confirmed that the suspension had been extended to October 16, 2006, contrary to his earlier belief. Apparently it is an important part of the S.G.I. administration of driver's license suspensions that there be communication by letter, as has occurred here twice, with the purpose of attempting to ensure accused persons are advised in writing of changes in the legal status of their driving suspensions, with clarity and precision. As such, this accused should be able to rely on that procedure, even when that communication was not as timely as one would hope. Not having heard from S.G.I. in the interim, after December 18, 2005, it was reasonable for him to rely on the advice received from the peace officer. As such, the evidence is not sufficient to prove that the accused had knowingly operated a motor vehicle while disqualified as alleged, and he is not guilty.

c_2007skpc41.txt

J.C. Y. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF YORKTON BETWEEN: JULIUS CHORNEY and HER MAJESTY THE QUEEN RESPONDENT Orest Rosowsky, Q.C. for the appellant Daryl B. Bode for the Crown JUDGMENT ARMSTRONG J. January 24, 1995 The appellant, Julius Chorney (herein sometimes"Chorney"), seeks to overturn a conviction by Andrychuk J. inthe Provincial Court that he:. . . did operate a motor vehicle while his ability to operatethe vehicle was impaired by alcohol and/or a drug contrary toSection 253(a) and Section 255 of the Criminal Code. The powers of this Court on this appeal are set forth in ss. 686(1)(a) of the Criminal Code: 686.[613](1) On the hearing of an appeal against conviction or against verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal (a) may allow the appeal where it is of the opinion that (i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, (ii) the judgment of the trial court should be set aside on the ground of wrong decision on question of law, or (iii) on any ground there was miscarriage of justice. The notice of appeal cites six grounds, one of them an alleged violation of the Charter. There is an added catch all "any other grounds that may appear from reading of the transcript". There is no mention in the notice of appeal, at least in the language of the section, of any of the grounds set out in ss. 686(1)(a). However at the opening of argument theappellant abandoned all but the Charter matter and oneinvolving the "principle of reasonable doubt". The Charter allegation reads:. . .d)That the accused's right to life, liberty and security ofthe person and the right not to be deprived thereof except inaccordance with the principles of fundamental justice as setout in Section 7 of the Charter were infringed by virtue ofthe fact that the Crown failed to provide disclosurerespecting crucial evidence of impairment to the accused orhis counsel after being requested to do so, thereby denied theaccused his right to make full answer and defence. Notices of this allegation were served on the Attorneys General of Canada and Saskatchewan as required by The Constitutional Questions Act, R.S.S. 1978, c. C-29, in the following terms: TAKE NOTICE that the accused JULIUS CHORNEY through Counsel on his behalf intends to make an application for dismissal of the charge on the grounds that the accused's right to be provided with timely disclosure of the Crown's evidence was infringed as guaranteed by Section of the Canadian Charter of Rights and Freedoms. Particulars are noticeably absent from the notice of appeal and even more so from the notices for the Attorneys General. Neither Attorney General was represented at the trial. The information that was not disclosed by the Crown before trial was that the investigating officer had received telephone call in which she was informed that Chorney "had left [the town of] Endeavour and was driving intoxicated." The fact of the telephone call was revealed when it was volunteered in the examination in chief of the investigating officer. It is agreed that counsel for the Crown knew nothing whatsoever about the telephone call prior to hearing it from the witness at trial. Failure to disclose was not raised before the trialjudge. (Counsel for Chorney on this appeal was not counsel at the trial). It should have been if it was to be raised atall. See Mark Joseph Cartier v. Her Majesty the Queen, Sask. Q.B.C.A. No. 12/93, J.C. Prince Albert, August 31, 1994, Baynton J. (as yet unreported) and the cases cited by Baynton J., R. v. Anaquod (1990), 1990 CanLII 7459 (SK QB), 88 Sask. R. 205 and R. v. Kutynec (1992), 1992 CanLII 12755 (ON CA), 12 C.R. (4th) 152 159. Had the objection of failure to disclose been raisedat trial the trial judge would then have had to decide whetherthere was a reasonable possibility that the withholding ofinformation had impaired the right of the accused to make fullanswer and defence R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 340. If the information could be of some use to the accused,it is relevant and should have been disclosed. The trialcould have been adjourned if wanted. There being no complaint at the trial, of nondisclosure, this appeal on this point could justifiably be dismissed. However invited counsel in argument to advance any idea as to how knowledge of the telephone call might have prompted anything different in the action or inaction of the defence. The defence did not call evidence at the trial. In R. v. Durette (1994), 1994 CanLII 123 (SCC), 88 C.C.C. (3d) (S.C.C.), Sopinka J. held that an accused should not be required to demonstrate the specific use to which information the accused had not even seen, might be put. But in the present case the information that the telephone call was made has been known since the trial (if not before as to which see below). do not see how Chorney was prejudiced in making full answer and defence by not knowing that someone other than the investigating officer thought he was inebriated the night in question. Counsel argues that it is impossible to tell what use could have been made if the information had been available before trial. But this does not bring this case within the Durette provision. It is not "Catch 22" situation. In Durette, the appellants did not know what had not been disclosed. In the present case the appellant has now had the information seven months, if not longer. Besides, Durette dealt with securing wire tap evidence which Sopinka J. said formed substantial part of the evidence against the appellants in that case. In the present case, neither the telephone call nor the information conveyed thereby was any evidence against the accused. The telephone call was no more than part of the investigating officer's narrative of how she came to be out on the highway on the night in question. do not know how the appellant might have benefited from disclosure of the telephone call before trial but more significantly, Chorney does not offer any idea. Accordingly reject this ground of appeal. should mention that even if allowing the appeal on this point, the proper disposition would be to order new trial. Durette, p. 59. There may be another and disquieting ground for rejecting the appellant's Charter argument. The following is from the cross-examination of the investigating officer (transcript, p. 25): QNow you'd indicated earlier you'd received call with respect to Mr. Chorney. When did that call come in? AApproximately five to 6:00. QAnd where did that one where did the call come from? AI just took it that it came from Endeavour. There was no name given. The caller just said that he had left Endeavour, driving intoxicated. QFrom what understand, you're aware of the identity of this person? AHe's an anonymous caller. QWell understand, from what you're saying, that he didn't give his name but understood also that you do know who it is, regardless of whether he named name or not? AI do. The foregoing exchange taken together with the fact that there was no objection raised at trial over the nondisclosure by the prosecution of the telephone call suggests very strongly, if not conclusively, that the defence knew before trial about the telephone call and accordingly knew more than counsel for the Crown. There is then the ground and argument "involving the principle of reasonable doubt" so described by counsel for the appellant. Although not specifically so characterized by the appellant it has to be under ss. 686(1)(a)(i) that the verdict is unreasonable or cannot be supported by the evidence. Chorney is deaf. The investigating officer knew Chorney prior to the incident resulting in Chorney's conviction. She knew he was deaf. When Chorney's car was stopped by the officer he was not wearing his boots but they were on the floor beside him in his car. The officer wanted him to leave his car and come back to the police car but wanted him to first put his boots on. She said that he refused to do so. The following brief exchange took place in cross-examination of the officer: QDid you ask him why he was why he didn't want to wear his boots? AI no, just asked him to put them on and he refused to put them on. QWere they taken with you back to the detachment? AYes, they were. There were few more questions that concerned the alleged condition of the boots but nothing relating to how the officer "asked" Chorney to put on his boots. When Chorney got out of his car as requested by the officer he did so in his stockings only. It was the 12th of January, there was snow on the ground and it was very cold. The fact that Chorney did not put his boots on was emphasized by the trial judge in his decision. He said this: Over and above everything that have just commented on insofar as the officer's evidence is this issue of the shoes. Now it's twenty below, Officer Grimsrud's evidence think is in the low twenties, whether that means twenty-one is low number in the twenties or twenty-nine is also low because you're close to thirty, but accept as fact that her evidence is that it's in the twenties. She's trying to get the Defendant to put his shoes on and he won't and, if you are visualizing or attempting to visualize in your mind's eye what the actions would be of person who is impaired by alcohol, it seems to me that sensible, sober person may well complain if he is not given an opportunity to put his shoes on in these circumstances, or indeed may refuse to exit the vehicle. Here the driver is refusing to put his shoes on. And the trial judge went on to find Chorney guilty. Now counsel (and again, present counsel was not counsel at trial) argues that the evidence of the officer asking Chorney to put on his boots should never have been considered because Chorney is deaf and wouldn't know he was being asked to put his boots on. He goes on to argue that without this particular evidence there is not enough other evidence to convict "beyond reasonable doubt". First of all, if the evidence was to be challenged it should have been challenged at first opportunity. It was not challenged; the officer was not even cross-examined on how she "asked" Chorney to put his boots on. In examination-in-chief she testified how she wrote out the required warning to him, that she wrote out the demand for breathalyser test and wrote out questions regarding calling lawyer. She knew Chorney was deaf and there is nothing in the evidence to indicate that he did not get her message. But even if one assumes that Chorney did not get the message, is it any less "different" that he gets out of his car in only his stockings? The trial judge observed that sober person might refuse to exit his vehicle without his boots, never mind any request to put them on. Secondly, even if one could find merit in counsel'sargument, which I do not, and even if it was accepted, thetrial judge could reasonably convict on the other evidence heconsidered. In the so often referred to case R. v. Andres (1980), 1979 CanLII 2238 (SK CA), Sask. R. 96 (C.A.) Culliton C.J.S. said (p. 99): The right of the Appeal Court to set aside conviction on the evidence is set out in Section 613(1)(a)(i) namely that the verdict is unreasonable or cannot be supported by the evidence. The Court of Appeal cannot and should not set asidea conviction merely because it would have taken a differentview of the evidence than did the trial Judge. The Court of Appeal must remember that it is neither its duty or its function to re-try cases its function is one of review. Thus while the Appeal Court may differ with the trial Judge as to the facts established by the evidence, it will only disturb his findings of fact if it is satisfied that such findings are not supported by the evidence or that the conclusion reached by the trial Judge is so clearly wrong as to make that decision unreasonable. See the judgment of Branca, J.A., in R. v. Dhillon (1973), 1972 CanLII 1356 (BC CA), C.C.C. (2d) 414, for correct statement of the principles to be followed and very helpful review of authorities. The appeal is dismissed.

The accused appealed his conviction by a Provincial Court Judge on a charge of impaired driving. The accused argued that the Crown had failed to make proper disclosure contrary to s.7 of the Charter and that the trial judge has misapplied the concept of reasonable doubt. HELD: Appeal dismissed. 1)The failure of the Crown to disclose was not raised at trial as it should have been. If the matter had been raised at trial and the judge then thought that the evidence not disclosed impacted the accused's defence, he could have adjourned the trial. 2)The evidence not disclosed would not have affected the accused's defence in any event. 3)On the issue of reasonable doubt, the trial judge could reasonably have convicted on the evidence, and the Court would therefore not substitute its own view of the evidence.

d_1995canlii5983.txt

J. 1993 C. R. 12836 IN THE SUPREME COURT OF NOVA SCOTIA HER MAJESTY THE QUEEN T.V.G. DECISION ON SENTENCING Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on January 27, 2008. HEARD BEFORE: The Honourable Justice Nancy J. Bateman (and Jury) in the Supreme Court of Nova Scotia on May 2, 3, 4, 1994 DECISION: June 24, 1994 (Orally) WRITTEN RELEASE August 5, 1994 OF ORAL: COUNSEL: Robert Fetterly, for the Prosecution Delores O'Neill, for the Defence BATEMAN, J. (Orally) T.V.G., you were convicted by a jury of sexually assaulting B.S., your common‑law spouse. The offence is contrary to s. 271(1) of the Criminal Code. The evidence presented to the jury was that you and Ms. B.S. had separated few days before this offence. She continued to reside in her home where you had lived together. You called her late in the night preceding the offence. As result of that call, she was afraid to remain in her home and took the children next door to her father's house. After spending the night there she came back to her residence to pick up some clothing before work. You had entered her house sometime during the night you confronted her forced her into the bedroom and raped her, despite her struggles. According to her evidence, during your repeated penetration of her you questioned her about other boyfriends. Ms. B.S. testified, as well, that before raping her, you said that you did not care if you went to jail for this. Clearly, you appreciated the nature of your conduct and the possible consequences. Sexual assault is crime of violence. In crimes of violence, general deterrence is the primary focus, although not the only consideration. General deterrence is usually effected through incarceration, although in exceptional circumstances, other dispositions have sufficed. The case law presented to me on similar offences overwhelmingly supports incarceration the significant question being the appropriate length. Any form of spousal assault is cowardly, violent crime of domination and intimidation. It speaks of control exercised by the physically stronger partner over the weaker. It has recently been referred to as 'domestic terrorism', and that is an apt term. It is crime which shows little evidence of abating. In R. v. McCraw, 1991 decision of the Supreme Court of Canada, Justice Cory spoke of the impact of sexual assaults upon the victim. He says: "For women rape under any circumstances must constitute profound interference with their physical integrity. As well, by force or threat of force, it denies women the right to exercise freedom of choice as to their partner for sexual relations and the timing of those relations. These are choices of great importance that may have substantial effect upon the life and health of every woman. Rape is not just sexual act but is basically an act of violence." He goes on to say: "Rape throughout the ages has been synonymous with an. act of forcibly imposing the will of the more powerful assailant upon the weaker victim. The victim has been forced to undergo the ultimate violation of personal privacy by unwanted sexual intercourse. The assailant has imposed his will on the victim by means of actual violence or the threat of violence. Violence and the threat of serious bodily harm are indeed the hallmarks of rape. While the bruises and physical results of the violent act will often disappear over time, the devastating psychological effects may last lifetime." In case of our Court of Appeal, R. v. Works, decision dated December 3rd, 1991, Justice Matthews writing for the court made the following comment: "Women must be free to walk the streets in safety. Even more so, women must, in circumstances such as before us, be able to trust men and if man violates that trust, then he must receive sentence commensurate with the offence and the offender." The impact of the crime on a victim is relevant to the sentence in two ways. In the general sense, the presumed impact of this type of crime on any victim is considered in the context of the gravity of the offence and the range of sanction it attracts. Additionally, the impact of this particular offense on this victim is also to be considered in fixing sentence, but is only one of many factors. Sentences must always be tailored to the individual. The goal of sentencing is protection of the public elements of general and specific deterrence as well as rehabilitation must be considered. must weigh factors particular to you, T.V.G, and particular to the circumstances of this crime. In any crime there may be mitigating and aggravating factors which bear on sentence. The sentence which impose, T.V.G.., is one which must reflect society's outrage generally at violent crime of any form, and outrage, specifically, at your assault on Ms. B.S.. In R. v. G.M., decision of the Ontario Court of Appeal dated November 2nd, 1992, Justice Abella, writing for the Court, explains the role of denunciation in sentencing sexual offenders. She says: "The public can logically be expected to infer from the nature of the sentence the extent to which court views as serious, certain conduct by given individual ......Sentences which appear on their face to be exceptionally lenient in the circumstances can be presumed to generate neither deterrence nor denunciation." The factors which am about to address T.V.G. are, in some cases, aggravating and in others mitigating and otherwise simply factors to which must turn my mind in fixing the proper sentence. In many instances they overlap and they are not necessarily cumulative. Sentencing is not scientific process of adding up debits and credits. In my view, the fact that you committed this assault on your former common‑law wife, someone with whom you had had longstanding intimate relationship and had fathered child, is aggravating. Surely this is of more serious nature than an assault on stranger. While the fact that you assaulted Ms. B.S., not stranger, may be relevant in assessing your danger to the community at large, the fact that she was close to you does not make the crime less serious. It was form of breach of trust and that is an aggravating factor. In passing sentence, it perhaps puts the matter into perspective to consider what would be an appropriate sentence had you entered the home of stranger and raped her. The pre‑sentence report indicates that you came from stable, hardworking family. You live with your mother and, notwithstanding this offense, continue to have her support. You have been source of support to her, presumably both emotionally and physically. You and Ms. B.S. have an eleven year old daughter. Ms. B.S. has fifteen year old daughter of another relationship. Ms. B.S. indicates in the pre‑sentence report that while you have never been abusive to the children, you are father in name only, as you have not provided necessities. According to Ms. B.S., you have cocaine abuse problem. You do not acknowledge that you abuse cocaine, although admitting you have tried it. Notwithstanding your denial of substance abuse, the probation officer concludes you would benefit from drug counselling. In fixing this sentence, have not emphasized your past unrelated record, although you do not come to the court as first offender. Ms. B.S. has filed victim impact statement. She indicates that since this rape, she and the children have continued to live at her father's home. Although they have tried to return to their home, they are afraid to spend the night there. Your daughter is afraid to go to bed alone and waits for her mother to go to bed. Ms. B.S. indicates that she is nervous and finds it difficult to sleep. It is aggravating that this offense occurred in Ms. B.S.' home the place, of all places, where person is entitled to feel safe. Nor can the offense be characterized as totally spontaneous, to the extent that you had previously entered the home and stayed until Ms. B.S. appeared. Indeed, you stayed even after she had fled, until apprehended there by the police. Had B.S. been reckless about her safety, that would not have been mitigating factor. It is worthy of mention, however, that she had, the night before, fled her home, with her children, for fear of what you might do. She took all reasonable steps to protect herself in the circumstances. She could hardly have sent her blind father, or one of the children, to collect her clothes in the morning. Notwithstanding the care that she took, she was brutally raped. In fixing sentence, find the older cases of less guidance, as the custodial term for such crime has been increasing of late in response to the number of cases appearing before the courts, and the recognition that past sentences have apparently had little deterrent effect. We have not, in this Province, endorsed starting point approach, as has been done in some of the Western provinces. However, find the comments in R. v. Sandercock, decision of the Alberta Court of Appeal, of assistance, and note that it has been referenced in decisions of our Court of Appeal in particular, R. v. Blackburn. The court in Sandercock categorizes rape, not surprisingly, as major sexual assault. In R. v. Blackburn, the court approved that classification by citing the following words from Sandercock: "This category, which we would describe as major sexual assault, includes not only what we suspect will continue to be called rape, but obviously also many cases of attempted rape, fellatio, cunnilingus, and buggery where the foreseeable major harm which we will later describe is present." Without question, T.V.G., you have committed a major sexual assault, and must be sentenced accordingly. The court in Sandercock describes at p.85 the effect of sexual assault on the victim. It says: "This harm includes not just the haunting fear of another attack, the painful struggle with feeling that somehow the victim is to blame, and the sense of violation or outrange, but also lingering sense of powerlessness. What we mean by this last is that, while we all are aware in an intellectual way about the fragility of normal existence, to experience sudden and real threat to one's well‑being, threat so intense that one must beg to be spared, tends to destroy that sense of personal security which modern society strives to offer and humanity so obviously wants." am mindful, given the frequency with which these cases are appearing in the courts, that there is risk of becoming desensitized to the horror and trauma sexual assault inflicts upon the victim and the fear that radiates to society generally from reports of such crimes. The court must take care not to underestimate the gravity of this offence. It carries possible maximum sentence of ten years. In R. v. Brooks, decision of the Nova Scotia Court of Appeal, in January of 1993, an offender who had raped his former common‑law wife received sentence of forty‑two months. There are some factors present in that case not present here he was on parole at the time, and had conviction for previously assaulting his wife. Defense counsel has indicated, as well, that Mr. Brooks had received prior sentence of three years for sexual assault on his wife. In R. v. Blackburn, the accused broke into the home of an eighty‑six year old woman and raped her. His sentence was increased on appeal from three to six years. The additional aggravating factor there, not present here, was the conviction for break and enter. T.V.G., you maintain your innocence, as you are entitled to do however, jury of twelve has found you guilty of sexual assault upon Ms. B.S.. You must understand what you have done. This was not stolen romantic moment with hesitant partner, but violent assaultive act, the effects of which will stay with Ms. B.S. always and what sad example for your daughter. Sir, I am persuaded that a fit and proper sentence for your crime, taking into account the circumstances of this offence and the requirements of denunciation and general deterrence, is a period of incarceration of two years and eight months, the total being thirty‑two months. In addition, under s.100(1) of the Criminal Code, I order that you shall not have in your possession any firearm, ammunition, or explosive substance for a period of ten years. In view of T.V.G.'s financial circumstances, and the fact that he is facing lengthy period of incarceration, am not going to impose victim fine surcharge.

The defendant was convicted by a jury of sexually assaulting his common law spouse. They had separated; she continued to reside in the home with the children. Because of his repeated phone calls, she became afraid to stay in the house. She took the children to her father's house. The defendant entered the house in the night and assaulted the complainant when she returned to pick up some clothes. Imposing a sentence of two years eight months, plus a ten year firearm prohibition, that this offence could be categorized as a major sexual assault. The principles of sentencing and the impact on the victim, especially in view of the fact that she was his common-law spouse, made this sentence fit.

5_1994canlii7588.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2012 SKQB 237 Date: 2012 06 08 Docket: Q.B. 11/2012 Judicial Centre: Moose Jaw BETWEEN: HER MAJESTY THE QUEEN and RONALD DENNIS WINGENBACH Counsel: Nicholas Robinson for the appellant Andrew Davis for the respondent JUDGMENT WHITMORE J. June 8, 2012 [1] This is an appeal from conviction in the Provincial Court of Saskatchewan that the appellant did, having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 milliliters of blood, operate a motor vehicle contrary to section 255(1) and section 253(b) of the Criminal Code, R.S.C. 1985, c. C-46. [2] The notice of appeal states: 1. The learned trial judge erred in holding that the police officer who made demand for sample of the Appellant’s breath had reasonable and probable grounds to make such demand pursuant to section 254(3)(a) of the Criminal Code; 2. The learned trial judge erred in holding that the Appellant, upon being detained by the police, was provided with his right to retain and instruct counsel of his choice, without delay, and to be informed that right as provided by section 10(b) of the Canadian Charter of Rights and Freedoms. 3. The learned trial judge erred in holding that the Appellant, while being held for the purpose of providing samples of his breath, was not arbitrarily detained contrary to section of the Canadian Charter of Rights and Freedoms. 4. The learned trial judge erred in holding that the taking of breath samples from the Appellant did not constitute an unreasonable search and seizure pursuant to section of the Canadian charter [sic] of Rights and Freedoms. 5. The learned trial judge erred in holding that the certificate of analysis tendered by the crown was evidence of the concentration of alcohol in the Appellant’s blood pursuant to section 258 of the Criminal Code and in excluding such evidence pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms on the grounds that the Appellant’s rights were infringed or denied pursuant to section 8, or 10(b) of the Canadian Charter of Rights and Freedoms. 6. The learned trial judge erred in holding that the Appellant was the operator or had care or control of motor vehicle within the meaning of section 253(1)(a) or section 253(1)(b) of the Criminal Code. 7. The learned trial judge erred in holding that the Appellant’s ability to operate vehicle was impaired by alcohol or drug pursuant to s.253(1)(a) of the Criminal Code. 8. Such further grounds as counsel may advice [sic] and this Honourable Court may allow. [3] The appellant’s memorandum of law and oral argument, however, dealt only with the contention that the police officer did not have reasonable and probable grounds to arrest him and to demand that he provide sample of his breath for analysis, thereby infringing his right under ss. and of the Canadian Charter of Rights and Freedoms, Part of the Constitution Act, 1982, being Schedule to the Canada Act 1982 (U.K.), 1982, c. 11 (the “Charter”). Therefore will deal only with that ground of appeal. EVIDENCE AT TRIAL [4] Constable Forrester of the Moose Jaw Police Service observed vehicle driving north on Main Street in Moose Jaw at 11:55 p.m. Cst. Forrester noted that the front left tire of the vehicle was flat and that the car was raising dust as it was proceeding along Main Street. [5] She immediately followed the vehicle and put on her flashing lights and siren. She pulled the vehicle over into vacant parking lot. [6] The appellant exited the vehicle and Cst. Forrester saw the appellant looking in the direction of the left front tire of his vehicle. [7] The parties approached each other and Cst. Forrester asked the appellant for his operator’s license and registration. The appellant looked for his documents and got back in his car to look for the documents. Cst. Forrester testified that the appellant fumbled for his operator’s license and while looking for it, stumbled and appeared unsteady on his feet when he got back in his car. [8] Cst. Forrester noted that the vehicle’s windshield washers were on even though the weather was clear. [9] When Cst. Forrester asked the appellant if he had anything to drink, the appellant initially answered “no” but when Cst. Forrester told the appellant that she smelled alcohol, the appellant admitted to having consumed two drinks. [10] Cst. Forrester also testified that the appellant’s speech was slurred although she noted the appellant had cleft lip and this may have caused some speech impairment. [11] Cst. Forrester asked the appellant to enter the police vehicle. She testified that at this time she was considering whether she had sufficient grounds to charge the appellant with impaired driving and demand breath sample or whether to use an Approved Screening Device. [12] Once the appellant and Cst. Forrester were in the police vehicle, Cst. Forrester asked the appellant for particulars such as his name, address and other information and at 12:04 a.m., told him he was under arrest for impaired driving and gave him the Charter warning. At 12:05 a.m., Cst. Forrester demanded breath sample and gave the appellant the police warning. [13] Cst. Forrester testified as follows in giving the grounds that she had for demanding breath sample: A. Sure. And we had, like, the initial initial notices of that he was driving on flat tire up Main Street. His windshield wipers were on. He stumbled out of the car. He had problems getting his driver’s licence out. His eyes were glossy, red and bloodshot. He was slurring his speech which, again, could have been from his cleft lip and had something else. He was stumbling, and he smelled of beverage alcohol, and he also advised me that he had two drinks. Q. So you made the breath demand? did. (Transcript of Voir Dire, p. 18, lines 20 -27, p. 19, lines 4) [14] At 12:29 a.m., when the appellant was in the police station speaking with counsel, Cst. Forrester wrote her notes in her notebook. The notes of the incident in her notebook indicated that the appellant’s eyes were glossy and bloodshot: Q. And you made note, once Mr. Wingenbach was actually sitting in the room speaking with counsel, that his eyes were glossy and bloodshot; is that correct? Q. Is that yes? Q. And you’d agree with me that, at this point, while he’s in the phone room, it’s about 12:30 in the morning? A. Yeah, he’s in there at 12:29. (Transcript of Voir Dire, p. 47, lines 24-26, p. 48, lines 1-8) [15] Cst. Forrester testified that this was the first opportunity to make notes as when she was at the location of the arrest with the appellant in the police vehicle, she was writing up and completing the notice of impoundment of the appellant’s vehicle and did not get an opportunity to complete her notes until she was at the police station at 12:29 a.m. DECISION OF THE TRIAL JUDGE [16] The trial judge said at page 99, lines 16 the following, finding that Cst. Forrester had reasonable and probable grounds to make demand: THE COURT: Madam, with the greatest of respect, dealing firstly with reasonable and probable grounds, the law is very clear that you don’t examine indicia individually and with fine tooth comb. You look at the evidence as whole and determine whether the officer could reasonably come to the conclusion that she did. There is no doubt in my mind that the officer had reasonable and probable grounds. She testified to whole list of factors in her evidence. There is not the slightest indication that she didn’t make those observations or truly act upon them. The video confirms that she was correct in most of those observations. I’m satisfied that she had reasonable and probable grounds. STANDARD OF REVIEW [17] The court may allow an appeal of summary conviction for the reasons set out in para. 686 of the Criminal Code which by s. 822(1) of the Code are made applicable to summary conviction appeals. 1. The verdict is unreasonable and cannot be supported by the evidence; 2. The decision was wrong on question of law unless the court is of the opinion that no substantial wrong or miscarriage of justice has occurred; and 3. There was miscarriage of justice. [18] With respect to appeals brought on the basis the judgment is unreasonable and cannot be supported by the evidence, the test is whether properly instructed jury, acting reasonably, could have reached such verdict. The court can allow an appeal where the trial judge has made palpable and overriding error but it must not substitute its own view of the evidence for that of the trial judge, especially in matters involving findings of credibility. (See R. v. Andres (1979), 1979 CanLII 2238 (SK CA), Sask.R. 96 (Sask. C.A.), [1982] W.W.R. 249; R. v. S. (P.L.), 1991 CanLII 103 (SCC), [1991] S.C.R. 909, 64 C.C.C. (3d) 193) [19] For appeals brought on the basis of an error of law, reversible errors in dealing with evidence can include: 1) misdirection respecting reasonable doubt; 2) failure to consider the evidence in totality; 3) misdirection concerning specific relevant evidence (See R. v. B.(G.), 1990 CanLII 115 (SCC), [1990] S.C.R. 57, 86 Sask.R. 142 following R. v. Morin, 1988 CanLII (SCC), [1988] S.C.R. 345, 44 C.C.C. (3d) 193). reversible error may also include an erroneous interpretation of Charter breach. (See R. v. Yuhas (1993), 1993 CanLII 9081 (SK QB), 114 Sask.R. 34, [1993] S.J. No. 488) [20] For purposes of this appeal, the appropriate test is set out in R. v. Shepherd, 2009 SCC 35 (CanLII), [2009] S.C.R. 527 at paras. 18 22. note specifically at para. 20 While there can be no doubt that the existence of reasonable and probable grounds is grounded in the factual findings of the trial judge, the issue of whether the facts as found by the trial judge amount at law to reasonable and probable grounds is question of law. ... Although the trial judge's factual findings are entitled to deference, the trial judge's ultimate ruling is subject to review for correctness. ISSUE Did Cst. Forrester have reasonable and probable grounds to make breath demand? LAW AND ANALYSIS [21] The appellant argues that at the time Cst. Forrester took the appellant to the police vehicle, she was not certain if she had reasonable and probable grounds to make demand for breath sample or whether she should use an ASD. However when she got to the police vehicle and the appellant was placed in the police vehicle, she very soon thereafter made demand for sample of the appellant’s breath. [22] The appellant argues that the trial judge failed to consider Cst. Forrester’s own testimony that she was not certain if she had reasonable and probable grounds to make demand for breath sample only minutes before she made the demand. [23] The appellant refers to R. v. Shepherd, 2007 SKCA 29 (CanLII), [2007] W.W.R. 659 at para. which states as follows: concise definition of reasonable and probable cause is found in Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] S.C.R. 170 at p. 193: ... Reasonable and probable cause has been defined as "an honest belief in the guilt of the accused based upon full conviction, founded on reasonable grounds, of the existence of state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed" (Hicks v. Faulkner (1878), Q.B.D. 167, at p. 171, Hawkins J.) This test contains both subjective and objective element. There must be both actual belief on the part of the prosecutor and that belief must be reasonable in the circumstances. The existence of reasonable and probable cause is matter for the judge to decide as opposed to the jury. [24] The appellant argues that Cst. Forrester could not have had reasonable and probable grounds to demand sample as only minutes before she was uncertain as to whether she did have reasonable or probable grounds. Thus, the subjective element in determining whether she had reasonable and probable grounds to make the demand is not present. [25] The appellant argues that the trial judge’s failure to address this missing element amounts to breach of the appellant’s rights under s.8 of the Charter resulting in an unreasonable search and seizure. As result, the Certificate of Analysis should be excluded. [26] In short, the appellant argues that Cst. Forrester’s reasonable suspicion that the accused may be impaired does not amount to reasonable and probable grounds. [27] The respondent argues that Cst. Forrester was not obliged to gather new evidence after taking the appellant to the police vehicle. Cst. Forrester was simply analysing what she had observed. By the time Cst. Forrester placed the appellant in the police vehicle and got in the vehicle herself, she analysed what she had observed and came to the conclusion that she had reasonable and probable grounds to make demand for sample of the appellant’s breath. The duty on the officer is to act reasonably under the circumstances and Cst. Forrester did so. The respondent further argues that in the event there is breach, that the breach was merely of minor technical nature. Following the Supreme Court decision of R. v. Grant, 2009 SCC 32 (CanLII), [2009] S.C.R. 353, the breath sample is minimally invasive and should not be excluded. [28] have reviewed the evidence and find that the decision of the trial judge was reasonable and supported by the evidence. It is not clear that Cst. Forrester observed the bloodshot eyes of the appellant after making the formal arrest as argued by the appellant. Cst. Forrester admitted she did not know what type of footwear the appellant was wearing. The defence made the point that if he had been wearing flip flops, that footwear may have caused him to walk awkwardly or stumble, but there was no evidence the appellant was wearing flip flops. Cst. Forrester did notice the appellant had cleft lip and considered that that may have affected his speech. [29] The trial judge was in a position to test the credibility of Cst. Forrester. In coming to his conclusion he considered the totality of the evidence. The trial judge’s conclusion is supported by the facts. Cst. Forrester’s belief was based on the observation that the appellant was driving with a flat tire and with the vehicle’s windshield wipers operating although it was a clear night, as well as all the other indicia of impairment referenced above. Even excluding the slurred speech and bloodshot eyes, the remaining indicia which Cst. Forrester observed provides ample evidence to support her belief the appellant was operating his motor vehicle while his ability to do so was impaired. The trial judge’s decision was correct. Cst. Forrester had reasonable and probable grounds to demand a sample of the appellant’s breath, and the appellant’s claim for breach of the Charter must fail. [30] The appeal is therefore dismissed. J. P.A. WHITMORE

The appellant was convicted of driving over .08 contrary to s. 253(b) of the Criminal Code. The appellant's memorandum of law and oral argument only addressed whether the police officer had reasonable and probable ground to arrest and demand his breath sample and asserted a violation of his rights pursuant to s. 8 and 9 Charter of Rights. HELD: The appeal was dismissed. The trial judge tested the officer's credibility and the judge's conclusion was supported by facts. The officer's belief was based on the observation that the appellant was driving with a flat tire, with windshield wipers operating on a clear night, as well as slurred speech and bloodshot eyes. The officer had reasonable and probable grounds to demand a sample of the appellant's breath.

d_2012skqb237.txt

Q.B. A.D. 1997 No. 929 J.C. S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: ROYAL BANK OF CANADA PLAINTIFF (DEFENDANT BY COUNTER-CLAIM) and RONALD COMPAIN DEFENDANT (PLAINTIFF BY COUNTER-CLAIM) G.A. Richards for the Royal Bank of Canada G.M. Currie for Ronald Compain JUDGMENT ZARZECZNY J. March 29, 1999 [1] In January of 1993 Ronald Compain ("Mr. Compain") sustained severe injuries in an automobile accident. As result of these injuries he was unable to work in the construction industry where he was employed prior to the accident. Although his wife Jayne continued to work during his period of disability, Mr. Compain's inability to work resulted in reduction of the family's income, particularly after Saskatchewan Government Insurance ("SGI") weekly disability benefits were exhausted. [2] The Compain's banked with the plaintiff, Royal Bank of Canada ("Royal Bank"), and at the time of the accident the Compain's were indebted to the Royal Bank under Royal Bank Credit Line and Visa credit card account (the "Bank Loans"). [3] Mr. and Mrs. Compain had other debts and while Mr. Compain was receiving the proceeds of SGI weekly disability benefits they maintained their various loans including the Bank Loans in good standing. After the weekly SGI disability benefits were terminated, the Bank Loans fell into default. The Royal Bank reported the particulars of these loan defaults to Equifax Canada ("Equifax"), credit reporting agency. [4] As result of negotiations between the solicitors for the Royal Bank and the Compains, the Royal Bank agreed to defer commencement of any action with respect to the defaulted Bank Loans until such time as Mr. Compain received an accident injury settlement from SGI. The Royal Bank requested a written assignment of those settlement proceeds, however, Mr. Compain declined to give an assignment. [5] Mr. Compain received his settlement. He had in the meantime, however, become aware of the Equifax credit report and through his solicitor insisted that the Royal Bank direct Equifax to eliminate any references to Mr. Compain's default or delinquency upon the Bank Loans. The Royal Bank replied that the were unable to direct Equifax to do so, however, they were in a position to require Equifax to put an explanatory note on their credit report confirming that the arrears and default were generated as a result of Mr. Compain's automobile accident, that he had undertaken to pay the Royal Bank from the proceeds of the accident settlement and once the loans were paid out that Mr. Compain had complied with his undertaking to the Royal Bank and settled his debt. [6] This was not acceptable to Mr. Compain with the result that he refused to pay his loans. The Royal Bank commenced this legal action for payment. The Compain's defended and counter-claimed against the Royal Bank for breach of the bank's duty of good faith, duty of confidentiality and by an amendment application made at trial, and allowed by this judgment, breach of contract. [7] At trial the Royal Bank's claim was admitted leaving to be tried the matter of the Compain's counter-claim against the Royal Bank for general, punitive, exemplary and aggravated damages. ISSUES 1. Did the Royal Bank of Canada breach its lending contract, its fiduciary duty or its duty of confidentiality to Ronald Compain? 2. If the Royal Bank of Canada is found liable for a breach of contract, fiduciary duty or duty of confidentiality what damages, if any, are appropriately awarded against the Royal Bank in favour of Mr. Compain? [8] Counsel for Mr. Compain asserted that it was breach of the Royal Bank's duty of confidentiality to Mr. Compain for it to have released to Equifax the information that it did. [9] It has been generally accepted that the contract between bank and its customer includes an implied term prohibiting the bank from disclosing information concerning the customer's financial affairs. (See: Canadian Imperial Bank of Commerce v. Sayani, 1993 CanLII 937 (BC CA), [1994] W.W.R. 260 (B.C.C.A.); Murano v. Bank of Montreal (1995), 1995 CanLII 7410 (ON SC), 31 C.B.R. (3d) (Ont. C.J.), affm. (1998), 1998 CanLII 5633 (ON CA), 163 D.L.R. (4th) 21 (Ont. C.A.)) These cases and cases similar adopt and follow the principles outlined by the English Court of Appeal in the case of Tournier v. National Provincial Union Bank (1921) K.B. 461 (C.A.) wherein Bankes L.J. at p. 473 enumerated four exceptions to the confidentiality obligation of the bank to its customers, namely: (a) Where disclosure is under compulsion by law; (b) Where there is duty to the public to disclose; (c) Where the interests of the bank require disclosure; (d) Where the disclosure is made by the express or implied consent of the customer. [Emphasis added] [10] During the cross-examination of Mr. Compain at trial, counsel for the Royal Bank produced the personal credit line agreement signed by both Mr. and Mrs. Compain May 30, 1990, when they applied for the credit line. Paragraph of that agreement under the heading CREDIT INFORMATION provides as follows: CREDIT INFORMATION: authorize and consent to the receipt and exchange of credit information about me by you from time to time, including the sharing and exchange of credit information about me with any credit reporting agency and credit bureau or any person or corporation with whom have or may have financial relations. [11] Although there was some argument as to whether or not this or some other credit agreement formed the basis for the credit and loan presently sued upon, no other credit agreement was produced by either party to suggest that an agreement other than the one referred to and marked as Exhibit P-3 existed. [12] have concluded that it was this credit line agreement which formed the basis of the agreement between Mr. and Mrs. Compain and the Royal Bank. Paragraph of the clause quoted clearly meets the "express or implied consent of the customer" enumerated exception in the Tournier case (whose principles were adopted in Canada in the CIBC and Murano cases). [13] I conclude that Mr. Compain expressly waived any contractual rights which he impliedly had to confidentiality of his credit information. By the provisions of paragraph 8 of the Personal Credit Line Agreement he authorized the Royal Bank to release to Equifax the information which it did. This part of Mr. Compain's claim against the Royal Bank is dismissed. [14] In the alternative, Mr. Compain claims that even if the Royal Bank was authorized to release credit information to Equifax nevertheless the information as it was reported by the Royal Bank to Equifax and as it was subsequently reported by Equifax in its credit report breached the Royal Bank's contractual or otherwise legal duty to him of fairness and/or good faith. These arguments were based upon the principles established by the cases of Warrington v. Great-West Life Assurance Co., 1995 CanLII 16126 (BC SC), [1995] W.W.R. 428 (B.C.S.C.); Frederikson v. I.C.B.C., 1990 CanLII 3814 (BC SC), [1990] W.W.R. 637 (B.C.S.C.); Shea v. Manitoba Public Insurance Corp. (1991), 1991 CanLII 616 (BC SC), 55 B.C.L.R. (2d) 15 (B.C.S.C.); Adams v. Confederation Life Insurance Co., 1994 CanLII 9244 (AB QB), [1994] W.W.R. 662 (Alta Q.B.); and Wallace v. United Grain Growers Ltd., 1997 CanLII 332 (SCC), [1997] S.C.R. 701. [15] The bulk of these cases deal with the issue of implied or express contractual or fiduciary obligations of insurance companies to their insureds (excepting for the Wallace case which deals with the question of an employer's obligation to an employee in the context of dismissal). Nevertheless, counsel argued that the principles established by these cases applied, by analogy, to the relationship between bank and its borrowing customer. [16] am not satisfied that the analogy is complete or indeed even appropriate as suggested by counsel for Mr. Compain. Assuming, without deciding the point, that banks, much like an insurance company dealing with insureds, do have a duty of good faith and fair dealing towards their customers, I nevertheless conclude, based upon the facts and evidence proven at trial, that the Royal Bank did not breach such duties in their dealings with Mr. Compain. [17] Counsel for Mr. Compain argues that the Royal Bank did not act fairly or in good faith by reporting to Equifax his default or delinquency upon the two loans in all of the circumstances. He argues that the Royal Bank was well aware of his inability to work as result of his accident injuries and his undertaking to pay the loans in full from the accident proceeds. In these circumstances for the Royal Bank to report his default and delinquencies to credit reporting agency constituted bad faith and lack of fair dealing. [18] The Royal Bank argues in reply that all that it did was report an objective state of facts and circumstances to Equifax, namely; that Mr. Compain was in default of his payment obligations on these two loans. As result, in banking terms, the two loans were delinquent. At no time during the discussions between counsel for the Royal Bank and Mr. Compain (nor in any of the exchange of correspondence between them) did the Royal Bank undertake not to make any or its regular reports to Equifax with respect to Mr. Compain nor was such an undertaking ever requested on his behalf. Indeed, there was no suggestion that Mr. Compain was even aware of these reports until at or about the time that he received or expected to receive the accident settlement proceeds. have concluded from all of these facts and circumstances that the Royal Bank did not act in bad faith or in breach of its fiduciary or contractual obligation towards Mr. Compain in making the reports which it did to Equifax. [19] Mr. Compain specifically authorized the Royal Bank to provide credit agencies information with respect to his accounts. That is exactly what the Royal Bank did in this case. The Royal Bank's good faith and fair dealing with Mr. Compain is evidenced by the Royal Bank's acceptance of Mr. Compain's undertaking to pay the Royal Bank from the proceeds of his accident settlement even though the Royal Bank's reasonable request to provide written assignment of those proceeds was rejected by Mr. Compain. The Royal Bank agreed to forebear in its rights to commence legal action upon the loan defaults until such time as Mr. Compain settled his personal injury action. The action of the Royal Bank to enforce payment of these loans was only taken after (and precipitated by) the actions of Mr. Compain in refusing to pay the loans from his accident settlement proceeds except upon unilaterally imposed condition (that the Royal Bank direct Equifax to remove all reference to the loan defaults). This, Royal Bank indicated, it could not compel Equifax to do so. [20] As final gesture of its good faith and fairness the Royal Bank offered to direct Equifax to record certain explanatory comments upon Mr. Compain's credit report. These were proposed in letter sent by the Royal Bank's counsel to Mr. Compain's counsel dated April 24, 1997, (Exhibit P-6) stating as follows: As previously advised, our client is prepared, upon receipt of payment to advise the Credit Bureau/Equifax as follows: (a) That the loans are paid in full; (b) That Mr. Compain advises that his default occurred as result of serious car accident which he suffered and that as initially promised, he paid out the loans in full as soon as he received settlement proceeds from court action relating to his accident. Mr. Compain rejected this proposal. [21] It was further argued on behalf of Mr. Compain that the specific language used by Equifax in reporting upon these loans could be subject to improper interpretation. Since the Royal Bank was the source of the information it acted carelessly or in any event in breach of its duties including contractual, good faith and fair dealing in reporting the state of the loans to Equifax in the terms it did. [22] The credit report was filed as Exhibit D-8 and to illustrate the portions complained of it reports as follows: 603BB01124 Royal Bank (306)933-3635 last reported in 10/96 rating the open account as 09, meaning bad debt, collection account or unable to locate. Balance reported: $7888.... [23] Additional details are provided both in respect of this loan and the further loan containing the same comments ("R9, meaning bad debt, collection account or unable to locate") and latter comment in error that the credit line was to limit of $10,000.00 (the actual limit was $5,000.00). Mr. Compain complains that the alternate characterization of the defaults as "a bad debt, collection account or unable to locate" might reasonably lead anyone to the inference that he "skipped town" or otherwise was not good credit risk. [24] No evidence was tendered by the Royal Bank or indeed Mr. Compain to suggest how anyone might have or did read the Equifax credit report if indeed any person did so. [25] When Mr. Compain received his accident settlement he changed bankers and applied for and obtained Visa Gold credit card. He did have some difficulty obtaining second Visa credit card for new business he had established however, with the assistance of his new banker, he did obtain second card as well. There was no suggestion that in the course of either of these new and successful credit card applications any reference was made by his new bankers to the Equifax credit report or, if so, that they had any negative impact upon his credit rating. [26] When one considers carefully the Equifax reports it is clear that an account reported as "09" means alternately bad debt, collection account or unable to locate. One or more of these circumstances might be applicable in any case. The characterization of Mr. Compain's accounts as "collection accounts" is fair, reasonable and accurate in the circumstances. The accounts were in the hands of both the Royal Bank's internal collection department and referred to its external solicitors for collection. Numerous letters between the Royal Bank's solicitors and Mr. Compain's solicitors respecting these accounts, the default and proposals for payment were exchanged and introduced as exhibits at trial. [27] There was no evidence lead to suggest that the characterization of these loans, as they appeared in the Equifax reports, were out of the normal course of business. It is fair and reasonable inference to be drawn, from all of the facts and circumstances, that persons using and relying upon the Equifax statements would be familiar with the various codes and classifications used to generate the credit report. [28] find no facts or evidence upon which an allegation of breach by the Royal Bank of its contractual obligation, duty of good faith or fair dealings occurred with respect to the nature and manner of the loan reports it issued to Equifax and which were reflected in the Equifax credit report issued. [29] find that the Royal Bank acted fairly and reasonably throughout consistent with its obligations to Mr. Compain and its general banking practices including its report to Equifax as credit reporting agency. [30] In conclusion none of the counter-claimant's claims are upheld and they are dismissed in total. The plaintiff Royal Bank will have its costs against the defendant (plaintiff by counter-claim) both with respect to the claim and counter-claim which, unless agreed, shall be taxed (pursuant to column II of the Court of Queen's Bench tariff of costs). [31] As final comment it should be noted that consistent with the finding in this judgment that the Royal Bank has throughout acted in good faith and in keeping with its contractual and fiduciary obligations towards Mr. Compain it is expected that the Royal Bank will now proceed to request Equifax to place upon Mr. Compain's credit report as appropriate commentary in the spirit of that proposed in its counsel's letter to Mr. Compain's solicitors April 24, 1997.

In issue was whether the Bank breached its lending contract, its fiduciary duty or duty of confidentiality; and if so, what damages, if any, should be awarded. The defendant's bank loans fell into default after SGI disability benefits were terminated. The Bank reported the particulars of the loan defaults to a credit reporting agency (Equifax). The defendant declined to give an assignment of any accident injury settlement he might receive from SGI and requested the bank direct Equifax to eliminate any references to his default or delinquency upon the bank loans. The bank offered to put an explanatory note on their credit report confirming the arrears were the result of the defendant's automobile accident and that he had undertaken to pay the bank from the proceeds of the accident settlement. The bank commenced this action for payment. The Compains sought general, punitive, exemplary and aggravated damages in a counterclaim for breach of the bank's duty of good faith, duty of confidentiality and breach of contract. HELD: The counterclaims were dismissed with taxed costs to the bank for both the claim and counterclaims. The bank's claim was admitted at trial. 1)Compain expressly waived any contractual rights which he had to confidentiality of his credit information by the provisions of paragraph 8 of the Personal Credit Line Agreement. The principles outlined by the English Court of appeal in Tournier enumerated four exceptions to a bank's confidentiality obligation to its customers. 2)The analogy between the insurance cases and a bank and borrowing customer was not complete or appropriate. Assuming, without deciding, that banks do have a duty of good faith and fair dealing towards their customers, the bank did not breach such duties in their dealings in this case. 3)The characterization of the accounts as collection accounts was fair, reasonable and accurate in the circumstances and were not out of the normal course of business.

d_1999canlii12581.txt

J. 2004 SKQB 62 D.I.V. A.D. 1998 No. 003884 J.C. M.J. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF MOOSE JAW BETWEEN: JANICE LEE (OVERS) PETERSEN and GARY JOSEPH OVERS RESPONDENT T.G. Graf, Q.C. for the petitioner D.M. Chow for the respondent FIAT MATHESON J. February 20, 2004 [1] When the judgment, dated December 14, 1999, was amended to provide that the primary residence of the child, Cassie, should be with her father, the question of the payment of maintenance by the mother was adjourned pending fulfilment of the requirement that the mother, Janice Petersen, produce all information relating to her ability to pay maintenance, and for her examination by the respondent to determine her income. [2] The examination has been completed, and by agreement of counsel the questions to be resolved are whether Janice Petersen has produced all relevant financial information, and whether a trial should be directed as to the amount of maintenance payable by her. FINANCIAL INFORMATION [3] When the foregoing order was made on June 4, 2003, Janice Petersen was engaged in farming enterprise with her father, who owned, or leased all of the farmlands and equipment involved in the enterprise. Janice Petersen testified that the arrangement entailed her working on the farm with her father. She would be charged 20 percent of the expenses and would receive 20 percent of the profits. [4] Janice Petersen has produced her income tax returns, prepared by her accountant. But counsel for Mr. Overs has complained that “Mrs. Petersen has no farm/cattle income or expense banking accounts of her own, she has no permit book and offers nothing to substantiate her annual income from the farming and cattle operation with her father other than her annual tax returns”. Counsel for Mr. Overs has asserted that Janice Petersen should be required to produce her father’s farming accounts. [5] It is difficult to comprehend exactly what an examination of Janice Petersen’s father’s books of account would reveal which would assist Mr. Overs in establishing that Janice Petersen has earned more income than the amount revealed in her income tax returns. Although counsel for the respondent has stated that Janice Petersen “and her family members continue to shelter financial information relevant to these proceedings”, there is not shred of evidence to support that statement. [6] It has also been submitted that the financial records of the trucking corporation, owned by Janice Petersen’s husband, should be disclosed. The reason therefor is that “counsel for Mr. Overs cannot effectively determine the amount of income that should be attributed to Mrs. Petersen from the numbered corporation”. [7] Although it has been asserted that Janice Petersen “performs significant duties for the numbered corporation but draws no income from it”, Janice Petersen testified that she devoted but one hour per month performing such duties. When one considers that the corporation owns but one truck, operated by Mr. Petersen, from which all of the income of the corporation is derived, the suggestion that income from the corporation should be imputed to Janice Petersen is nothing less then ludicrous. [8] The fact that Mr. Petersen’s income is deposited into joint account with Janice Petersen is no different than occurs in many households. Because spouses maintain joint bank account, into which the breadwinner deposits his or her earnings, does not justify imputing portion of that income to the homemaker spouse. [9] Counsel for Mr. Overs also seeks financial information relating to Mr. Petersen’s ranching operations, where the Petersens resided. Janice Petersen looked after the ranch while Mr. Petersen was operating the truck. It has been submitted that income should be imputed to Janice Petersen from the ranching operation. Whether that submission has any more merit than the other assertions by counsel for Mr. Overs need not be canvassed, because Mr. Petersen could not, because of the recession in the cattle business, continue his trucking operation from the ranch; the Petersens have moved their residence to Lloydminster. Janice Petersen is therefore not at the present time looking after the ranch nor engaged in farming with her father. [10] Neither Janice Petersen’s father, nor Mr. Petersen, are parties to these proceedings. To require them to produce their financial records, in the absence of even the slightest evidence such production would disclose anything which would in any manner assist in determining the amount of child maintenance payable by Janice Petersen, would be totally unjust. TRIAL OF THE ISSUE [11] Counsel for Mr. Overs has stated “the only way to obtain the full and complete picture of the petitioner’s income and entitlement to income on an annual basis is to hear from witnesses at viva voce hearing”. [12] On the basis of the material presently available, the only benefit which would be derived from ordering trial of the issue as to the amount of child maintenance to be paid would be to enhance counsels’ fees. The parties can ill afford such expense, and they would be poorly advised to pursue such course. [13] Both applications are dismissed, with costs to Janice Petersen in the amount of $500.00. [14] The application for calculation of the amount of child maintenance is returned to the Chamber list for March 8, 2004.

FIAT: The issue to be resolved was whether the petitioner had produced all relevant financial information in order for the Court to determine the amount of maintenance to be paid by her. HELD: The application was dismissed with costs in the amount of $500 to the petitioner. Neither the petitioner's father nor the petitioner's husband was a party to the proceedings. To require them to produce their financial records, in the absence of even the slightest evidence such production would disclose anything which would in any manner assist in determining the amount of child maintenance payable by the petitioner, would be totally unjust.

2_2004skqb62.txt

nan 1999 SKQB 268 Q.B. A.D. 1997 No. 1868 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: GEORGE BROWER and JEANNE BROWER and SUNVIEW SOLARIUMS LTD. DEFENDANTS Catherine A. Sloan for the plaintiffs Gwen V.G. Vanstone for the defendants JUDGMENT DIELSCHNEIDER J. December 24, 1999 [1] In this action the plaintiffs seek to enforce payment by the defendant of judgment for $23,396.03 in US currency awarded them by Carver County District Court, First Judicial District, in the State of Minnesota. The action is defended on the basis that the defendant was not ordinarily resident in Minnesota and, though served with notice of the action, did not appear before the Minnesota court or in any way submit to its jurisdiction. [2] In Saskatchewan the law governing the enforcement of foreign judgments in this jurisdiction is set out in The Foreign Judgments Act, R.S.S. 1978, c. F-18. See the judgment of the Saskatchewan Court of Appeal in Cardinal Couriers Ltd. v. Noyes, 1993 CanLII 6740 (SK CA), [1993] W.W.R. 704, reversing my judgment in the same action reported at 1992 CanLII 7880 (SK QB), [1992] W.W.R. 673. [3] The sections of The Foreign Judgments Act pertinent to this action are: 2. In this Act: nan (c) “foreign country” means any country other than this province, whether kingdom, empire, republic, commonwealth, state, dominion, province, territory, colony, possession or protectorate, or part thereof; 3. For the purposes of this Act, in an action in personam court of foreign country has jurisdiction in the following cases only: (a) where the defendant is, at the time of the commencement of the action, ordinarily resident in that country; (b) where the defendant, when the judgment is obtained, is carrying on business in that country and that country is province or territory of Canada; (c) where the defendant has submitted to the jurisdiction of that court: (i) by becoming plaintiff in the action; or (ii) by voluntarily appearing as defendant in the action without protest; or (iii) by having expressly or impliedly agreed to submit thereto. [4] It was not suggested before me that subsections 3(b) or (c) had application in this matter, only subsection (a) raising therefore the question whether the defendant was, at the time the action in Minnesota was commenced, ordinarily resident in that state. [5] Under subsection 3(a) the plaintiff must establish two things, namely: (1) the time of residence, that is to say, the residence of the defendant at the time of the commencement of the action, and (2) that the defendant was ordinarily resident in Minnesota at the relevant time. [6] turn first to discussion of the term “ordinarily resident” as it is used in the subsection because if the defendant was not ordinarily resident in Minnesota the question of time does not arise. [7] The term “ordinarily resident” is not defined in The Foreign Judgments Act so turn to case law for assistance. [8] In Thomson v. Minister of National Revenue, 1946 CanLII (SCC), [1946] D.L.R. 689 (S.C.C.), Mr. Justice Rand spoke of ordinary residence in these words: The gradation of degrees of time, object, intention, continuity and other relevant circumstances, shows, think, that in common parlance “residing” is not term of invariable elements, all of which must be satisfied in each instance. It is quite impossible to give it precise and inclusive definition. It is highly flexible, and its many shades of meaning vary not only in the contexts of different matters, but also in different aspects of the same matter. In one case it is satisfied by certain elements, in another by others, some common, some new. The expression “ordinarily resident” carries restricted signification, and although the first impression seems to be that of preponderance in time, the decisions on the English Act reject that view. It is held to mean residence in the course of the customary mode of life of the person concerned, and it is contrasted with special or occasional or casual residence. The general mode of life is, therefore, relevant to question of its application. In separate concurring judgment Estey J. spoke of the same term in similar words: reference to the dictionary and judicial comments upon the meaning of these terms indicates that one is “ordinarily resident” in place where in the settled routine of his life he regularly, normally or customarily lives. One “sojourns” at place where he unusually, casually or intermittently visits or stays. In the former the element of permanence; in the latter that of the temporary predominates. The difference cannot be stated in precise and definite terms, but each case must be determined after all of the relevant factors are taken into consideration, but the foregoing indicates in general way the essential difference. nan See also the judgment of my colleague McIntyre J. in Arnold v. Arnold (1998), 1998 CanLII 13372 (SK QB), 164 Sask. R. 252 (Sask. Q.B.) at 255 reversed at (1998), 1997 CanLII 9786 (SK CA), 163 Sask. R. 96 (Sask. C.A.) for reasons not applicable here. [9] The term “ordinarily resident” as it is used in subsection 3(a) must be carefully distinguished from the term “carrying on business” as this term is used in subsection (b). The statement of Ruth Sullivan in Driedger on the Construction of Statutes, Third Edition (Toronto: Butterworths, 1994) at p. 163 is apposite: It is presumed that the legislature uses language carefully and consistently so that within statute or other legislative instrument the same words have the same meaning and different words have different meanings. Another way of understanding this presumption is to say that the legislature is presumed to avoid stylistic variation. Once particular way of expressing meaning has been adopted, it is used each time that meaning is intended. Given this practice, it then makes sense to infer that where different form of expression is used, different meaning is intended. [10] The judgments in the following cases deal with the term “carrying on business”: Wilson v. Hull, 1995 ABCA 374 (CanLII), [1996] W.W.R. 244 (Alta. C.A.); Moses v. Shore Boat Builders Ltd., 1993 CanLII 2276 (BC CA), [1994] W.W.R. 112 (B.C.C.A.); Amopharm Inc. and Magypharm Inc. v. Harris Computer Corporation (1992), 1992 CanLII 7514 (ON CA), 93 D.L.R. (4th) 524 (Ont. C.A.); Davis Co. v. Dunn (1996), C.P.C. (4th) 347 (N.W.T.S.C.); 917294 Ontario Inc. v. 167644 Canada Inc. (1994), 1994 CanLII 4716 (SK QB), 119 Sask. R. 217 (Sask.Q.B.); T.D.I. Hospitality Management Consultants Inc. (c.o.b. Grande Prairie Inn) v. Browne, 1994 CanLII 10958 (MB CA), [1994] W.W.R. 153 (Man. C.A.) and Silverstar Properties Ltd. v. Veinotte, [1998] B.C.J. No. 2385 (Q.L.)(B.C.S.C.). Each case must be analysed in its own facts. [11] On the facts of this case the defendant manufactured solarium in Saskatoon, Saskatchewan which it sold to the plaintiffs in Minnesota. The plaintiffs alleged that the solarium was defective and sued the defendant and obtained the judgment in the Minnesota court which it now seeks to enforce in Saskatchewan. The defendant was served in Saskatoon with notice of the plaintiff’s claim but did not appear and defend the action or in any way submit to the jurisdiction of the Minnesota court. [12] The defences available to defendant in Saskatchewan where an action is brought to enforce foreign judgment are set out in s. of The Foreign Judgments Act: nan Where an action is brought in this province upon foreign judgment, it is sufficient defence: (a) that the original court did not have jurisdiction for the purposes of this Act; (b) that the defendant, being defendant in the original action, was not duly served with the process of the original court and did not appear, notwithstanding that he was carrying on business or was ordinarily resident in the foreign country or agreed to submit to the jurisdiction of that court; (c) that the judgment was obtained by fraud; (d) that the judgment is not final judgment; (e) that the judgment is not for sum certain in money; (f) that the judgment is for payment of penalty or sum of money due under the revenue laws of the foreign country; (g) that the judgment has been satisfied or for any other reason is not subsisting judgment; (h) that the judgment is in respect of cause of action that, for reasons of public policy or for some similar reason, would not have been entertained by the courts of this province; (i) that the proceedings in which the judgment was obtained were contrary to natural justice. [13] The defence here is that the court in Minnesota did not have jurisdiction over the defendant because at the time the action was commenced the defendant was not “ordinarily resident” in the state of Minnesota, and did not appear and surrender to its jurisdiction. [14] The defendant advertised its business in the state of Minnesota and elsewhere in the United States, and employed agents there to sell its product. In advertising its business the defendant made use of United States postal facilities and had to comply with postal regulations which required an address in the United States. In order to comply the defendant arranged for an address at 701-4th Avenue South, Suite 500, in the City of Minneapolis. An address of this nature could be understood as connoting either residential or business address. But because of the activities of the defendant in Minnesota, that is to say, its activities in sales, the logical conclusion, so it seems to me, is that it is a business address. [15] On these facts therefore it could be argued, in my view with some success, that the defendant carried on business in the state of Minnesota. The authorities have quoted support that approach. [16] The question here however is otherwise. The question is whether the defendant was ordinarily resident in the state of Minnesota. On the dicta of Rand J. and Estey J. in Thomson, supra, the question must be answered in the negative. So also on an analysis of s. of The Foreign Judgments Act. Subsection 3(a) uses the term “ordinarily resident” while subsection 3(b) uses the term “carrying on business”. The case law have reviewed convinces me there is real difference in the meaning of these terms and that the Act reflects that difference. While there may be evidence supporting the conclusion that the defendant was carrying on business in Minnesota, that same evidence does not support the conclusion that the defendant was ordinarily resident there. [17] Because the defendant was not ordinarily resident in Minnesota when the action was commenced the second factor, the time question raised in subsection 3(a) needs no further explication. [18] For these reasons the plaintiff’s action is dismissed with costs to be taxed.

The defendant manufactured solarium in Saskatoon which it sold to the plaintiffs in Minnesota. The plaintiffs alleged the solarium was defective, sued and obtained judgment in the Minnesota Court which it now sought to enforce in Saskatchewan. The defendant argued the Minnesota court did not have jurisdiction because at the time the action was commenced he was not 'ordinarily resident' in the state of Minnesota. The defendant was served in Saskatoon with notice of the claim but did not appear or defend the action or surrender to its jurisdiction. HELD: The action was dismissed with costs to be taxed. 1)The defences available to defendant in Saskatchewan where an action is brought to enforce foreign judgment are set out in s.6 of the Foreign Judgments Act. 2)While there may be evidence supporting the conclusion that the defendant was carrying on business in Minnesota, that same evidence does not support the conclusion the defendant was ordinarily resident there. The defendant advertised its business in Minnesota and elsewhere in the United States and employed agents there to sell its product. The logical conclusion was that the address in the city of Minneapolis was a business address. It could be argued that the defendant carried on business in the state of Minnesota but the question was whether the defendant was ordinarily resident in that state. The Foreign Judgments Act reflects real difference in the meaning of 'ordinarily resident' and 'carrying on business'.

e_1999skqb268.txt

NOVA SCOTIA COURT OF APPEAL Citation: Sydney Steel Corporation v. MacQueen, 2012 NSCA 78 Date: 20120719 Docket: CA 393200 Registry: Halifax Between: Sydney Steel Corporation, body corporate and The Attorney General of Nova Scotia representing Her Majesty the Queen in right of the Province of Nova Scotia v. Neila Catherine MacQueen, Joseph M. Petitpas, Ann Marie Ross, and Kathleen Iris Crawford, and The Attorney General of Canada representing Her Majesty the Queen in right of Canada Respondents Judge: The Honourable Justice Joel Fichaud Motion Heard: July 12, 2012, in Halifax, Nova Scotia, in Chambers Held: Motion for stay dismissed with costs of $1,000 in the cause of the appeal Counsel: Agnes E. MacNeil and Alison W. Campbell for the applicants (Appellants) Sydney Steel Corporation and the Attorney General of Nova Scotia Raymond F. Wagner, Michael Dull and Meaghan Gair (student) for the respondents Neila Catherine MacQueen, Joseph M. Petitpas, Ann Marie Ross and Kathleen Iris Crawford Melissa Chan for the Attorney General of Canada Reasons for judgment: [1] The Attorney General of Nova Scotia moves for stay pending the Attorney General’s appeal of certification order in class action. [2] take the background facts from Justice John Murphy’s decision that is under appeal (2011 NSSC 484 (CanLII)). [3] The Sydney Steel Works opened in 1903 and operated coke ovens and steel plant. Ms. MacQueen, Mr. Petitpas, Ms. Ross and Ms. Crawford (“plaintiffs”) owned land and lived near the Steel Works. They claim that the Steel Works’ facilities emitted lead, arsenic, PAH’s and other toxins. They sue in tort and for breach of fiduciary duty, and seek damages for their own exposure and for injury to their property and its value. The lawsuit began in 2004. Some claims against private entities were settled or abandoned. The remaining claims are against the Governments of Nova Scotia and Canada, and relate to the period between 1967 and 2000. From 1968 to 1974, Canada operated the coke ovens and Nova Scotia operated the steel plant. From 1974, Nova Scotia operated both the coke ovens and the steel plant until those facilities closed in 1988 and 2000 respectively. [4] In September 2007, the plaintiffs filed notice seeking certification as common law class proceeding. After the Class Proceedings Act, S.N.S. 2007, c. 28 (Act), came into force, the matter was continued under that Act. [5] Justice Murphy’s decision summarizes the tenor of this lawsuit: [5] During the more than seven years since this proceeding commenced, including while the certification issue has been pending, the scope of the plaintiffs' claim has been substantially reduced. The defendants have not filed notice of defence; pursuant to section 4(6) of the Act they are not required to do so until 45 days after certification order is issued, and the court dismissed plaintiffs' motion seeking earlier filing. Nevertheless, the defendants have demonstrated the intention to dispute all aspects of the claim. motion brought during 2006 to strike claims was considered by this court and by the Court of Appeal, and in written and oral submissions throughout the certification process the defendants repeatedly signalled that every cause of action advanced and remedy sought would be contested. The court has struck out claims for negligence and breach of fiduciary duty in relation to regulation of the Steel Works, and the plaintiffs have decided to narrow the claims, including by reducing the scope of negligence alleged and abandoning pursuit of some remedies, such as compensation for diminution of property value and for personal injuries. The plaintiffs continue to seek medical‑monitoring program to identify and provide information about health risks resulting from defendants' conduct, but they no longer seek damages for individual health problems. [6] Despite the statement of claim being amended approximately nine times, usually to reduce rather than expand the causes of action and remedies sought, the proceeding remains complex, with the most recent consolidated amended statement comprising more than 100 paragraphs, containing allegations of battery, strict liability and nuisance, trespass, negligence and breach of fiduciary duty. [7] The process seeking certification as class action has been complex, vigorously contested, and prolonged. The parties attended case management meetings and brought procedural motions, including defence motion concerning conducting both cross examinations and discovery of affiants, which was ultimately resolved by the Court of Appeal. [6] Section 7(1) of the Act states: Certification by the court (1) The court shall certify proceeding as class proceeding on an application under Section 4, or if, in the opinion of the court, (a) the pleadings disclose or the notice of application discloses cause of action; (b) there is an identifiable class of two or more persons that would be represented by representative party; (c) the claims of the class members raise common issue, whether or not the common issue predominates over issues affecting only individual members; (d) class proceeding would be the preferable procedure for the fair and efficient resolution of the dispute; and (e) there is representative party who (i) would fairly and adequately represent the interests of the class, (ii) has produced plan for the class proceeding that sets out workable method of advancing the class proceeding on behalf of the class and of notifying class members of the class proceeding, and (iii) does not have, with respect to the common issues, an interest that is in conflict with the interests of other class members. [7] In June 2010, the plaintiffs sought certification of the class proceeding under s. 7(1), naming of two classes: (1) persons who owned property within stated radius (“Property Owner Class”) and (2) persons who resided within that radius for minimum period after January 5, 1968 (“Residential Class”). Justice Murphy dealt with the motion through case management conferences and hearings, as discussed in his decision (paras 8-73). The judge described the outcome of that initial motion: [74] The parties were advised following the Original Motion hearing that class action would be the preferable procedure for the representative plaintiffs to advance this litigation. For the reasons which have outlined, causes of action and common issues were approved for certification, subject to suitable definition of property owner and residential classes. [8] In October 2010, the plaintiffs filed an amended motion for certification, that proposed class boundaries with reduced area but extended seven year habitation requirement for the residential class. Justice Murphy heard that motion in December 2010. His decision comments on the amended motion: [76] The parties and the court approached the December 2010 hearing as addressing an amendment to the Original Motion, not replacement for the motion which had been presented at the earlier sessions. It was, in effect, "continuation." Accordingly, the evidence from the Original Motion and the June 2010 submissions, as well as documentation filed and submissions made after that hearing, were part of the record for deliberation in December 2010. Consistent with that approach, previous evidence and submissions did not have to be repeated, and, indeed, defence counsel sometimes referred to the evidence and the plaintiffs' argument from the initial hearing to dispute the boundaries proposed in the Amended Motion. [77] The defendants continue to maintain that no aspect of the plaintiffs' claim should be certified as class action and forcefully challenge the revised class definitions and boundaries proposed in the Amended Motion. Although nothing was conceded, and they object to certification on behalf of both potential property owner and residential claimants, the defendants did not appear to seriously dispute that if, despite their objection, the proceeding on behalf of the potential claimants on whose behalf the representative plaintiffs commenced the action were to be certified, it would be appropriate to have two plaintiff classes property owner and residential. [78] It is apparent from the statement of claim and representative plaintiffs' evidence that there are differences between the causes of action and common issues advanced and the remedies sought on behalf of plaintiffs who owned property and those who did not. Subject to satisfactory definitions, the plaintiffs' proposal to establish two classes of claimants property owner and residential is reasonable and logical and will facilitate the management and advancement of the case. [79] It is also sensible, as plaintiffs propose, that the geographic boundaries for both classes be the same. There is no evidence to suggest that locations in which residents would be affected by defendants' impugned activity would differ from areas where real property would be contaminated. The defendants (while maintaining full opposition to proposed boundaries) did not specifically challenge having common boundaries for both classes, if certification were ordered. In my view, defining the same geographic boundary for each class, as plaintiffs have done in the statement of claim and motion, is necessary to facilitate introduction of evidence and administration of the proceeding. [9] The judge’s decision (paras 80-124) then discussed the evidence and the parties’ positions and reached conclusions on the area boundaries of both the Property Owner and Residential Classes, and the temporal limit of the Residential Class. [10] The judge (paras 125-27) approved “in principle” the proposed litigation plan for the class proceeding, but suggested that the case management process be used to fine tune its procedural, scheduling and logistical features. [11] The judge concluded: [129] The plaintiffs’ amended motion for certification is accordingly granted, with the revisions reflected in these reasons. [12] Justice Murphy’s Order, embodying his decision, was issued on May 1, 2012. [13] On May 15, 2012, the Attorney General of Nova Scotia (“Province”) appealed. The Province challenges the judge’s finding that some causes of action were viable, his definition of the classes and conclusions as to commonality. The Province requests the Court of Appeal to deny any certification of class proceeding. [14] By separate notice of appeal (CA 392560), the Attorney General of Canada also appealed, and requested that certification of the class proceeding be denied. The Attorney General of Canada made no motion for stay, and observed but did not actively participate in the Province’s motion for stay. [15] The appeals are scheduled for hearing in March 2013. [16] On June 8, 2012, the Province moved for stay of Justice Murphy’s certification order. That stay effectively would suspend the class proceedings in the Supreme Court of Nova Scotia, pending the outcome of the Province’s appeal. heard that motion on July 12, 2012. The Test for Stay [17] Rules 90.41(1) and (2) say: 90.41 (1) The filing of notice of appeal shall not operate as stay of execution or enforcement of the judgment appealed from. (2) judge of the Court of Appeal on application of party to an appeal may, pending disposition of the appeal, order stayed the execution and enforcement of any judgment appealed from or grant such other relief against such judgment or order, on such terms as may be just. [18] The tests under Rule 90.41(2) remains those stated by Justice Hallett in Fulton Insurance Agencies Ltd. v. Purdy (1990), 1990 CanLII 2357 (NS CA), 100 N.S.R. (2d) 341, paras 28-30, under the former Rule 62.10(2). The applicant for stay must show that either: (1) there is an arguable appeal, and denial of the stay would cause him irreparable harm and the balance of convenience favours stay, or (2) there are exceptional circumstances making it just that stay be granted: Molloy v. Molloy, 2012 NSCA 28 (CanLII), para 11, and cases there cited. Fulton’s Primary Test [19] Much of counsel’s effort on the motion related to the merits of the Province’s challenge to the denominators of commonality for the definition of the classes. On stay motion, there is low bar for arguability. I accept that the Province’s grounds of appeal are arguable on their face. will not analyse the fine points of the Province’s submissions or the respondents’ reply. Those are merits issues for the panel on the appeal proper. [20] will turn to irreparable harm. As stated in Halifax (Regional Municipality) v. Casey, 2011 NSCA 69 (CanLII): [41] An applicant for stay must prove irreparable harm by evidence. General conclusory statements are insufficient: Myatt v. Myatt, 2004 NSCA 124 (CanLII), para 10, and cases there cited; Gill v. Hurst, 2010 NSCA 104 (CanLII), para 12. To similar effect C.B. v. T.M., 2012 NSCA 75 (CanLII), para 13. [21] The Province’s brief for this motion submits that denial of stay would cause two categories of irreparable harm: ... In this instance, the AGNS submits there are two elements which raise the issue of irreparable harm. One is the likelihood that the plaintiffs would not be in position to pay for the costs of the litigation leading up to the common issues trial in circumstances where the common issues set for trial may change significantly. The second is the confusion that the public might feel if the litigation of the common issues as currently stated proceeds to the common issues trial, should the appeal change the issues set for trial or significantly reduce the scope of the litigation. [22] The hearing of the appeal is scheduled for March 2013, meaning that, in the normal course, decision from the Court would be expected by mid to late spring of 2013. [23] The question for me is If there is no stay and if the Province’s appeal succeeds, would the course of the class proceedings in the Supreme Court, between today and late spring of 2013, cause irreparable harm in one of the two manners identified in the Province’s brief? [24] In my respectful view, the answer is No. will address the Province’s two categories of irreparable harm. [25] The Province’s first suggested category of irreparable harm is that “the plaintiffs would not be in position to pay for the costs of the litigation”. The Province’s submission assumes that: (1) the Province would succeed on the appeal; (2) between today and the release of the Court of Appeal’s decision, the Province would incur expense to defend the class proceeding additional to those expenses that the Province would have to pay anyway to respond to whatever claims would survive or emanate from the Court of Appeal’s decision; (3) the plaintiffs would be ordered to pay the Province’s additional costs; and (4) the plaintiffs would be unable to satisfy that judgment. [26] will discuss those assumptions. My concerns are with the second and fourth. [27] I said earlier that, for the purpose of this motion, the Province has an arguable appeal. On that basis, accept the Province’s first assumption. [28] It is premature to comment on the merits of the third assumption. The point is not capable of proof by the Province at this stage. For the purpose of this motion, will assume that, if the class proceeding fails, the Province will be entitled to an award of costs. [29] have two concerns with the Province’s second assumption. (a) This appeal does not involve a summary judgment motion that would dismiss the claims outright, in any form, against the Province. Rather, the appeal seeks to strike the Certification Order for common issues trial in class proceeding. The Province’s Notice of Appeal requests that “certification be denied”. If the Certification Order is struck, the Province will still face individual claims, first filed in 2004, involving similar issues. The expense of defending individual claims, whether litigated serially or jointly, might exceed the expense of defending common issues trial in class proceeding. One purpose of class proceeding is to try common issues once, instead of repeatedly, which delivers an expense efficiency to both sides. If the class certification is struck, that efficiency may be sacrificed. On the other hand, that efficiency may be inapplicable to these claims. am in no position to assess whether it is one or the other. The Province has offered no evidence on the point that establishes how defending individual actions would cost the Province less than defending one common issues trial. (b) am not satisfied that the Province will incur any substantially higher expenses between today and the release of the Court of Appeal’s decision. Under the litigation plan that Justice Murphy’s decision approved in principle, the next ten months would involve the completion of the pleadings, the exchange of documents and (after documents are exchanged) the discovery of the parties. There is no evidence to estimate, in any quantum I can grapple with, how the Province would incur expenses for its pleading or document disclosure that would be significantly higher because of points that are in issue on the appeal. The initial claim was filed in 2004. It is reasonable to assume that, over the ensuing eight years up to today, the Province has made significant progress toward drafting its Defence and accumulating its documents. If that assumption is accurate, then there may not remain significant level of marginal expense for pleading and accumulation of documents. If that assumption is mistaken, then the Province’s recourse is to seek permission to revise the milestones in the litigation plan, regardless of this appeal. That permission should be addressed directly with Justice Murphy in the case management of the Supreme Court litigation, not as side effect of stay from the Court of Appeal. The parties would be discovered whether there is common issues trial, under certification, or individual claims by those parties. It is true that the outcome of the appeal may affect lines of questioning. But have no evidence how that factor affects the Province’s marginal expense of conducting discoveries. If am to issue stay based on the Province’s costs as irreparable harm, need reliable indication of what remains to be done during the stay period, what component of that residue would be wasted if the Province’s appeal is allowed, and some estimate of that cost. There is no evidence on these points. Vague and conclusory statements of counsel, without evidence, do not establish the prerequisites for stay of an enforceable Order of the Supreme Court. [30] Neither has the Province established its fourth assumption that the Plaintiffs would be unable to satisfy costs award for any such additional expenses. The Province tendered, as evidence of the Plaintiffs’ financial condition, an affidavit of Ms. Laverne Gleeson, paralegal with the Provincial Department of Justice. Ms. Gleeson performed online searches of the realty owned by the named representative plaintiffs, and summarized the result in Exhibit to Ms. Gleeson’s affidavit. Exhibit lists nine properties, with columns entitled “Appraised Value (2012 Residential Taxable)” and “Mortgage Amount”. Ms. Gleeson’s affidavit says that the “Appraised Value” is the municipal assessment. The last six properties on the List in Exhibit show cumulative “Appraised Value”, or assessment, of $373,400, with no unreleased mortgages. take this as evidence of equity totalling $373,400 that is available for execution to satisfy hypothetical judgment to the Province for the Province’s litigation expenses. This amount does not include any other assets of the Plaintiffs, or their employment income, that would be available to satisfy judgment. [31] There is nothing in the evidence for this motion to suggest that, if the stay is denied and the Province later succeeds on the appeal, the Province would have incurred additional, wasted and taxable litigation expense that exceeds the plaintiffs’ proven equity $373,400. The Province has not met its onus to establish the first category of its suggested irreparable harm. [32] The Province’s second suggested category or irreparable harm (above para 21) is that the public would “feel confusion” if the Certification Order’s premise for the pre-trial procedures is changed by the Court of Appeal. [33] Section 22 of the Act says: (1) Subject to subsection (2), notice that proceeding has been certified as class proceeding must be given by the representative party for the class to the class members in accordance with this Section. (3) Subject to subsection (2), the court shall make an order setting out when and by what means notice is to be given under this Section ... [34] Justice Murphy’s Certification Order of May 1, 2012, paras 12-13, provides for publication of the Notice of Certification. The form of Notice, in Schedule “C” to the Order, describes the Property Owner and Residential Classes and states: Members of the Property Owner and Residential Classes who want to participate in the class action are automatically included and need not do anything at this time. Each Class Member will be bound by the terms of any judgment or settlement and will not be allowed to prosecute an independent action. If the class action is successful, he or she may be entitled to share in the amount of any award or remedy recovered. If unsuccessful, claims of all Class Members will be barred. You must opt out if you do not want to participate in the class action. Class Members who do not want to participate in the class action must opt out. If you want to opt out of the class action, you must send written, signed election, including your name, address, telephone number to: WAGNERS. No Class Member will be permitted to opt out of the class action unless the election to opt out is received by WAGNERS before [DATE]. [emphasis in the Notice] [35] The Certification Order states: 15. The Notice Program shall be implemented on date to be fixed by the Court upon the approval of the Notice. [36] understand from counsel that Justice Murphy has not yet fixed date for implementation of the Notice Program under para 15 of the Order, and that likely the date will not be fixed until after the Court of Appeal has issued its decision on these appeals. [37] If the Notice was published now, then there would be potential for prejudicial confusion. For instance, the Court of Appeal might change the class definitions, which might necessitate second correcting Notice. But, as understand it, the judge sensibly intends that there will be only one Notice, published after the Court of Appeal’s decision. Given that premise, there is no evidence of any confusion that would irreparably affect the progress of the litigation. [38] If the Province succeeds in its appeal, the public would observe decision of lower court altered by an appeal court. That is par for the course of appellate litigation, not irreparable harm. [39] The Province has not proven irreparable harm. It is unnecessary to consider the balance of convenience. There is no basis for stay under Fulton’s primary test. Fulton’s Secondary Test [40] There is no exceptional circumstance making it just that stay be granted, under Fulton’s secondary test. [41] The litigation began in 2004, before its conversion to class proceeding several years later. There is no imperative of justice that, eight years onward, would further defer the progress of pretrial disclosure and discovery. Civil Procedure Rule 1.01 says that the “Object of these Rules” is for “the just, speedy, and inexpensive determination of every proceeding”. The Rules assume that at some opportune moment in my view, before the passage of eight years the tale should mature from plot development to climax, and the preparation should culminate in trial. Conclusion [42] I dismiss the motion for a stay. quantify the costs of the motion at $1,000, to be payable in the cause of the appeal. Fichaud, J.A.

, motion denied. While the province has an arguable appeal, it does not concern a summary judgment motion that would result in the claims being dismissed outright. If the certification order is struck, the province will still face individual claims. The AG has not shown that defending individual actions will cost less than defending one class proceeding. There is no evidence to estimate how it may incur significantly higher expenses as a result of how the points at issue in the appeal are resolved. The matter has been ongoing for some time and it is reasonable to expect the province has already spent time and money to prepare the defence they will eventually file. To succeed on this basis, the court would require a reliable indication of what remains to be done during the stay period, what component of that residue would be wasted if the appeal is allowed, and some estimate of that cost.

c_2012nsca78.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2006 SKQB 462 Date: 20061013 Docket: Q.B.G. No. 655/2006 Judicial Centre: Saskatoon IN THE MATTER OF AN APPLICATION UNDER SECTIONS 135 AND 225 OF THE NON-PROFIT CORPORATIONS ACT, 1995, S.S. 1995, c. N-4.2 BETWEEN: ROBIN MOWAT and UNIVERSITY OF SASKATCHEWAN STUDENTS’ UNION and THE CANADIAN FEDERATION OF STUDENTS and THE CANADIAN FEDERATION OF STUDENTS-SERVICES ADDED RESPONDENTS Counsel: J. Pereira and M. Alexandre for the applicant G. J. Scharfstein, Q.C. and S. Buhler for the respondent T. J. Burke and A. McKennan for the added respondents FIAT R. S. SMITH J. October 13, 2006 Introduction 1) In October, 2005 referendum was held within the student body of the University of Saskatchewan to determine if the University of Saskatchewan Students Union should join The Canadian Federation of Students and its related corporation, The Canadian Federation of Students-Services. The result favoured joining the federation. 2) The applicant applies under The Non-Profit Corporations Act, 1995, S.S. 1995, c. N-4.2 (“Act”) seeking sundry relief, the net result of which would set aside the outcome of the referendum. 3) The Canadian Federation of Students (“CFS”) is federal non-share capital non-profit corporation which, among other things, advocates on behalf of university students across Canada. Its affiliated corporation, The Canadian Federation of Students-Services (“CFS-S”) is federal non-share capital non-profit corporation. CFS-S assists students by pooling resources in order to provide range of services and benefits. 4) In or about November, 2004, the executive council of the University of Saskatchewan Students Union (“USC”) passed motion which authorized USC to take steps on behalf of the University of Saskatchewan Students Union (“USSU”) to become member of CFS and CFS-S (hereinafter collectively “CFS”). After initial interaction between USC and CFS, USSU was awarded prospective membership and advised that in order to achieve full membership in CFS it was necessary for the USSU to conduct referendum within its student body. 5) Under the CFS constitution, any organization wishing to join it must hold referendum in accordance with CFS rules and procedures for referenda. This is somewhat anomalous as the USSU, as long-standing organization, had its own rules and procedures for referenda. The existence of two protocols for referenda would prove to be an issue as events unfolded. 6) The CFS referendum procedure required the creation of Referendum Oversight Committee (“ROC”) which consists of two members appointed by CFS, in effect, their organizers. The balance of the ROC is made up of two members from the local student organization, in this case, the USSU. 7) The USC was also aware that referendum was necessary under its own rules. The USSU constitution, specifically Article 11, requires referendum for the purpose of establishing or eliminating dedicated student fee. As membership in CFS exacted $9.00 per annum fee from each student, the USSU’s own constitution mandated referendum on the question. 8) The USSU had also adopted, as part of its general governance, an elections and referenda policy. That policy sets out the rules respecting the conduct of referendum such as notice, campaign registrations, spending limits and the like. 9) In early September, 2005, the USC appointed its representatives to the ROC which held its first meeting on September 11, 2005. Within few days thereafter, the USC met and passed motion declaring it was in support of the referendum to join the CFS. However, it was clear at that USC meeting that there was not unanimity among the council members regarding the question. 10) At September 22, 2005 meeting, members of the USC became alive to the issue that there were operational conflicts between the USSU elections and referenda policy and the rules dictated by CSF. In particular, the USSU’s elections and referenda policy did not contemplate the creation of an ROC. 11) There was some discussion about changing the USSU elections and referenda policy in order to give authority to the ROC for the purpose of the specific referendum dealing with CFS. In the end, the debate was postponed until September 29, 2005. 12) The USC benefited from legal advice and resolved on September 29 to take steps to meld the USSU’s elections and referenda policy and those procedures mandated by CSF. Specifically, the USC voted to amend the USSU elections and referenda policy by providing new section which read: In Referenda to federate in the CFS, the Oversight Committee shall have the authority over the Referendum. The CRO [chief returning officer] and ACRO [assistant chief returning officer] shall act as USSU Representatives on the Oversight Committee and that the Elections Board must ratify the results of this referendum. 13) The Elections Board is an entity that existed within the elections and referenda policy of the USSU governance documents. Extracts from that policy germane to the Elections Board and the debate at bar are: IV. REFERENDA 1. Elections Board shall have authority over the activities of the USSU membership as they relate to referenda. ... V. ELECTIONS OFFICIALS ELECTIONS BOARD 1. EB shall exist as outlined in Article 10 of USSU Bylaw 1: Governance Procedures. 2. The EB shall be responsible for the following: (i) Conducting elections and referenda as outlined in Article and Article 11 of the USSU Constitution and Article 10 of USSU Bylaw 1: Governance Procedures; (ii) Being knowledgable [sic] about other procedures and policies necessary for proper election; (iii) Interpreting and enforcing the Elections and Referenda Policy as it pertains to all members of the USSU; (iv) Appointing DROs; and, (v) Presiding over the vote-counting mechanism and election data. ... VII. VIOLATIONS COMPLAINTS 1. All violations of election procedures, arising from the first day of campaigning up to the date of the final ballot count shall be investigated by the CRO and dealt with by the EB. 2. Prior to the start of campaigning, the EB will create schedule for election violations and discretionary punishment of violations such that will standarise the process. 3. The Elections Board has the right to disqualify candidate, if it deems that this is an appropriate punishment for violations committed by the candidate. 4. All complaints arising out of any election must be submitted in writing to the USSU office, within five (5) days immediately following the date of the final ballot count. Each complaint shall be dealt with by the EB, which may declare any election invalid and shall be empowered to take such steps, as it deems necessary. 5. In the event of any discrepancies, the EB is considered to be the ultimate decision making authority. All disputes and/or complaints must be submitted in writing, and no member outside of this body is permitted to enforce policy or procedure. 6. Registered campaign committees shall be liable for any campaign violations, however they occur. Likewise, the said campaign committee is also responsible for any actions of any individual or group working on behalf of the campaign committee. 14) Accordingly, by September 29, 2005, approximately week before the referendum was to be held, the USC was confident it had appropriately fused the referenda procedure of the USSU and the CFS. 15) The ROC created protocol regarding the referendum, although, in fairness, the document was being drafted “on the fly”. Changes and additions were being made from time to time respecting the procedure for the referendum. The evidence is somewhat unclear, however, it would appear that the final protocol for the referendum was not settled until December 3, 2005, well over month after the vote. 16) Notwithstanding the issues confronting the USC over the governance documents respecting the referendum, it is clear from the material that within the student body the debate was lively and active, at least from September 19 forward. conclude that any student who was interested had available to him or her significant exposure to both sides of the issue. 17) The referendum was scheduled to be held on October 4, and 6, 2005. It is worth noting that the question on the ballot read: “Are you in favour of membership in Canadian Federation of Students?” The fact that the ballot lacked reference to the requirement of an annual fee is part of the cafeteria of wrongs alleged by the applicant in the conduct of the referendum by USC and CFS through its creation, the ROC. 18) As Article 11 of the USSU constitution mandates referendum when establishing dedicated student fee, it is, in my opinion, somewhat anomalous that the referendum question would not reference the fact of such fee. 19) The results of the referendum were: 1,968 in favour of federating with CFS; 1,584 against federating with CFS; 10 spoiled ballots. 20) The voter turnout for the referendum was approximately 20% of the student body. In the affidavits filed on behalf of USC, it is suggested that this is higher than usual turnout as 15% is the norm for USSU general elections. 21) For those members of the student body engaged in the debate of whether to federate with CFS, passions ran high. Throughout the course of the campaign there was considerable sturm und drang. After the referendum, the ROC met and considered smorgasbord of complaints each side had about the other and of the ROC itself. The ROC concluded: The members of the Referendum Oversight Committee are satisfied that the referendum results are an accurate reflection of the will of the members of the University of Saskatchewan Students Union. 22) However, the report of the ROC was not the end of the matter. The September 29, 2005 resolution of the USC required that the Elections Board must ratify the results of the referendum. The Elections Board received and considered the report of the ROC and then set about its independent task of reviewing what transpired through the course of the referendum. The relevant portions of its report are taken from Exhibit “CC” to the Affidavit of Lucy Watson. It sets out, in part: As body created under the USSU Bylaw No. 1: Governance Procedures, the Elections Board (EB) normally is empowered to ensure that the USSU bylaws and policies are met in conducting referendum or an election. In this case, the EB was given the task of ratifying the CFS membership referendum results. The USSU had indicated its support for students’ approving of becoming full members of the CFS. Nevertheless, the EB has found that it could not ratify the result, given what it sees as seriously flawed referendum process.... In its assessment, the EB’s underlying concern has been whether any issues in relation to the process would have significantly affected the will of voters. It restricted its considerations to the process, even though there were issues relating to campaign conduct. This report is also complemented by the documents “Elections Board’s Ratification Discussion Paper” and “EB Analysis of key concerns in the Referendum Process”. These reflect respectively (a) the Process Document crafted by the EB that guided its analysis of the Referendum process and (b) the EB’s deliberations based on the Discussion Paper. After the EB’s deliberations, it further considered whether each key concern would have significantly affected the will of voters. In terms of the process, this report only highlights the key issues which the EB believed would have significantly affected the will of voters: (1) the lack of preparation or groundwork prior to establishing the ROC, (2) the fact that there was no specific call for campaign teams to register, (3) the evolving nature of the ROC Protocol, the fundamental document which was to determine the “ground rules” for campaigning and for the complaints process. 23) Although the Elections Board refused to ratify the referendum result, it did recommend that another referendum be held with ground rules that were better settled and broadly disseminated. 24) The decision of the Elections Board came before the USC on February 9, 2006. The USC decided to canvass the matter with their solicitor and again addressed the matter at the USC meeting on March 30, 2006. The minutes of that meeting clearly demonstrate that much of what was worrying the USC were the legal consequences of not ratifying the vote. 25) In the end, the USC decided to ignore the protocol it had established for the referendum and dismissed the decision of the Elections Board. It then substituted its own judgment and ratified the referendum. In due course CFS was advised and at that juncture both USC and CFS assumed the table had been set for the USSU to become part of CFS federation. 26) The applicant, student in his final year at the University during the 2005/2006 academic year, took considerable umbrage at the conduct of the USC, CFS and ROC in relation to the referendum. In May, 2006, he brought an application under the Act. The notice of motion, as amended, sought the following relief: 1. An order pursuant to s. 135(2)(b) of The Non-Profit Corporations Act, 1995 declaring the referendum deciding the question, “Are you in favour of membership in the Canadian Federation of Students?” held at the University of Saskatchewan between October and 6, 2005 invalid. 2. An order pursuant to s. 135(2)(a) of The Non-Profit Corporations Act, 1995 restraining the University of Saskatchewan Student’s Union from joining the Canadian Federation of Students until the above noted issue is determined. 3. Or in the alternative, an order pursuant to s. 135(2)(c) of The Non-Profit Corporations Act, 1995 requiring new referendum be held in compliance with the University of Saskatchewan Student’s Union Election Protocol and further declaring that any ceding of referendum organizing authority or oversight to an external third party with direct, material financial interest in the outcome of the referendum is in violation of the University of Saskatchewan Students’ Union Constitution and Election and Refenda [sic] Policy. 4. Or further in the alternative, an order pursuant to s. 225(2)(a) of The Non-Profit Corporations Act, 1995 restraining the University of Saskatchewan’s Student Union from joining and/or participating as member of the Canadian Federation of Students until the validity of the referendum is determined. 27) At the hearing of the matter, the motion was further amended to include relief under s. 225(1) of the Act seeking an order declaring the referendum to be of no force or effect. 28) The motion brought by the applicant joined only the USSU as respondent. The CFS brought its own motion asking that CFS (meaning CFS and CFS-S) be joined as parties to the application. The CFS also sought an order permitting it to cross-examine the applicant, Robin Mowat. There was also the inevitable applications by all the parties applying to strike portions of affidavits submitted on behalf of others because they were scandalous, argumentative or irrelevant. 29) number of the applications were dealt with on preliminary and very summary basis. After modest argument, ordered that the CFS be added as party respondent to the application. Rule 39 of The Queen’s Bench Rules of Court governs the situation and provides: 39 Where person who is not party claims: (a) an interest in the subject matter of the action; (b) that he may be adversely affected by judgment in the action; or (c) that there exists between him and one or more of the parties question of law or fact in common with question in issue in the action; he may apply to be added as party, and the court may add the person as party and may give such directions and impose such conditions or make such order as may seem just. 30) There is no question CFS had an interest in the subject matter and could be adversely affected by the judgment. In my view, it would be counterintuitive not to add CFS as party to the application. 31) dismissed the application by CFS to cross-examine the applicant, Robin Mowat. In this jurisdiction such relief is discretionary. concluded that there was nothing Mr. Mowat could add in cross-examination that would assist in the resolution of the issue. The burden lies on the party seeking the right to cross-examine to show the examination will assist in resolving the issue before the chambers judge. That bar was not cleared. 32) With respect to the applications to strike the offending portions of the affidavits, conclude, as result of my analysis on the larger question, it is not necessary to address those complaints. 33) The substantive issues distill to: (i) Does Robin Mowat have standing under ss. 135 or 225 of The Non-Profit Corporations Act, 1995 (“Act”) to bring the within application? (ii) If the applicant does have standing, is he entitled to the relief sought? Applicant’s standing 34) Section 135 of the Act reads: 135(1) corporation or member or director may apply to the court to determine any controversy respecting an election or the appointment of director or an auditor of the corporation. (2) On an application pursuant to this section, the court may make any order it considers appropriate, including: (a) an order restraining director or auditor whose election or appointment is challenged from acting pending determination of the dispute; (b) an order declaring the result of the disputed election or appointment; (c) an order requiring new election or appointment and including directions for the management of the activities and affairs of the corporation until new election is held or appointment made; (d) an order determining the voting rights of members and of persons claiming to have membership interests. 35) Other relevant sections from the Act are in Division XVIII Remedies, Offences and Penalties. Those portions which are germane are: 222 In this Division: ... “complainant means” (a) member or registered holder or beneficial owner, and former registered holder or beneficial owner, of security of corporation or any of its affiliates; (b) director or an officer or former director or officer of corporation or of any of its affiliates; (c) the Director; or (d) any other person who, in the discretion of the court, is proper person to make any application pursuant to this Division. 225(1) complainant may apply to the court for an order pursuant to this section and the court may make an order to rectify the matters complained of where the court is satisfied that the result of any act or omission of the corporation or any of its affiliates, the manner in which any of the activities or affairs of the corporation or any of its affiliates are or have been carried on or conducted, or the manner in which the powers of the directors of the corporation or any of its affiliates are or have been exercised: (a) is oppressive or unfairly prejudicial to any member, security holder, creditor, director or officer or, where the corporation is charitable corporation, the public generally; or (b) unfairly disregards the interests of any member, security holder, creditor, director or officer or, where the corporation is charitable corporation, the public generally. (2) In connection with an application pursuant to this section, the court may make any interim or final order it considers appropriate, including an order: (a) restraining the conduct complained of; ... (h) varying or setting aside transaction or contract to which corporation is party and compensating the corporation or any other party to the transaction or contract. 36) The position of the USSU and CFS is that s. 135 is not applicable to the complaint raised by the applicant. Although there is no definition of an “election” in the Act, the respondents argue that plain and usual reading of s. 135 would confine the ambit of the word “election” to that of an election of director or auditor. They suggest that it would be an error, and clear misreading of the section, to provide an expansive definition of election so as to encompass referendum by non-profit corporation seeking membership in third party. 37) The USSU asserts the applicant has another barrier which he cannot clear. He convocated from the University of Saskatchewan in the spring of 2006. As this matter was argued in September, 2006, he is no longer member of the USSU, nor is he director. In sum, the USSU says the applicant has no standing to bring an application under s. 135 of the Act. 38) The applicant replies that notwithstanding his graduation from the university in May, 2006, he continued to be member of the USSU until August 31, 2006. Membership for USSU members who have paid their dues are by convention, he asserts, still members until August 31, 2006. Buttressing his position is the fact that many of the benefits associated with USSU membership continue in force until August 31, 2006 such as coverage under the health and dental plan. Additionally, the applicant argues that he gave notice of intention to seek judicial review as early as April 3, 2006 and therefore at the initiating steps of the matter he was “member” even by the respondent’s definition. 39) The applicant submits that if the Court employs narrow definition of election, then member of an organization in his circumstance is without remedy in the face of an improperly conducted referendum which affects the organization. 40) agree with the respondent’s interpretation of s. 135(1). To read the word “election” in the section as anything other than referring to the election of director or auditor requires interpretive contortions beyond my ability. 41) However, divining the true meaning of s. 135 is academic given the relief available to the applicant under s. 225. Section 225 addresses an application by complainant. complainant is defined in s. 222 and can be former director. It is common ground, by all, that the applicant is former director. 42) In my view, the conduct complained of by the applicant falls within the ambit of s. 225(1). He complains about the manner in which the activities or affairs of the corporation have been conducted. The authority in s. 225(2) gives the Court the necessary power to address such wrongs and are sufficiently broad so as to subsume an order declaring referendum of no force or effect. Should the referendum be set aside? 43) When addressing the relief requested by the applicant, the Court must first determine what approach it should take in the context of overturning vote. conclude the case law clearly directs that my mind set must be very circumspect. 44) In Abrahamson v. Baker and Smishek (1964), 1964 CanLII 380 (SK CA), 50 W.W.R. 664 (Sask. C.A.), the Court addressed an application to declare an election invalid due to irregularities and observed at page 672: ...to be successful on petition based upon the irregularities therein-stated, it must be shown to the satisfaction of the Court that the election was not conducted in accordance with the principles of the Act and that such non-compliance did affect the result of the election. The onus for establishing these two requirements rests upon the petitioner. That being so, the petition must include not only the allegations of irregularities but also allegations of the effect thereof on the election.... 45) In Reaburn v. Lorje, 2000 SKQB 81 (CanLII), (2000), 190 Sask. R. 235 (Q.B.), the Court articulated that the overriding theme that emerges from controverted elections case law is that the Court’s approach to its jurisdiction over the democratic process should be one of significant caution. The Court should hesitate to intervene with the will of the electorate unless an application shows, on its face, that non-compliance with election rules affected the ultimate result. 46) The Court in Re Bennett, (1972) Nfld. P.E.I.R. 543 (Nfld. S.C.), set out the common law rule respecting controverted elections by quoting from Crozier v. Rylands (1869), 19 L.T.R. 812. At pages 547 and 548 of Re Bennett, the Court noted: ...before judge upsets an election he ought to be satisfied beyond all manner of doubt that the election was thoroughly void.... think the law to be clear: if the election was carried out properly and in substantial manner in the spirit of the Act, and if the voters were able to express their choice clearly and decisively without any obstruction or hindrance an election should not be set aside because of some failure to observe the letter of the Act. This admits of only one qualification, and that is, that if the failure to observe the letter of the Act in the opinion of the election court could have altered the result of the election then it may be set aside. would add to this that by the result, mean the ultimate election of one of other of the candidates, and not the number of votes which one received more than another. and further at page 549: This view think accords with the general proposition of law which says that where the voters have had free and unfettered opportunity to express their choice, then the Court should not interfere without being satisfied that there was in fact no true election.... 47) The respondents also referred to Leroux v. Molgat, 1985 CanLII 229 (BC SC), [1985] B.C.J. No. 45 (B.C. S.C.) (QL), where Justice McLachlin (as she then was) of the British Columbia Supreme Court summarized the relevant legal principles with respect to the setting aside of the results of an election at para. 3: An election will be set aside only if substantial irregularity, calculated to affect the result, is shown: Anderson v. Stewart and Diotte (1921), 1921 CanLII 412 (NB CA), 62 D.L.R. 98 (N.B.S.C. App. Div.). If the plaintiff establishes irregularities, the onus shifts to the defendants responsible for the conduct of the election to show that those irregularities were not calculated to affect the result: Re the Queen ex rel. Marquette and Skaret (1981), 1981 CanLII 1147 (AB QB), 119 D.L.R. (3d) 497 (Alta Q.B.); Rex ex rel. Henry S. Ivison v. William Irwin (1902), O.L.R. 192; Giesbrecht et al. v. District of Chilliwack (1982), 18 M.P.L.R. 27 (B.C.S.C.). Thus the main issues are whether irregularities are established, and, if so, whether the defendants responsible for the conduct of the election have shown that such irregularities did not affect the result. (See also: Byers v. Wakefield, 2004 SKQB 26 (CanLII), (2004), 242 Sask. R. 228 (Q.B.); Maurice v. Daignault, 2001 SKQB 247 (CanLII), (2001), 206 Sask. R. 239 (Q.B.); and Goos v. Saskatchewan (1986), 1986 CanLII 3063 (SK QB), 53 Sask. R. 64 (Q.B.)) 48) The respondents urge the Court to stand back from election results even in the face of irregularities or problems. They argue that if, and only if, the Court is satisfied that the irregularities prevented the voters from having “free and unfettered” opportunity to express their choice, then the Court should not insert itself into the process.49) 50) The applicant joins issue with the respondent’s approach. He asserts the analysis in cases dealing with controverted elections for elected office are not easily transferrable to the within debate. The applicant urges the Court’s focus should be on the following: (i) Has the non-profit organization acted in good faith? (ii) Has the non-profit organization acted illegally? (iii) Has the non-profit organization acted within the rules of natural justice? 51) The applicant suggests the Court should seek guidance from Walton (Litigation Guardian of) v. Saskatchewan Hockey Association (1998), 1998 CanLII 14039 (SK QB), 166 Sask. R. 32 (Q.B.). Justice Rothery agreed with the Supreme Court of Newfoundland in Mugford et al. v. The Newfoundland Amateur Hockey Association et al (unreported 1982 No. C.B. 408) where it held: think it is relevant to consider the function of Court, which is to redress or correct or rectify an injustice or an unlawful act or where there has been breach of right. The Court is not interested in running the affairs of non-profit organizations or athletic associations or any other associations where they have acted in good faith, where they have not acted illegally or unlawfully, and have acted in accordance with the rules of natural justice ... 52) The applicant also invokes the Supreme Court of Canada in Martineau v. Matsqui Institution (No. 2), 1979 CanLII 184 (SCC), [1980] S.C.R. 602 where Dickson J. opined at para. 75: ...The fact that decision-maker does not have duty to act judicially, with observance of formal procedure which that characterization entails, does not mean that there may not be duty to act fairly which involves importing something less than the full panoply of conventional natural justice rules. In general, courts ought not to seek to distinguish between the two concepts, for the drawing of distinction between duty to act fairly, and duty to act in accordance with the rules of natural justice, yields an unwieldy conceptual framework.... 53) Similarly, in Baker v. Canada (Minister of Citizenship Immigration), 1999 CanLII 699 (SCC), [1999] S.C.R. 817, at paras 21 through 28, under the heading “Factors Affecting the Content of the Duty of Fairness”, the Supreme Court of Canada has provided guidance on how the duty of fairness may arise and be applicable in various circumstances. The following summary is found in the Supreme Court Reports headnote, at page 819: The duty of procedural fairness is flexible and variable and depends on an appreciation of the context of the particular statute and the rights affected. The purpose of the participatory rights contained within it is to ensure that administrative decisions are made using fair and open procedure, appropriate to the decision being made and its statutory, institutional and social context, with an opportunity for those affected to put forward their views and evidence fully and have them considered by the decision-maker. Several factors are relevant to determining the content of the duty of fairness: (1) the nature of the decision being made and process followed in making it; (2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; (5) the choices of procedure made by the agency itself. This list is not exhaustive. (See also: Kanigan (Guardian Ad Litem) v. Castlegar Minor Hockey Association (1996), 1996 CanLII 1486 (BC SC), 141 D.L.R. (4th) 563 (Ont. S.C.); Beauchamp (Litigation Guardian of) v. North Central Predators AAA Hockey Assn. (2004), 2004 CanLII 48698 (ON SC), 247 D.L.R. (4th) 745 (Ont. S.C.); and Mirimichi Minor Hockey Club Inc. v. New Brunswick Amateur Hockey Assn., [1999] N.B.J. No. 631 (N.B. Q.B. T.D.) (QL)) 54) The applicant submits that the USC’s flagrant and arbitrary changing of the rules of the game, in relation to the ratification by the Elections Board, must be clearly determinative on the issue of breach of duty of good faith and natural justice. 55) On September 29, 2005, the USC, with forethought, laid down protocol for the referendum. The protocol was not precipitously created but was focussed attempt to dovetail the existing USSU rules for referenda and the requirements of the CFS. critical part of the protocol for the CFS referendum was that the Elections Board “must ratify the results of this referendum”. 56) The applicant submits that the entire referendum was put into question and the process tainted beyond redemption by the USC’s response to the report of the Elections Board. When the Elections Board had the temerity to act deliberatively and render decision at odds with the wishes of the USC, the USC simply changed the rules and substituted its own ratification for that of the Elections Board. 57) The respondents acknowledge, prima facie, the treatment of the Elections Board result was not consistent with the September 29, 2005 resolution. However, they remind the Court that the Elections Board is creature of the USSU and as result its function could be changed by the USC. The applicant replies that such power does not permit the USC to change the Elections Board function from critical last step to meaningless final charade. 58) am in accord with the judicial line of thought that the Court should be hesitant to involve itself in the democratic process. The question should always be: notwithstanding the missteps in the process, can it be said those missteps affected the result? 59) It is telling that the Elections Board, which was much closer to the ground than any Court could possibly be, concluded that it could not, in good faith, ratify the referendum result. It stated its underlying concern was whether any of the problems “would have significantly affected the will of the voters”. From its decision, must conclude it did. If employ the analysis from the controverted elections cases, the Elections Board’s report would lead to conclusion that there should be an order directing the referendum result should be set aside. 60) However, on balance, do not believe the test emanating from the controverted elections cases is applicable. believe that in debates of this type, the preferred guidance is from the test articulated in Walton (Litigation Guardian of) v. Saskatchewan Hockey Association, supra, and the related cases dealing with non-profit organizations. 61) In those cases, the Court does not ask itself whether the results have been skewed, but rather has the organization acted in good faith and generally in accord with the concepts of natural justice? This does not mean, as noted in Martineau, supra, that there must be an exacting legal process or an application of the full “panoply” of procedural natural justice rules. The question is, has the organization acted in fashion that meets the legitimate expectations of fair-minded observer? 62) In this case, it is instructive to reflect upon the USC’s reaction to the report of the Elections Board and the inconvenient truths noted therein. The USC’s response to the report was to ignore the very process it created to ensure there was fair referendum. Does that have the badges of good faith, fair play or the general notions of natural justice? 63) In my view, no reasonable observer could conclude that the USC approached the post-vote process in good faith or in a fashion that is in harmony with the broad rules of natural justice. When faced with a result (rendered by a procedure which it had specifically established for the referendum) which was not consistent with its wishes, the USC simply ignored its own rules and imposed its own preordained outcome. 64) Accordingly, I conclude that the USC breached its obligation to act in good faith and conducted itself in a fashion inconsistent with natural justice. The applicant is entitled to a portion of the relief he seeks. The portion am willing to grant is limited to the effect of the referendum. I order that the referendum held by the USSU on the issue of whether it should join the CFS is of absolutely no force or effect. 65) In all of the circumstances, decline to award costs. J. R. S. Smith

FIAT: In October 2005, a referendum was held within the student body of the University of Saskatchewan to determine whether the University of Saskatchewan Students Union should join the Canadian Federation of Students and its related corporation, the Canadian Federation of Students-Services. The result favoured joining the federation. The applicant applies under The Non-Profit Corporations Act, 1995 seeking sundry relief, the net result of which would set aside the outcome of the referendum. HELD: 1) The test emanating from the Controverted elections cases are not applicable. In debates of this type, the preferred guidance is from the test articulated in Walton (Litigation Guardian of) v. Saskatchewan Hockey Association and the related cases dealing with non-profit organizations. In those cases, the Court does not ask itself whether the results have been skewed, but rather has the organization acted in good faith and generally in accord with the concepts of natural justice? This does not mean that there must be an exacting legal process or an application of the full 'panoply' of procedural natural justice issues. The question is has the organization acted in a fashion that meets the legitimate expectations of a fair-minded observer? 2) No reasonable observer could conclude that the USC approached the post-vote process in good faith or in a fashion that is in harmony with the broad rules of natural justice. When faced with a result (rendered by a procedure which it had specifically established for the referendum) which was not consistent with its wishes, the USC simply ignored its own rules and imposed its own preordained outcome. Accordingly, the Court concluded that the USC breached its obligation to act in good faith and conducted itself in a fashion inconsistent with natural justice. The applicant is entitled to a portion of the relief he seeks. The referendum held by the USSU on the issue of whether it should join the CFS is of no force or effect.

2006skqb462.txt

nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2014 SKQB 265 Date: 2014 08 22 Docket: Q.B.C.A. 29/2013 Judicial Centre: Saskatoon BETWEEN: HER MAJESTY THE QUEEN and BRENT DARREN PLANTJE Counsel: Lana E. Morelli for the appellant Ronald P. Piche for the respondent JUDGMENT THOLL J. August 22, 2014 I. Introduction [1] On March 13, 2011, Mr. Plantje was charged with impaired operation of motor vehicle, contrary to s. 253(1)(a) of the Criminal Code, R.S.C. 1985, c. C‑46, and operating motor vehicle when the concentration of alcohol in his blood exceeded 80 milligrams of alcohol per 100 millilitres of blood, contrary to s. 253(1)(b) of the Criminal Code. [2] The investigation into the events which the charges were based on included demand from police officer that Mr. Plantje provide roadside sample of his breath into an approved screening device ("ASD"). At trial, Mr. Plantje challenged the reasonableness of the investigating officer's suspicion upon which the officer based his ASD demand. The trial judge determined the officer's suspicion was not reasonable, which resulted in breach of ss. and of the Canadian Charter of Rights and Freedoms (the "Charter"). The trial judge excluded the Certificate of Qualified Technician, pursuant to s. 24(2) of the Charter, and Mr. Plantje was acquitted of both charges. [3] In its Notice of Appeal, the Crown appealed the acquittals of both of the charges. At the argument of the appeal, however, the Crown informed the court it was appealing only the acquittal with regard to the s. 253(1)(b) charge (exceed .08) and was abandoning its appeal with regard to the s. 253(1)(a) charge (impaired operation). [4] On November 12, 2011, Cst. Kowalenko, who is member of the Saskatoon Police Service, was on duty. His shift had commenced at 7:00 p.m. on the previous day. Cst. Kowalenko was in marked police vehicle and was on routine patrol with his partner in Saskatoon. At 5:12 a.m., Cst. Kowalenko observed car driving eastbound on College Drive. As he followed the car, Cst. Kowalenko observed the car drift to the left and strike the raised meridian which separated the westbound and eastbound lanes. The car then drifted slowly over to the right‑hand side of the lane coming close to the line marking the lanes. The car drifted again to the left and corrected again. Cst. Kowalenko observed the vehicle drift three times to the right hand side of the lane with the passenger tires driving on top of the line marking the lanes. The car would then drift back to the left. The car came within few inches of striking the meridian second time. The car was not speeding and, other than drifting back and forth, it was being driven in normal fashion. The car exited College Drive at the McKercher Drive exit and then turned onto Degeer Street, with Cst. Kowalenko continuing to follow. At that point, Cst. Kowalenko activated his emergency lights and sirens to conduct traffic stop. The car immediately pulled over to the side of the street and stopped in normal, safe manner. The time was 5:16 a.m. [5] Cst. Kowalenko exited his vehicle, approached the driver's side of the car and spoke to the driver through the window of the car. The driver was Mr. Plantje. Cst. Kowalenko observed Mr. Plantje's eyes to be red and bloodshot. Cst. Kowalenko asked Mr. Plantje if he had any alcohol to drink that "evening". Mr. Plantje responded that he had "three beers". Cst. Kowalenko observed Mr. Plantje to be nervous and not comfortable with talking to Cst. Kowalenko about what he was doing. [6] At that point, Cst. Kowalenko suspected Mr. Plantje had alcohol in his bloodstream and decided to conduct an ASD test with him at the roadside. Cst. Kowalenko asked Mr. Plantje to get out of the car and Mr. Plantje complied. Cst. Kowalenko did not notice any coordination problems or lack of motor skills by Mr. Plantje when he exited his car. Cst. Kowalenko then read the ASD demand to Mr. Plantje while they were standing beside Mr. Plantje's car. The demand was made at 5:17 a.m. [7] Mr. Plantje accompanied Cst. Kowalenko back to the patrol car where Cst. Kowalenko retrieved the ASD from the trunk. Mr. Plantje followed Cst. Kowalenko to the trunk area of the patrol car. At that point Cst. Kowalenko smelled alcohol on Mr. Plantje's breath. Mr. Plantje was placed in the back seat of the patrol car where the ASD test was administered. The ASD registered an "F" which represents fail of the test. At 5:29 a.m., Cst. Kowalenko arrested Mr. Plantje for impaired driving. Cst. Kowalenko provided rights to counsel, provided the police warning and made demand for sample of Mr. Plantje's breath pursuant to s. 254(3) of the Criminal Code. Cst. Kowalenko then transported him to the Saskatoon Police Service office for the purpose of conducting breath tests. [8] Cst. Kowalenko and Mr. Plantje arrived at the detention area of the Saskatoon Police Service office at 5:51 a.m. In due course, three breath tests were conducted by qualified technician, from the Saskatoon Police Service, resulting in two successful breath samples. While spending time with Mr. Plantje during the observation periods at the Saskatoon Police Service office, Cst. Kowalenko observed Mr. Plantje to be smacking his lips and tongue as if his mouth was dry, to have dried white saliva in the corners of his mouth, to be slurring his "S" sounds and to have redshot (sic) and glossy eyes. At no point did Cst. Kowalenko observe any coordination or balance issues being exhibited by Mr. Plantje. [9] The breath tests determined Mr. Plantje's blood alcohol concentration exceeded 80 milligrams of alcohol per 100 millilitres of blood. Those results were recorded on Certificate of Qualified Technician. Mr. Plantje was charged with impaired driving and driving while his blood alcohol concentration exceeded 80 milligrams of alcohol per 100 millilitres of blood. Mr. Plantje was served with the Certificate of Qualified Technician and he was released into the custody of sober person. The Certificate of Qualified Technician was subsequently served on Mr. Plantje second time because the certificate had not been signed by the qualified technician when it was served the first time. [10] At trial, Mr. Plantje challenged the reasonableness of Cst. Kowalenko's suspicion that Mr. Plantje had alcohol in his body when Cst. Kowalenko made the ASD demand. Mr. Plantje argued his rights under ss. and of the Charter were violated because there were not sufficient objective grounds for Cst. Kowalenko's suspicion. Mr. Plantje sought exclusion of the Certificate of Qualified Technician as remedy pursuant to s. 24(2) of the Charter. voir dire was held with regard to the Charter issues. Cst. Kowalenko was the only witness on the voir dire. [11] In his decision on the voir dire, the trial judge found Mr. Plantje appeared nervous when speaking to Cst. Kowalenko. The trial judge also found that, at the time of the ASD demand, there was no smell of alcohol, Mr. Plantje was not slurring his words and Mr. Plantje had no problems walking or standing. [12] The trial judge determined, at pps. 123, 127 and 128 of the transcript, that Cst. Kowalenko had based his suspicion Mr. Plantje had alcohol in his body solely on the following three facts: a. Cst. Kowalenko had observed erratic driving by Mr. Plantje. b. Cst. Kowalenko has observed Mr. Plantje's eyes to be red and bloodshot. c. When Cst. Kowalenko asked Mr. Plantje whether he had drank any alcohol that evening, Mr. Plantje stated he had drank three beer. [13] In considering the reasonableness of the ASD demand, the trial judge relied on the following cases: R. v. Beechinor, 2004 SKPC 49 (CanLII), 247 Sask.R. 194; R. v. Donald, 2010 SKPC 123 (CanLII), 363 Sask.R. 195; R. v. Lytle, 2008 SKPC 156 (CanLII), 327 Sask.R. 148; R. v. Anderson, 2010 SKQB 70 (CanLII), 347 Sask.R. 283; R. v. Nahorniak, 2010 SKCA 68 (CanLII), 359 Sask.R. 15; and R. v. Yates, 2013 SKQB 241 (CanLII), 424 Sask.R. 135 (overturned by R. v. Yates, 2014 SKCA 52 (CanLII), [2014] S.J. No. 233 (QL) subsequent to the decision in the matter at hand). [14] The trial judge was concerned Cst. Kowalenko asked Mr. Plantje whether he had been drinking that "evening" because it was no longer evening when that question was asked. It was 5:16 in the morning. Cst. Kowalenko made no inquiries as to when the three beer had been consumed. The trial judge was also concerned about the absence of the smell of alcohol at the time the ASD demand was made. The trial judge opined that if the beer had been consumed recently he would have expected the smell of alcohol to have been coming from Mr. Plantje's breath. At p. 129, line 13 of the transcript, the trial judge concluded as follows: Without any discernible odour of alcohol or any other signs that the accused had been recently drinking, reasonable person, placed in the shoes of Constable Kowalenko, would not conclude on these facts that the accused had alcohol in his body at the time that he was stopped by the officer. As result, am not satisfied that Constable Kowalenko had the requisite reasonable suspicion to make an approved screening device demand on the accused. [15] In his decision on the voir dire, the trial judge determined Cst. Kowalenko's suspicion was not reasonable and, there being no other reason for detaining Mr. Plantje, there was violation of Mr. Plantje's rights under ss. and of the Charter. [16] Having found violation of Mr. Plantje's ss. and Charter rights, the trial judge undertook an analysis pursuant to s. 24(2) of the Charter, relying on R. v. Grant, 2009 SCC 32 (CanLII), [2009] S.C.R. 353. The trial judge determined Cst. Kowalenko was not deliberately trying to violate Mr. Plantje's rights, but his dealings with Mr. Plantje were less than what society should expect from police officer who has been trained in the use of the ASD. The trial judge found Cst. Kowalenko, through haste or carelessness, did not carry out his responsibilities and should have done further investigation before "leaping straight to demanding that the accused provide incriminating evidence against himself" (Transcript, p. 131, lines 19-21). Cst. Kowalenko's conduct was found to have shown an "unfortunate disregard of the accused's Charter rights" resulting in the trial judge categorizing the breaches as "somewhat serious" (Transcript, p. 131, lines 22-24). The impact of the breaches was found to be significant. The trial judge recognized society has strong interest in adjudicating cases of this nature on their merits and the evidence was reliable, relevant and necessary for the Crown's case. Balancing the three factors from Grant, supra, the trial judge excluded the Certificate of Qualified Technician pursuant to s. 24(2) of the Charter. [17] The Crown elected to call no further evidence on the trial proper and Mr. Plantje was acquitted of both charges. The Crown appealed the acquittals on both charges, but abandoned the appeal of the acquittal for impaired driving. [18] The issues in this matter are narrow. They are as follows: (a) Did the trial judge err in determining there were not reasonable grounds for Cst. Kowalenko's suspicion that Mr. Plantje had alcohol in his body? (b) If ASD demand was not based on reasonable suspicion, and therefore violated Mr. Plantje's ss. and rights under the Charter, did the trial judge err in excluding the Certificate of Qualified Technician pursuant to s. 24(2) of the Charter? IV. Jurisdiction and Standard of Review [19] The Crown appeals pursuant to s. 813 of the Criminal Code. Section 686(4) of the Criminal Code sets out the possible dispositions in this appeal. Section 686(4) of the Criminal Code is as follows: (4) If an appeal is from an acquittal or verdict that the appellant or respondent was unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal may (a) dismiss the appeal; or (b) allow the appeal, set aside the verdict and (i) order new trial, or (ii) except where the verdict is that of court composed of judge and jury, enter verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty but for the error in law, and pass sentence that is warranted in law, or remit the matter to the trial court and direct the trial court to impose sentence that is warranted in law. [20] The Crown has sought new trial, recognizing that the manner in which the proceedings below unfolded does not make it possible for this Court to substitute finding of guilt should the court decide to allow the appeal. [21] The standard of review applicable to an appeal of this nature was recently summarized by Barrington‑Foote, J. in R. v. Lomenda, 2014 SKQB 77 (CanLII), [2014] W.W.R. 525 at paras. 14 to 16, as follows: 14 The standard of review to be applied on an appeal under this section was summarized by Popescul J., as he then was, in R. v. Helm, 2011 SKQB 32 (CanLII), 368 Sask.R. 115, as follows: 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. 15 As noted by Ball J. in R. v. Kratchmer, 2012 SKQB 117 (CanLII), 392 Sask.R. 262: 23 .. An appeal will be allowed where the trial judge has made palpable and overriding error, but the appeal court must not substitute its own view of the evidence for that of the trial judge, especially in matters involving findings of credibility. (R. v. Andres, 1979 CanLII 2238 (SK CA), [1982] W.W.R. 249 at 251, Sask. R. 96 (Sask. C.A.); R. v. S. (P.L.), 1991 CanLII 103 (SCC), [1991] S.C.R. 909, [1991] S.C.J. No. 37 (QL)) 24 For appeals brought on the basis of an error of law, reversible errors in dealing with evidence can include misdirection respecting reasonable doubt, failure to consider the evidence in totality, and misdirection concerning specific relevant evidence (R. v. B. (G.), 1990 CanLII 115 (SCC), [1990] S.C.R. 57 following R. v. Morin, 1988 CanLII (SCC), [1988] S.C.R. 345). It may also include an error in erroneously interpreting Charter breach (R. v. Yuhas (1993), 1993 CanLII 9081 (SK QB), 114 Sask. R. 34 (Q.B.), [1993] S.J. No. 488 (QL)). 16 The distinction between questions of law and questions of fact was summarized by McLaughlin C.J. and Charron J. in R. v. Shepherd, 2009 SCC 35 (CanLII), [2009] S.C.R. 527, as follows: 20 .. As with any issue on appeal that requires the court to review the underlying factual foundation of case, it may understandably seem at first blush as though the issue of reasonable and probable grounds is question of fact. However, this Court has repeatedly affirmed that the application of legal standard to the facts of the case is question of law: see R. v. Araujo, 2000 SCC 65 (CanLII), [2000] S.C.R. 992, at para. 18; R. v. Biniaris, 2000 SCC 15 (CanLII), [2000] S.C.R. 381, at para. 23. In our view, the summary conviction appeal judge erred in failing to distinguish between the trial judge's findings of fact and his ultimate ruling that those facts were insufficient, at law, to constitute reasonable and probable grounds. Although the trial judge's factual findings are entitled to deference, the trial judge's ultimate ruling is subject to review for correctness. [22] In the matter at hand, the Crown asserts the trial judge incorrectly determined Cst. Kowalenko's suspicion was not reasonable. The determination of whether the facts as found by the trial judge constitute reasonable suspicion is the application of legal standard. The application of legal standard to the facts is question of law. The trial judge's finding that Cst. Kowalenko's suspicion was not reasonable is, therefore, subject to review for correctness. (R. v. Yates, supra at para. 17) [23] The appeal of the s. 24(2) Charter remedy engages different standard of review. The standard of review of the trial judge's decision to exclude the Certificate of Qualified Technician under s. 24(2) of the Charter is set out in R. v. Shinkewski, 2012 SKCA 63 (CanLII), 289 C.C.C. (3d) 145, at para. 28, as follows: 28 In reaching this conclusion am mindful that the standard of appellate review of trial decision which has relied on s. 24(2) of the Charter is one of reasonableness (R. v. Buhay, supra) and that an appellate court should not second guess trial judge's findings or substitute its own view just because it would have decided the matter differently (see: R. v. Duguay, 1989 CanLII 110 (SCC), [1989] S.C.R. 93, at p. 98; R. v. Greffe, 1990 CanLII 143 (SCC), [1990] S.C.R. 755, at p. 783; R. v. Mellenthin, 1992 CanLII 50 (SCC), [1992] S.C.R. 615, at p. 626; and R. v. Chaisson, 2006 SCC 11 (CanLII), [2006] S.C.R. 415, at para. 7). Nevertheless, where trial judge has erred in principle when conducting s. 24(2) analysis, the decision will attract appellate intervention (see: R. v. Harrison, 2009 SCC 34 (CanLII), [2009] S.C.R. 494, at para. 37; and R. v. Borden, 1994 CanLII 63 (SCC), [1994] S.C.R. 145, at p. 167; and, with respect to sufficiency of reasons, see also: R. v. Buhay; R. v. Sheppard, 2002 SCC 26 (CanLII), [2002] S.C.R. 869; and R. v. Feeney(per Sopinka J.)). [24] If the trial judge has weighed the proper factors in arriving at the remedy under s. 24(2) of the Charter, the reviewing court must accord considerable deference to the trial judge's determination of the remedy. (Grant, supra, at para. 86) V. Analysis a. Reasonable Suspicion Under Section 254(2)(b) [25] Section 254(2)(b) of the Criminal Code sets out the power of peace officer to demand person provide sample of his or her breath into an ASD. Section 254(2)(b) is as follows: 254 (2) If peace officer has reasonable grounds to suspect that person has alcohol or drug in their body and that the person has, within the preceding three hours, operated motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of motor vehicle, vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of drug, or with either or both of paragraphs (a) and (b), in the case of alcohol: ... (b) to provide forthwith sample of breath that, in the peace officer's opinion, will enable proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose. [26] The only issue raised in this appeal with regard to Cst. Kowalenko's demand under s. 254(2)(b) is whether he had reasonable grounds to suspect that Mr. Plantje had alcohol in his body. The Saskatchewan Court of Appeal in Yates, supra, at para. 33, has recently reiterated the two requirements for demand pursuant to s. 254(2)(b), as follows: 33 Based on Chehil, MacKenzie, Jacques and Bernshaw, to the extent the latter dealt with s. 254(2)(b), conclude the requirements for valid s. 254(2)(b) demand essentially are that: (i) the police officer must subjectively (or honestly) suspect the detained driver has alcohol in his or her body; and (ii) the police officer's subjective suspicion must be based on constellation of objectively verifiable circumstances, which collectively indicate that the suspicion that the detained driver has alcohol in his or her body is reasonable. [27] If the investigating officer does not have subjective suspicion that driver has alcohol in his body, or that suspicion is not reasonable, it is violation of the driver's ss. and rights under the Charter. [28] Mr. Plantje concedes Cst. Kowalenko subjectively suspected Mr. Plantje had alcohol in his body. This appeal concerns whether that suspicion, based on the facts as found by the trial judge, satisfies the objective requirement of s. 254(2)(b). [29] As noted earlier, the trial judge determined Cst. Kowalenko based his suspicion on the following three factors: a. Cst. Kowalenko had observed erratic driving by Mr. Plantje. b. Cst. Kowalenko has observed Mr. Plantje's eyes to be red and bloodshot. c. When Cst. Kowalenko asked Mr. Plantje whether he had drank any alcohol that evening, Mr. Plantje stated he had drank three beer. [30] The trial judge correctly did not take into account factors, such as the smell of alcohol, slurred speech and dry mouth, that were observed after the ASD demand had already been made. The reasonableness of the suspicion must be evaluated based on the facts known at the time the ASD demand was made. [31] The Crown agreed the totality of the circumstances known to Cst. Kowalenko at the time the ASD demand was made should be taken into account when evaluating the reasonableness of the suspicion. This would include the absence of factors such as the absence of the smell of alcohol and the lack of other physical manifestations such as slurring or coordination issues. The Crown submitted, however, that the reasonableness of Cst. Kowalenko's suspicion should also be based on Mr. Plantje's nervousness, his lack of desire to tell Cst. Kowalenko what he was doing and the fact this incident occurred at 5:12 in the morning. The trial judge specifically found that Cst. Kowalenko relied only on three factors in forming his suspicion. This is a finding of fact. There is no basis for disturbing this finding of fact. As noted in R. v. Gunn, 2012 SKCA 80 (CanLII), 399 Sask.R. 170 at para. 18, albeit in the context of demand pursuant to s. 254(3), the reasonableness of the investigating officer's belief must be centered around the factors which actually led the officer to his belief. The nervousness and lack of desire to explain what he was doing and the time of the incident are not factors that will be taken into account in determining the reasonableness of Cst. Kowalenko's suspicion. The time of the incident is only relevant to the extent it provides context to the other factors. [32] The Supreme Court of Canada, and the courts in this province, have had several opportunities to discuss the meaning of reasonable suspicion. This recent jurisprudence was canvassed in the Saskatchewan Court of Appeal decision in Yates, supra. This is decision which postdates the trial decision in this matter. The decision addressed the analysis to be applied when evaluating the reasonableness of suspicion under s. 254(2)(b). In Yates, the officer observed erratic driving, noted the driver to have bloodshot and glossy eyes and detected the smell of alcohol flowing from the open driver's side window without specifically identifying the source of the smell. [33] The majority in Yates reviewed the meaning of reasonable suspicion set out by the Supreme Court of Canada in R. v. Jacques, 1996 CanLII 174 (SCC), [1996] S.C.R. 312, 139 D.L.R. (4th) 223; R. v. Chehil, 2013 SCC 49 (CanLII), [2013] S.C.R. 220; and R. v. McKenzie, 2013 SCC 50 (CanLII), [2013] S.C.R. 250. The majority also commented favourably on the decision by the Manitoba Court of Appeal in R. v. Mitchell, 2013 MBCA 44 (CanLII), 291 Man.R. (2d) 231. The principles that can be extracted from these decisions were set out at paras. 28 and 29 of Yates, as follows: 28 In R. v. Jacques, 1996 CanLII 174 (SCC), [1996] S.C.R. 312, the Court held the term "suspicion on reasonable grounds" in the Customs Act, R.S.C., 1985, c. (2nd Supp.) only required there be possibility of an offence having been committed. In R. v. Mitchell, 2013 MBCA 44 (CanLII), 298 C.C.C. (3d) 525, the Manitoba Court of Appeal adopted the following statement from R. v. Chipchar, 2009 ABQB 562 (CanLII): "Thus, reasonable suspicion requires only that the belief be one of number of possible conclusions based on the supporting facts, not probability [italic emphasis added]" (para. 20, bold emphasis in original). 29 The Supreme Court of Canada in Chehil and MacKenzie comprehensively reviewed the standard of "reasonable grounds to suspect" and the application thereof to potential criminal activity. Of particular significance are the following requirements stipulated in Chehil and discussed in MacKenzie: 1. Reviewing judges must be cautious not to conflate reasonable grounds to suspect with the more demanding reasonable and probable grounds standard (Chehil, para. 27); 2. The fact that reasonable suspicion deals with possibilities, rather than probabilities, necessarily means that in some cases the police will reasonably suspect that innocent people are involved in crime (Chehil, para. 28); 3. Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect (Chehil, para. 29); 4. The constellation of factors will not ground reasonable suspicion where they merely amount to "generalized" suspicion (Chehil, para. 30); 5. Factors that may "go both ways" by themselves may not support reasonable suspicion but do not preclude reasonable suspicion arising when they form part of constellation of factors (Chehil, para. 31); 6. Reasonable suspicion need not be the only inference that can be drawn from particular constellation of factors (Chehil, para. 32); 7. Exculpatory, neutral or equivocal information cannot be disregarded when assessing constellation of factors (Chehil para. 33); 8. The obligation of the police to take all factors into account does not require the police to further investigate or seek exculpatory factors or rule out possible innocent explanations (Chehil, para. 34); 9. When conducting an inquiry to ascertain whether reasonable suspicion was present, the court is to assess the circumstances the police were aware of at the time of execution of the search (Chehil, para. 34); 10. The objective facts must be indicative of the possibility of criminal behaviour in order to ground reasonable suspicion but the evidence itself need not consist of unlawful behaviour or evidence of specific known criminal act (Chehil, para. 35). [34] The majority in Yates, at para. 34, summarized the test to be applied to the evaluation of suspicion under s. 254(2)(b), as follows: 34 Consequently, the constellation of circumstances need not be sufficient to prove the detained person actually has alcohol in his or her body. Nor should each circumstance in the constellation be separated, analysed and evaluated apart from the constellation. Rather, the adequacy of police officer's suspicion is to be assessed under the de novo analysis called for in R. v. MacKenzie using this test: would reasonable person, standing in the shoes of the investigating police officer and aware of all of the objectively verifiable evidence, reasonably suspect the driver had alcohol in his or her body? The reviewing court is not to consider whether the investigating officer's suspicion was accurate or whether other inferences could be drawn from the constellation of circumstances, or to consider whether the investigating officer could have taken further steps to confirm or dispel prima facie reasonably held suspicion that alcohol was present in the driver's body. It is an error in law to dissect the constellation of circumstances and individually test each circumstance or the absence of other circumstances. [35] As set out in R. v. Nahorniak, at para. 26 and 27, the mere failure to detect alcohol on Mr. Plantje's breath is not determinative. It is, however, one of the factors to be included in the constellation of factors to determine if Cst. Kowalenko's suspicion was reasonable. [36] While Cst. Kowalenko could have proceeded further into his investigation before making the ASD demand, by asking follow up questions about the timing of alcohol consumption and taking more time to attempt to detect alcohol on Mr. Plantje's breath, an investigating officer is not required to conduct perfect investigation. As noted in para. 34 of Yates, supra, reviewing court is not to consider whether further investigative steps would have confirmed or dispelled prima facie reasonably held suspicion. The reviewing court must evaluate the totality of the circumstances as they were known to the investigating officer at the time of the demand. [37] Turning to the evaluation of the correctness of the trial judge's decision regarding the reasonableness of the suspicion, this Court's task is to determine whether reasonable person, standing in the shoes of Cst. Kowalenko, would reasonably suspect Mr. Plantje had alcohol in his body, knowing the following constellation of circumstances: a. Mr. Plantje was driving his car in manner that caused it to drift back and forth in his lane to the point of driving on the lines marking the lanes, striking the meridian once and almost striking the meridian second time. b. Mr. Plantje's eyes were red and bloodshot. c. In response to the question of whether he had drank any alcohol that "evening", when it was 5:16 in the morning, Mr. Plantje stated he had drank three beer without specifying when he had drank those three beer. d. Mr. Plantje pulled his vehicle over to the side of the road in proper and safe manner immediately upon Cst. Kowalenko activating his emergency equipment. e. No smell of alcohol was detected on Mr. Plantje. f. Mr. Plantje was not slurring his words. g. Mr. Plantje did not fumble with his documents or exhibit any muscle coordination issues. [38] The factor in this constellation which causes the most difficulty is the admission by Mr. Plantje, at 5:16 in the morning, that he had been drank three beer that "evening". This is the factor that the trial judge was particularly concerned about. At pps. 128 and 129 of the transcript, the trial judge noted it was early morning when the question was asked by Cst. Kowalenko. In response to the answer of "three beer", Cst. Kowalenko made no inquiries as to when the three beer had been consumed. The trial judge stated he would have expected there to be a smell of alcohol on the breath of the accused if he had recently consumed the beer. As a result, the trial judge disregarded the admission of drinking, and evaluated whether a reasonable person would suspect Mr. Plantje had alcohol in his body on the basis of the careless driving and his red eyes combined with the absence of a smell of alcohol or other signs of recent consumption. This Court finds the trial judge erred when he disregarded the admission by Mr. Plantje. This admission should have been included as part of the constellation of factors to be considered in an objective determination of the presence or absence of reasonable suspicion and not dissected as an individual factor and discarded. [39] Mr. Plantje did not testify on the voir dire as to what he thought Cst. Kowalenko meant when he used the word "evening". While Mr. Plantje's subjective belief of what Cst. Kowalenko meant by the word "evening" would not have been determinative, it would have provided some evidence as to what reasonable person would have thought such question from police officer meant. Without any such evidence, the court is left to evaluate how such question would be perceived by reasonable member of the public. It is the opinion of this Court that a reasonable person during a traffic stop after erratic driving, in the early hours of the morning, would perceive the question Cst. Kowalenko asked to be referring to recent consumption of alcohol. No reasonable member of the public would perceive Cst. Kowalenko's question as referring to consumption of alcohol at some earlier irrelevant time. A reasonable member of the public would perceive the question to be referring to alcohol consumption that could impair a person's current ability to drive. [40] It was also reasonable for Cst. Kowalenko, despite Cst. Kowalenko's imprecise use of words, to infer from the answer given by Mr. Plantje that Mr. Plantje had consumed three beer at a recent, relevant time. This did not prove that Mr. Plantje had consumed the three beer recently, but it is certainly reasonable for a police officer to infer the consumption was recent, for the purposes of a reasonable suspicion, when such an answer is given by a driver in these circumstances in an unqualified manner. [41] The failure of an investigating officer to inquire into the time of consumption, and the absence of the smell of alcohol, is part of the constellation of circumstances to be considered, but it is not fatal to reliance on the admission by Mr. Plantje. The court finds further support for this proposition in R. v. Drysdale, 2013 SKQB 392 (CanLII), 432 Sask.R. 46. [42] As result, this Court must respectfully disagree with the conclusion reached by the trial judge regarding the reasonableness of Cst. Kowalenko's suspicion. reasonable person standing in the shoes of Cst. Kowalenko, knowing the constellation of factors noted above, would reasonably suspect Mr. Plantje had alcohol in his body. reasonable person having observed driver having so little control of his car that he was drifting back and forth in his lane to the point of striking the meridian and almost striking it again, who then observed the driver to have red, bloodshot eyes and heard an admission by the driver that he had drank three beer this "evening" when asked by police officer, even if that admission came at 5:16 in the morning, would reasonably suspect that driver had alcohol in his body. This suspicion would be formed by reasonable person even in the absence of smell of alcohol, any slurring of speech, other unusual driving behaviour or lack of muscle coordination. [43] The court finds further support for this conclusion by comparing the constellation of circumstances in Yates, supra, to the constellation of circumstances in the matter at hand. In both matters there was erratic driving, the driver stopped his vehicle safely when pulled over by the police, the driver had bloodshot eyes, there was no slurred speech and there was no evidence of any muscle coordination issues. In Yates there was smell of alcohol emanating from the driver's window but there was no admission of drinking. In the current matter, there is an admission of drinking but no smell of alcohol. It is this Court's opinion that an admission of drinking by a driver, when questioned by a police officer, provides even stronger support for a suspicion that the driver has alcohol in his body than the generalized smell of alcohol emanating from a car window does. [44] The ASD demand was reasonably made and, therefore, there was no violation of Mr. Plantje's rights under ss. 8 and 9 of the Charter. The Crown's appeal must be allowed and a new trial ordered. b. Section 24(2) Exclusion of Evidence [45] As result of the determination on the first issue, the court need not address the issue under s. 24(2) of the Charter. [46] The Crown's appeal from acquittal with regard to the charge under s.253(1)(b) of the Criminal Code is allowed. The acquittal on the charge pursuant to s.253(1)(b) is set aside. A new trial on the s. 253(1)(b) charge is ordered pursuant to s.686(4)(b)(i) of the Criminal Code.

The determination of whether the trial judge’s conclusion regarding the officer’s suspicion was reasonable was question of law subject to the correctness standard. The respondent conceded that the officer had the requisite subjective belief that he had alcohol in his body so the appeal centered on whether the objective test had been met. The appeal court did not find any basis to disturb the trial judge’s finding of fact as to the factors the officer based his suspicion of alcohol consumption on. The court noted the trouble with the fact that the respondent admitted to drinking alcohol that “evening” but the stop was at 5:00 am in the morning. The trial judge disregarded the respondent’s admission to drinking because there was no smell of alcohol and the trial judge said there should be if the consumption was recent. The court concluded that the trial judge erred in dismissing the alcohol consumption admission. A reasonable person would have assumed that the officer’s question was with respect to recent consumption of alcohol not an earlier irrelevant time. It was also found reasonable for the officer to believe the consumption was recent. The court concluded that a reasonable person standing in the officer’s place would reasonably suspect that the respondent had alcohol in his body. An answer by an accused person that they have been drinking was found to be stronger support for a suspicion than the smell of alcohol. Because the respondent’s Charter rights were not breached a new trial was ordered.

e_2014skqb265.txt

J. Q.B. A.D. 1995 No. 211 J.C. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF ESTEVAN BETWEEN: COACHLIGHT RESOURCES LTD. and DUCE OIL LTD. DEFENDANT Thomas Schuck and Lora Bansley for Plaintiff Cameron Muir for Defendant JUDGMENT PRITCHARD, J. March 12, 1999 [1] The plaintiff, Coachlight Resources Ltd. ("Coachlight") and the defendant, Duce Oil Ltd. ("Duce") are corporations engaged in the recovery of petroleum and natural gas substances. This action relates to horizontal well drilled by the parties on LSD of 33-6-9-W2 (the "Horizontal Well" or the "Well"). The Horizontal Well was drilled from an existing vertical well in which Coachlight held 65% interest and Duce held 35% interest. It was drilled under an operating agreement dated May 17, 1984 (the "Operating Agreement") which incorporates the Canadian Association of Petroleum Landmen Operating Procedures 1981 ("CAPL 1981"). The plaintiff invoiced the defendant for its share of expenditures for the Horizontal Well but the defendant refused to pay the whole amount. In this action, the plaintiff seeks an order requiring the defendant to pay the balance of its 35% share of the $681,955.58 costs associated with the Horizontal Well plus $49,701.61 representing its 35% share of the regular lifting and production costs of all joint interest wells under the Operating Agreement, including the Horizontal Well. The plaintiff also seeks a declaration that it holds a builders\' lien against the defendant\'s interest in the Well and other joint interest assets to the extent of the debts due. The defendant denies liability for any share in the costs of the Horizontal Well in excess of $447,535.00 being 110% of the Authorization For Expenditure ("AFE") executed with respect to the Well. The defendant also counterclaims on the basis that, among other things, the plaintiff conducted certain operations without authority, was negligent in conducting operations and overcharged or made improper charges in its accounting procedures. [2] Prior to the drilling of the Horizontal Well, the parties (or their predecessors in title) were joint-operators of vertical well on LSD of 33 and another vertical well approximately one-half mile away on LSD of 33. They agreed to attempt an enhancement of their oil recoveries from the south-half of section 33 by drilling horizontal re-entry Well from the existing vertical well at of 33. It was hoped that the Horizontal Well bore would traverse the oil producing formation lying between of 33 and of 33. Under the Operating Agreement, Coachlight would be the Operator and Duce the Joint-Operator. On August 31, 1993, Coachlight prepared an AFE for the project and submitted it to Duce for approval (the "Original AFE"). Total drilling and completion costs as provided for in the Original AFE were estimated at $406,850.00 comprising approximately $378,400.00 for drilling costs and approximately $28,450.00 for completion costs with 65% of the total costs or $264,452.50 to be paid by Coachlight and 35% or $142,397.50 to be paid by Duce. On September 24, 1993, Mr. Dallas Duce of Duce in Estevan, Saskatchewan and Mr. Kevin Maguire of Coachlight in Calgary, Alberta had 23 minute telephone discussion during which they discussed the plans for the re-entry Horizontal Well. Despite some concerns about what Mr. Duce perceived to be high estimated costs of the Well, the Original AFE was approved by Duce the same day and returned to Coachlight by fax. [3] The application to Saskatchewan Energy and Mines for approval of the Horizontal Well was made August 26, 1993. It shows the target producing zone as the Frobisher, spud date of September 15, 1993, completion date of September 28, 1993 and an anticipated on production date of October 1, 1993. [4] On September 25, 1993 preparations for drilling operations began, including the plugging back of the vertical well and removal of the existing well equipment at of 33. Drilling of the Horizontal Well began October 1, 1993. On that date, Mr. Duce and Mr. Maguire had further telephone discussion of approximately 10 minutes. [5] The drilling contractor was Becfield Drilling Services Ltd. ("Becfield"). The initial drilling by Becfield did not go well. lost time report prepared at the conclusion of the drilling by Bob Nephew, Coachlight's on-site representative, (the "Lost Time Report") describes seven incidents of lost time and resulting additional costs that occurred during the period from October to October 9, many of which involved equipment failures. One of the significant delays resulted from poor core sampling procedures followed by the Becfield crew. The poor sampling was accentuated by the crew's failure to run tracer to determine accurate log times. The sub-standard procedures resulted in sample mixing and difficulties in determining the depth and zone that drilling was at. In addition, after reaching the target Frobisher zone, technical difficulties resulted in the drill bit turning upward into the Marley waterbearing formation. When drilling horizontally, it is much more difficult to drill out of porous rock and although Becfield attempted to angle back downward to the oil zone, it was unsuccessful. As the Marley formation was not the target zone, drilling operations were halted. On the recommendation of Mr. John Milford, the geologist representing Coachlight, decision was made to log to obtain more exact reading of the Horizontal Well bore. [6] The logging was completed at about midnight on October 7, 1993. In the late afternoon of October 7, Mr. Duce and Mr. Maguire had 30 minute telephone conversation at which time the proposal to plug back and kickoff new leg was discussed. Although it was clear that Mr. Duce was not happy about how drilling had proceeded so far, he did not object to the proposed second leg or request time to consider whether Duce wanted to proceed in that manner. Following this lengthy telephone discussion, the plugging back of leg one commenced at approximately 4:30 a.m. on October 8. At approximately 6:00 p.m. on October 8, Coachlight sent Duce four faxes. Three of the faxes were of the computer logs that had finally been received by Coachlight. The other was rough sketch completed by Mr. Maguire which showed that the first leg of the horizontal well was approximately 230 metres in horizontal length and that at one point it had bottomed out in the target zone of the Frobisher limestone but only for length of approximately 20 metres. The fax cover page indicated that the first leg had been plugged back to 1400 metres and that drilling on leg two was expected to commence around am on October 9. The fax cover sheet ended with the statement: "The logs look good. We may be poorer but we're lot smarter". At that time, approximately $287,000.00 in costs had already been incurred but Becfield had acknowledged some adjustments would be necessary due to problems created by its crew. In accordance with standard oilfield practice, Coachlight and Becfield did not stop the drilling operations to negotiate exactly what concessions would be given. That issue was left to be settled after the Well was completed. Despite the high estimated costs to date, Maguire was still hopeful that the project would stay within budget. Clearly, the success in staying on budget would depend on the extent of costs assumed by Becfield and how drilling of the second leg went. [7] Drilling on the second leg did not commence until late on October 10, largely because of problems involved in plugging back the first leg. Drilling of the second leg was initially uneventful with the target zone being quickly located. Unfortunately, however, as the Becfield crew flattened out the drill bit to move horizontally, they drilled out of the oil producing formation. Attempts to turn downward were unsuccessful and upon pulling out of the hole they discovered that the steering tools had vibrated loose. The tools were repaired and after another attempt they were successful in turning downwards and were able to again pick up the Frobisher formation. As bad luck would have it, the Frobisher kept dropping structurally much more than had been anticipated. They found that although they continued to drill downward, they kept chasing the formation until it finally started turning up as leg two of the Horizontal Well bore moved closer towards the vertical well at of 33. [8] On October 12, the problems being encountered on the second leg were discussed in 10 minute telephone discussion between Mr. Duce and Mr. Maguire. On the same day, Mr. Maguire faxed Duce two computer generated schematic drawings. One drawing showed the actual drilling path of leg one through the Marley and the Frobisher formations as well as the drilling to date of leg two through the same formations. As at that date, drilling on leg two had extended out horizontally from vertical of 33 approximately 325 metres so actual geology was only known for that distance. The other drawing also showed the actual drilling paths of legs one and two through the two zones and then projected outward Coachlight's expectations of the geology approximately 475 metres further along the horizontal towards the of 33 vertical well. [9] Drilling on leg two stopped on October 13, 1993. On October 14, Mr. Duce and Mr. Maguire had 29 minute telephone discussion. During this discussion Mr. Maguire explained that leg two had missed the best part of the producing formation when the steering tool failed and that he wanted to go back to that area with sidetrack. He sought Mr. Duce's approval. Mr. Duce did not object to the plan. He indicated that he did not know whether or not it would work but if Coachlight thought it would, it could give it try. During the same conversation, Mr. Maguire advised Mr. Duce that based on full estimates, the Original AFE was already overspent and that even with anticipated Becfield credits, they would probably be over budget if they proceeded with third leg or sidetrack. Although the parties discussed that they would be over budget, neither party raised the issue of whether supplemental AFE was required. Some two hours after this telephone discussion, Mr. Maguire faxed another schematic to Duce. This drawing was similar to those faxed on October 12 but showed not only completed leg one but also completed leg two which now extended horizontally approximately 475 metres out from the of 33 surface location. The drawing showed that the horizontal well bore of leg two had entered the target Frobisher formation near the beginning of the leg for length of approximately 40 metres and again at the end for approximately 85 metres. The balance of the horizontal length of leg two was in the Marley water bearing formation. The drawing also showed proposed 150 metre openhole sidetrack off of leg two to be drilled entirely within the Frobisher target zone. This sidetrack was expected to penetrate that portion of the Frobisher zone that was essentially missed due to the steering tool failure. Notice of the proposed sidetrack was faxed to Saskatchewan Energy and Mines on October 15, 1993. [10] Consent to proceed with the sidetrack was received orally from Saskatchewan Energy and Mines on October 15, 1993. Preparations had already commenced in anticipation of receiving regulatory approval and were completed shortly after the consent was received although actual drilling of the sidetrack did not commence until October 16. The sidetrack was drilled in one day without incident. On October 17, bleach was spotted in the second leg and up into the main hole and liner was set in place. Since the drilling rig was hybrid rig, it was also used for completion of the Horizontal Well. pump was put in place in the early morning of October 18 and the rig was released at 8:00 a.m. on October 19. pump jack was set up, pumping commenced, and the new Horizontal Well was placed on production. Unfortunately, after all of these efforts, it produced primarily water. [11] It soon became clear that the Well had no pressure draw down and that water was flowing in as fast as the Well was being pumped. decision had to be made as to what steps could be taken to make it producing Well. Mr. Maguire determined that work-over program was required in order to isolate the lower part of the Well bore from the water. On October 25 he had 32 minute telephone discussion with Mr. Duce regarding his proposed work-over plan which included the installation of inflatable packers. Mr. Duce did not object to the proposal nor did he suggest any alternate means of attempting to deal with the excessive water flow. As the packers were not contemplated in the original AFE, Mr. Maguire asked Mr. Duce whether he required new AFE for this expenditure. It was agreed that as they still did not have producing Horizontal Well, the charges would simply be added to the original AFE. [12] Unfortunately, problems were encountered in placing the packers. Eventually one packer was installed at cost of $42,593.81. On November 8, 1993, the Well was placed back on production. On November 16, Mr. Maguire sent two structural maps to Duce by fax: one map was dated February 11, 1993 and showed their understanding of the structure before the Well was drilled; the other was dated November 7, 1993 showing the information learned from the drilling of the Well. At the same time, schematic drawing was faxed showing the placement of the inflatable packer. The following day, Mr. Maguire and Mr. Duce had 13 minute telephone discussion. This was the first time that Coachlight was notified that Duce did not intend to immediately pay Coachlight's October 4, 1993 request for payment of $142,397.50 being Duce's 35% of the Original AFE. On December 1, 1993, Coachlight received payment of $85,000.00. On January 12, 1994 Coachlight faxed to Duce supplementary AFE dated December 31, 1993 (the "Supplemental AFE") setting out the cost overruns as at December 31 totalling $214,650.00. The cost overruns were comprised of $155,100.00 for drilling costs and $59,550.00 in completion costs. Coachlight's 65% share of these additional costs was $139,522.50 with Duce's being $75,127.50. Included with the Supplemental AFE was copy of the Lost Time Report prepared for the purpose of securing rebates from Becfield. [13] On March 8, 1994 Duce paid to Coachlight the further sum of $57,397.50 representing payment in full of Duce's share of the Original AFE. However, Duce continued to refuse to pay any drilling or completion costs under the Supplemental AFE. The Well was nevertheless maintained on production from November to June of 1994. It continued to produce high water cut throughout the entire period. In June of 1994 the pump failed and given the high water cuts and payment refusals from Duce no steps were immediately taken to rectify the situation. On June 20, 1994 Coachlight corresponded with Duce advising that as at May 31, 1994 Duce owed it $65,427.52. The letter also gave notice that Coachlight, as Operator, was exercising its option under Article 5, Clause 502 of CAPL 1981 to charge interest. The referenced provision of the 1981 CAPL provides: 502 OPERATOR TO PAY AND RECOVER FROM PARTIES Subject to the provisions of Clause 503, the Operator in its operations for the joint account shall initially advance and pay all costs and expenses of operations conducted for the joint account. The Operator shall charge to each Joint-Operator its proportionate share of the said costs and expenses, and each respective Joint-Operator shall pay the same to the Operator within thirty (30) days after receipt of the Operator's statement thereof. Failing payment when due, the amount unpaid may, at the Operator's option, bear interest from the day such payment is due for the account of the Operator at rate two (2%) percentage points higher than the then prevailing prime bank interest rate charged by the chartered bank in Canada used by the Operator with respect to operations hereunder, until the amount is paid. [14] On July 15, 1994, Coachlight sent Duce default notice pursuant to Article V, Clause 505(b) of the CAPL 1981 (the "Default Notice"). Clause 505(b) of the CAPL 1981 states: 505 OPERATOR'S LIEN (b) If Joint-Operator fails to pay or advance any of the costs hereby agreed to be paid or advanced by it, and the default continues to thirty (30) days after the Operator has served notice upon the Joint-Operator specifying the default and requiring the same to be remedied, the Operator may, without limiting the Operator's other rights at law: (i) withhold from such Joint-Operator any further information and privileges with respect to operations; (ii) treat the default as an immediate and automatic assignment to the Operator of the proceeds of the sale of such Joint-Operator's share of the petroleum substances; and from and after the Operator making such election, the Operator may require the purchaser of such Joint-Operator's share of the petroleum substances to make payment therefor to the Operator while the default continues, and (iii) enforce the lien created by the default in payment by taking possession of all or any part of the interest of the defaulting Joint-Operator in the joint lands or in all or any part of the production therefrom and equipment theron; and the Operator may sell and dispose of any interest, production or equipment of which it has so taken possession either in whole or in part or in separate parcels at public auction or by private tender at time and on whatever terms it shall arrange, having first given notice to the defaulting Joint-Operator of the time and place of the sale. The proceeds of the sale shall be first applied by the Operator in payment of any costs to be paid by the defaulting Joint-Operator and not paid by it and any balance remaining shall be paid to the defaulting Joint-Operator after deducting reasonable costs of the sale. Any sale made as aforesaid shall be perpetual bar both at law and in equity against the defaulting Joint-Operator and its assigns and against all other persons claiming the property or any part or parcel thereof sold as aforesaid by, from, through or under the defaulting Joint-Operator or its assigns. [15] Under the Default Notice, Duce was given notice that it owed Coachlight $69,025.20 representing Duce's unpaid 35% of the drilling, completion and operating costs of the Well and operating costs of other joint interest wells up to June 30, 1994. Duce was required to remedy the default on or before August 18, 1994. By letter dated July 19, 1994 Coachlight offered to accept quit claim of Duce's interest in the Operating Agreement in full settlement of all amounts owing by Duce as set out in the Default Notice. However, by letter dated July 27, 1994, Duce advised Coachlight that it disputed that any funds were owing by it to Coachlight. In its letter, Duce outlined the following four reasons for its refusal to acknowledge an indebtedness: a) Duce was forced to agree to proceeding with leg two of the Well because leg one had already been cemented back before its approval had even been sought b) Duce did not give verbal or written approval to leg three; c) The cost overruns resulted from poor workmanship; d) Coachlight failed to use good oilfield practices in locating the proper placement of the inflatable packer. [16] By letter dated September 12, 1994, Coachlight gave Duce further notice that by virtue of Duce's continuing default Coachlight intended to exercise its rights as Operator pursuant to Article IV, Clause 505 of CAPL 1981. [17] In October of 1994, screw pump was installed on the Well. Although new AFE was prepared for the installation, it was never forwarded to Duce. Coachlight took the position that since it had received no response to the Default Notice, Duce was no longer entitled to information concerning the Well. The screw pump wore out in three months due to breakdown of the rubber compound. Another temporary pump was placed on the Well in February of 1995 and new screw pump and top drive assembly was installed in June of 1995. The total of all of these costs was $99,906.10. Duce was charged its proportionate share being $34,967.14. [18] By letter to Duce dated July 26, 1995 Coachlight once again demanded payment. The total amount owing as at June 30, 1995, including interest, was $160,826.32. The level of the indebtedness was continuing to rise because it included interest charges as well as outstanding operating costs of all joint interest wells and facilities covered by the Operating Agreement. At that time, the joint interest assets included three producing oil wells in addition to the Horizontal Well. Both of the parties also held interests in battery and water plant located at 13-33-6-9-W2. Although Duce held 35% working interest in the producing wells, it only held 7% interest in the battery and water plant with the remaining 93% interest being held by Coachlight. As producer, Duce therefore assumed considerably higher percentage of the battery costs and these costs rose significantly with the extremely high water volumes from the Horizontal Well. [19] As at September 30, 1993, before operations commenced on the Horizontal Well, Duce had an outstanding balance of $3,871.88 owing to Coachlight with respect to regular lifting and production costs of their joint interest wells. By June 30, 1995 these outstanding costs had risen to $49,701.61, including any expenditures under $25,000.00 for the wells for which CAPL 1981 did not require an AFE. [20] In its July 26, 1995 demand letter, Coachlight indicated that it was still prepared to accept surrender and quit claim in full satisfaction of the amount owing but gave notice that in default of payment in full or the granting of quit claim, it would proceed with steps to recover the indebtedness. The within action was commenced October 4, 1995. The counterclaim was filed November 20, 1995. [21] Based on the foregoing facts as found by the Court, the issues to be determined between the parties are as follows: 1. Is Duce liable to Coachlight for 35% of the costs referred to in the Supplemental AFE? 2. Is Duce liable to Coachlight for 35% of the screw pump costs incurred after the Default Notice? 3. Was Coachlight negligent in conducting the drilling operations or did it otherwise breach its obligations under CAPL 1981? 4. Is Duce liable for the full operating losses of the joint interest wells, including battery costs as charged by Coachlight? 1. Costs in excess of the Original AFE [22] The plaintiff claims that the defendant is liable for 35% of all drilling and completion costs under both the Original AFE and the Supplemental AFE. These costs total $582,049.48 with Duce's share being $203,717.31. The defendant argues that its maximum liability for drilling and completion costs is 35% of 110% of the Original AFE amount or $156,637.25. On this issue, the defendant relies primarily on the third paragraph of Clause 301 of Article III of CAPL 1981. Clause 301 provides: 301 CONTROL AND MANAGEMENT OF OPERATIONS The Operator is hereby delegated the control and management of the exploration, development and operation of the joint lands for the joint account, provided it shall consult with the Joint-Operators from time to time with respect to decisions to be made for the exploration, development and operation of the joint lands, and keep the Joint-Operators informed with respect to operations planned or conducted for the joint account. Subject to Clause 304, the Operator shall be entitled to make or commit to such operating expenditures for the joint account as it shall consider necessary and prudent in order to carry on good and workmanlike operation for the joint account, provided the Operator shall not make or commit to an expenditure for the joint account for any single operation, the total estimated cost of which is in excess of twenty-five thousand ($25,000) dollars without written Authority for Expenditure from Joint-Operators, unless the expenditure is considered by Operator to be necessary by reason of an event endangering life or property. Particulars of each such event shall be reported promptly to the Joint-Operators. Notwithstanding the foregoing, if the Operator while conducting any single operation for the joint account, which operation is covered by written Authority for Expenditure, incurs or expects to incur expenditures for the joint account in excess of the total amount authorized in writing by the Joint-Operators for that operation plus ten (10%) percent thereof, the Operator shall forthwith so advise the Joint-Operators and submit for their approval written supplementary authority for such excess expenditures. [23] Duce's primary position is that since legs two and three were not contemplated under the Original AFE, it is not responsible for any of these costs. In support of this position it relies on Passburg Petroleums San Antonio Explorations Ltd. and D.W. Axford Associates Ltd. 1987 CanLII 3238 (AB QB), [1988] W.W.R. 645, (1987), 57 Alta. L.R. (2d) 57 where the Court held that an operator could not recover the costs of directionally drilled well from the joint-operators where the signed AFE made no direct or indirect reference to the fact that the well would be anything other than standard vertical well. In Passburg, the Court found that the joint-operators had not agreed to directionally drilled well and that as the signed AFE did not refer to directional well, it could not be relied on by the operator as authority to incur costs for such well. [24] This case is clearly distinguishable from Passburg. Here, there is no question but that the Original AFE specified and that both parties agreed that the Well was to be horizontal well. By the Original AFE, the parties also agreed that the target producing zone was the Frobisher limestone. The evidence is undisputed that leg one did not result in the type of well described in the Original AFE. The horizontal length of leg one is approximately 230 metres. Not only were just approximately 20 metres of its horizontal length within the target zone, but the end of the well bore and the majority of its horizontal length were within the water bearing Marley formation. The Court therefore agrees with Coachlight's position that leg one did not satisfy the Original AFE and that producing well like leg one was never contemplated by the Original AFE. The Court also finds that at the material time, Duce never suggested that the parties pause to consider stopping at leg one. [25] At trial, the defendant contended that the Marley formation could have been commercially produced and that by plugging back leg one as it did, the plaintiff destroyed perfectly good well capable of producing no less than 100 barrels of oil per day. The plaintiff disagreed. It contended that the Marley is known water bearing formation and that leg one was incapable of commercial production. Of course, the expert evidence of both parties is purely theoretical since leg one has been cemented in and neither contention can now be proven or disproven. However, from the Court's perspective, it is not necessary to decide the issue as the Court is satisfied that Duce approved of and consented to the plugging back of leg one and the drilling of leg two. [26] Duce went to considerable efforts to convince the Court that it was deprived of valuable asset through the plaintiff's unauthorized actions of plugging back leg one. The defendant's entire argument on this issue was predicated on its position that it did not voluntarily agree to proceed with leg two but was forced to do so because leg one had already been plugged back before it was consulted by Coachlight. As indicated, the Court does not accept Duce's position in this regard. The evidence establishes that Mr. Duce and Mr. Maguire had 30 minute telephone discussion on October and that the plugging back of leg one did not commence until approximately 4:30 a.m. on October 8. Although the schematic drawings were not faxed to Duce until after the plugging back, the Court accepts Mr. Maguire's evidence that the plan for leg two was discussed and agreed to during the one half-hour telephone discussion on the afternoon of October 7. The Court not only accepts Mr. Maguire's evidence on this issue but also finds that at the relevant time of October to October 8, Mr. Duce had not yet expressed, and perhaps had not yet even formed, the opinion that the Marley formation in which leg one was primarily drilled was capable of producing or that leg one should have immediately been placed on production. The Court is inexorably moved to this conclusion as the undisputed evidence is that the possibility of producing the Marley was never raised with Mr. Maguire during the October telephone discussion or in any subsequent telephone discussions throughout the period of drilling and completion of the Well. The possible lost opportunity to produce leg one was likewise not referred to in Duce's letter of July 27, 1994 in which, nearly one year later, Duce summarized its reasons for refusing to pay its share of the Supplemental AFE. [27] The Court also finds that Duce agreed to the drilling of leg three and to the installation of the inflatable packers. Consent to leg three and resulting increased costs was given during the 29 minute telephone discussion of October 14. Shortly after that conversation, Coachlight faxed to Duce schematic drawing of the sidetrack that they had discussed. Mr. Duce testified that after receipt of the faxed drawing he spent the evening of October 14 until 3:00 a.m. in the morning of the 15th reviewing his well file. At that time, Mr. Duce erroneously thought that Coachlight was drilling the sidetrack in northerly direction. He also erroneously thought that drilling of the sidetrack had commenced before his telephone discussion with Mr. Maguire on the 14th. He testified that if he had known on the morning of the 15th that drilling had not yet recommenced, he would have called Coachlight and argued against proceeding with the sidetrack, particularly if it was not being drilled to the north. Mr. Duce further testified that in such circumstances, he also would have told Mr. Maguire that it was wet where he intended to drill the sidetrack. Mr. Duce's misunderstanding about the commencement of drilling of the sidetrack arose from discussion he overheard on October 14 at the Estevan office of the Department of Energy and Mines. When he spoke to Mr. Maguire later on the same day he deliberately chose to omit telling Mr. Maguire that he had heard that drilling on the sidetrack had already commenced. Unfortunately, Mr. Duce's lack of candidness deprived Mr. Maguire of the opportunity to correct this error. Mr. Maguire did not know that Mr. Duce was operating under the misapprehension that Coachlight was not sincerely seeking Duce's input and consent to the proposed sidetrack or that Mr. Duce felt that he had no choice in the matter because Coachlight was just going to go ahead in any event. Mr. Maguire had no way of knowing that Duce thought the sidetrack was already in progress. As far as he knew, Duce was freely and willingly agreeing to the leg three sidetrack with full knowledge that by proceeding in that manner, the parties would be exceeding the Original AFE. [28] The Court finds that consent to the installation of the inflatable packers was given during the 32 minute telephone discussion of October 25. Not only does the Court accept Mr. Maguire's evidence on this issue, it also notes that in its letter of July 27, 1994 Duce only complained that the packer was improperly placed and makes no complaint that it was an unauthorized expenditure. Based on the October 25 discussion, Duce expected two packers to be installed but given the difficulties in installation, Coachlight terminated efforts after only one had been installed. The Court also finds that during the same telephone discussion, Duce specifically authorized the cost of the packers to be added to the Original AFE. Therefore, the Court finds that Duce is responsible for its 35% share of the cost of the installed packer notwithstanding that packers were not contemplated in the Original AFE. [29] Although the Court has found that Duce consented to the drilling of legs two and three, it also finds that there was no specific discussion between the parties regarding Supplemental AFE for such costs. Duce contends that it can only be liable for costs in excess of 110% of the Original AFE if it signs its approval to the Supplementary AFE. It has refused to do this. Coachlight has never disputed its obligation to issue the Supplemental AFE but argues that Duce's signature to the document is not required because its consent was given when the excess costs were being incurred at each stage of the drilling and completion of the Well. [30] In support of its position, Duce relies on Morrison Petroleums Ltd. Phoenix Canada Oil Co. et al (1997), 198 A.R. 81. In Morrison, the signed AFE, issued pursuant to CAPL 1981, estimated drilling costs at $1.1 million while actual costs were $3.2 million. The operator knew prior to spudding that there would be cost overruns but it failed to advise its joint-operators. The joint-operators refused to pay the excess amount because their approval had not been obtained before the additional costs were incurred. In the circumstances, and in reliance on Clause 301 of CAPL 1981, the Court limited the operator's recovery to 110% of the original AFE amount. In so doing, the Court held that an operator under CAPL 1981 is required to obtain authorization from the joint-operators prior to incurring expenditures in excess of the AFE and is also required to issue an AFE for the excess expenditures. [31] This Court entirely agrees entirely with the interpretation of Clause 301 of CAPL 1981 as found in Morrison. However, the facts in this case are significantly different from those in Morrison. Here, the Operator did not have prior knowledge that the Well was going to be overexpended. This is also not case where the operator casually advised the joint-operators of its intention to issue supplemental AFE after the cost overruns had already been incurred with an attempt thereafter to treat their silence as tacit approval of the excess expenditures. Here, the Operator consulted with its Joint-Operator on each and every occasion that significant decision had to be made that could result in cost overruns. And here, the consultations all occurred before the excess expenditures were made. Given the credits that still had to be negotiated with Becfield, it was impossible for Coachlight to precisely know at what point the Original AFE was or would be overspent, but it complied, as best it could in the circumstances, with its Operator's responsibility to advise its Joint-Operator when to expect that they would be incurring overexpenditures. [32] Although Coachlight did not submit the Supplemental AFE to Duce until December 31, 1993, the Court in Morrison found that an operator's obligation under Clause 301 to advise of cost overruns and its obligation to issue supplementary AFE need not be satisfied simultaneously. In paragraphs 52 and 52 of Morrison, the Court states: [52] Clause 301 of CAPL 1981, in its third paragraph, requires that an operator "forthwith" submit to its joint operators for their approval Supplementary AFE for cost overruns in excess of 10%. Counsel for the defendants contend that the language of the third said paragraph is mandatory and not merely permissive and that Morrison had an obligation to advise the defendants as soon as it expected such cost overruns and also to submit to the defendants Supplementary AFE. The Oxford English Dictionary defines "forthwith" as "immediately, at once, without delay or interval." The definition of this word has been expanded by the courts to include "as soon as practicable", "as soon as possible in the circumstances", "without unreasonable delay" and "as soon as reasonably can be". See: R. v. Seo (1986), 1986 CanLII 109 (ON CA), 13 O.A.C. 359; 54 O.R.(2d) 293 (C.A.), at pp. 317-318; R. v. Precourt (1976), 1976 CanLII 692 (ON CA), 39 C.C.C.(2d) 311 (Ont. C.A.), at p. 322; R. v. Parrot (1980), 1979 CanLII 1658 (ON CA), 27 O.R.(2d) 333 (C.A.), at pp. 339-340; Chuman v. Canada (1983), Admin. L.R. 1(F.C.T.D.), at pp. 6-7. [53] Counsel for the plaintiff argues that the amount of the cost overrun could not be determined until the drilling operation was finalized and that therefore the Supplemental AFE need not be issued sooner. However, it seems to me that inclusion of the word "expects" in paragraph three of Clause 301 contemplates, firstly, advice being given to the joint venture partners in situation where the operator has come to realization that there will be cost overruns, and secondly, the issuance of Supplemental AFE as soon as practicable. Clearly the two events need not be coincidental in point of time. [33] Installation of the packer was completed by early November, 1993 and the Supplemental AFE was issued on December 31, 1993. In the circumstances of this case, it might be said that the Supplemental AFE was actually issued prematurely because by December 31, Coachlight had not completed its negotiations for credits from Becfield. Although the original Becfield billing was just under $18,000.00 less than its actual time in the field, further credits on the account were successfully secured by Coachlight but not until some months after December, 1993. The Court is therefore satisfied that the Supplemental AFE was issued as soon as practicable. [34] Based on all of the foregoing, the Court finds that Duce had an obligation to approve the Supplemental AFE once it was submitted by Coachlight or at least to approve it subject to what further credits Coachlight could obtain through negotiations or otherwise, with Becfield. The Court has already found that Duce approved all of the work covered by the Supplemental AFE before the expenditures for the work had been incurred. Thus, although CAPL 1981 requires an operator to issue supplemental AFE for joint-operator approval, if the joint-operators have pre-approved the extra work with knowledge that it would or might result in cost overruns, they are clearly contractually obliged to approve the supplementary AFE unless it contains other expenditures for work that was not authorized by them. joint-operator who has approved of expenditures during the operations that will result in or likely result in the original AFE being exceeded cannot thereafter refuse to approve the supplemental AFE for such costs in an attempt to shield itself from such expenses. The Court therefore finds that Duce is responsible for 35% of all costs incurred under the Original AFE as well as 35% of all costs incurred under the Supplemental AFE. 2. liability for the screw pump costs [35] The screw pump was installed after the August 18, 1994 time limit given to Duce to respond to the Default Notice had expired. Under Clause 505(b)(i) of CAPL 1981, an operator is entitled under such circumstances to withhold from the defaulting joint-operator any further information and privileges with respect to the operations. The Court is therefore satisfied that Coachlight was entitled to install the screw pump without consulting with its defaulting Joint-Operator who was also not entitled to approve the AFE for the screw pump operation. Duce is therefore liable for 35% of the screw pump costs. 3. Operator's negligence and breach of CAPL 1981 obligations [36] The defendant alleges that contrary to Clause 304 of CAPL 1981 Coachlight failed to carry on operations relating to the Horizontal Well in diligent and good and workmanlike manner in accordance with good oilfield practice and in accordance with the regulations. Although Mr. Duce testified that Coachlight failed to obtain the approval of Saskatchewan Energy and Mines for legs two and three, the Court is satisfied that all necessary regulatory approvals were properly acquired. [37] Coachlight conceded that the drilling contractor that it hired on behalf of the parties encountered number of problems during the drilling of the Well. It was because of these problems that Coachlight had its on-site supervisor prepare the Lost Time Report. Becfield acknowledged its contributions to the problems as set forth in the Lost Time Report by granting substantial reductions in its billings. Based on time in the field, Becfield's bill would have been approximately $160,000. In the end, after all credits, its final bill was $81,148. Duce led no evidence to suggest that Becfield's final bill was still too high or that for the most part, the equipment failures that Becfield experienced were due to negligence or defective tools as opposed to simple bad luck. On the evidence, the Court has no basis to conclude that Duce suffered any losses as result of the drilling contractor selected by Coachlight. [38] Duce also contends that Coachlight was negligent by continuing to drill after it discovered the unexpected geological low in leg one. The sketch prepared by Mr. Maguire on October shows that, based on the information learned from the drilling of leg one, the bottom of the Marley formation dipped 1.97 degrees in space of only 119.8 metres. Mr. Maguire testified that he had expected the Marley to dip but not to that extent. The sketch also showed that at the lowest point in leg one, the Marley was lower than it was at the of 33 vertical well bore but not as low as at the of 33 vertical well bore. Mr. Maguire testified that he was therefore hopeful that the Marley would flatten out as they continued drilling horizontally towards the of 33 well. Of course, at that time, he did not have the benefit of the two other horizontal well bores. Given the information available at the time, the Court is far from satisfied that the decision to continue drilling towards the of 33 vertical well was an imprudent, reckless or negligent one. [39] Duce further contends that Coachlight failed to forthwith provide it with daily drilling reports as required under Clause 702 of CAPL 1981. The Court agrees but finds that no losses can be attributed to this omission. Mr. Maguire testified that if daily drilling reports were not faxed to Duce, as had become the standard practice in the industry, it was because Mr. Duce indicated he did not want to be inundated with paper. Mr. Maguire testified, and the Court accepts, that during every significant telephone discussion that he had with Mr. Duce in which major decision had to be made, he specifically asked Mr. Duce if he had all the information that he needed. If Mr. Duce had wanted the daily drilling reports, they would have been faxed to him. 4. joint interest operating losses [40] Coachlight claims operating losses up to June 30, 1995 owed by Duce Oil in the amount of $49,701.61. These expenses relate to the Horizontal Well and to all other joint interest wells drilled under the Operating Agreement. Each of the partners also holds an interest in the battery and water plant located at 13 of 33-6-9-W2. Coachlight is the Operator of the battery. [41] Coachlight and Duce, in their capacity as owners of the battery, have been charging battery costs to Coachlight and Duce, as working interest owners, based on total emulsions from the Horizontal Well and their joint interest vertical wells located at 11 of 32-6-9-W2, of 33-6-9-W2, and 13 of 33-6-9-W2. Because Duce holds 35% interest in the four producing wells but only 7% interest in the battery, in the end, it bears significantly higher proportion of the costs of dealing with the high water volumes from the wells, and in particular, from the extremely high water volumes from the Horizontal Well. Given Coachlight's 93% interest in the battery site, it can continue to produce the Horizontal Well at loss in its capacity as working interest owner since that loss is more than off-set by the profit it realizes on its interest in the battery. Of course, significant portion of the battery profit that Coachlight earns is at the expense of Duce who is responsible for 35% of the battery's income but receives only 7% of its profits. Duce raises two concerns regarding these battery costs. Firstly, it argues that the battery owners are only entitled to charge fees based on oil volumes rather than on total emulsion volumes. In the alternative, it argues that Coachlight is in breach of its fiduciary duty to Duce by continuing to produce the Horizontal Well and charging Duce its share of the water costs to the ultimate benefit of Coachlight. [42] As to the first issue, neither party could produce an agreement that details an agreed to method of charging for the use of battery facilities. Mr. Maguire testified that the battery charges were set by Duce's and Coachlight's predecessors and that other than for few months in 1993 and 1994, the battery charges for the last ten years have always been based on total emulsions. The change to charging based only on oil volumes was made shortly after Coachlight acquired its interest in the battery and was done as temporary measure until ownership of the battery could be realigned to be similar to ownership of the working interests in the wells using the facility. To effect this realignment and thereby increase Duce's ownership in the battery, Duce had to pay corresponding share of the value of the increased interest in the battery being acquired. When it became clear that no agreement could be reached on the value of the battery and that the ownership interests would not change, Coachlight reverted to the longstanding method of billing. [43] As there is no evidence that the method of calculating battery charges that was in effect over the preceding 10 years was not in accordance with the arrangement between Duce's and Coachlight's predecessors in title, the Court is not prepared to interfere with that method of billing. [44] As to the second issue, Duce argues that the Horizontal Well is not commercially economic Well. It contends that Coachlight continues to produce the Well solely for the battery revenues that it generates to Coachlight's benefit as Operator but to the financial determent of its Joint-Operator. Coachlight counters that it must continue to produce the Well or the parties will risk losing the petroleum and natural gas lease of the lands upon which the Well is drilled. Mr. Maguire testified that Coachlight believes that there is more value in the SW-33-6-9-W2. He provided the Court with two possible scenarios for future recovery under the lease but indicated that neither of these options could be pursued while the parties were engaged in dispute over the Horizontal Well. [45] By continuing to produce the Horizontal Well, Coachlight is preserving the underlying lease for the benefit of both parties. For the time being, the Court accepts Coachlight's position that the Well must be produced to protect further value in the underlying lease. Once the parties have complied with the terms of this Judgment they will be in position to determine their future plans for these lands. If, at some time in the future, no steps have been taken to exploit this further value in the lease, Duce is at liberty to ask the Court to consider whether, at that time, Coachlight is in breach of its fiduciary relationship to Duce by continuing to produce the Horizontal Well in circumstances that earn it significant profit at the battery site at the expense of Duce. [46] After June 30, 1995, Coachlight voluntarily gave up charging any fees at the battery site because, in Mr. Maguire's words, "it was too expensive to determine how much Duce Oil wasn't going to pay that month". The Court has determined that it would be inequitable to permit Coachlight to now charge Duce Oil for amounts that Coachlight had in effect abandoned for each month that it failed to render monthly bill to Duce. Accordingly, Coachlight shall be prohibited from hereafter charging Duce for unbilled battery fees for the period June 30, 1995 to and including March 31, 1999. CONCLUSION [47] The defendant attempted throughout the trial to establish that the plaintiff was a highhanded, arrogant Operator who simply forgot that it had a minority partner. The totality of the evidence simply does not bear this out. The Court finds that Duce is liable to Coachlight for: 1. The sum of $96,286.95 representing 35% of the unpaid costs of the Original AFE, the Supplemental AFE and the costs of the screw pump. 2. The sum of $49,701.61 representing regular lifting and production costs for the Horizontal Well and the other joint interest wells plus any expenditures on such wells under $25,000 which did not require an AFE. [48] On June 20, 1994 Coachlight gave Duce written notice that it was exercising its option under Clause 502 of CAPL 1981 to charge interest. In its letter of January 10, 1994, Coachlight had indicated that it would charge Duce interest if its late payments resulted in the parties' suppliers charging them interest. The Court therefore finds that Coachlight is only entitled to the CAPL 1981 interest from its notice of June 20, 1994. Based on the interest calculation provided by Coachlight, Duce is liable for interest of $10,424.65 for the period June 30, 1994 to June 30, 1995. Duce is also liable for interest on the sum of $145,988.56 at the Canadian Western Bank's prime rate plus 2% from June 30, 1995 to March 12, 1999. [49] In default of payment of the amounts provided for hereunder within 90 days of the date of Judgment the plaintiff shall be entitled to a builders\' lien on the entire estate or interest of the defendant in the following lands:All petroleum, natural gas and other hydrocarbons except coal and valuable stone within, upon or under:Firstly: Section 33Township 6Range 9West of the Second MeridianSecondly: Legal Subdivision 11 & 12 ofSection 32Township 6Range 9West of the Second Meridiantogether with all estates or interests of the defendant in the petroleum and natural gas when recovered from the said lands and the proceeds therefrom and the interest of the defendant in the fixtures, machinery, tools, appliances and other property in or on any oil or gas well on the said lands or the surface thereof and the appurtenances thereto. [50] The plaintiff shall be entitled to its taxable costs. PRITCHARD, J. DATE: March 12, 1999 CENTRE: Yorkton INITIALS: pw

Coachlight sought an order requiring the defendant to pay the balance of its 35% share of $681,955.58 as costs for drilling a petroleum/natural gas well plus $49,701.61 representing its 35% share of the lifting and production costs under the Operating Agreement. The plaintiff also sought a declaration that it holds builders' liens against the defendant's interest in the Well and other joint interest assets to the extent of the debts due. Duce Oil denies liability for any costs of the horizontal well in excess of $447,535 being 110% of the authorization for expenditure executed with respect to the Well. The defendant counterclaimed on the basis the plaintiff conducted certain operations without authority, was negligent in conducting operations and overcharged or made improper charges in its accounting procedures. HELD: 1)Duce was liable for $96,286.95 representing 35% of the unpaid costs of the original and supplemental authorization for expenditures (AFE) and the costs of the screw pump. 2)Duce was responsible for $49,701.61 representing regular lifting and production costs and other joint interest wells plus expenditures under $25,000 which did not require an AFE. 3)Coachlight was only entitled to interest from the time of its written notice on June 20/94 that it was exercising its option under the CAPL 1981 to charge interest. 4)In default of payment within 90 days of Judgment the plaintiff would be entitled to a builders' lien in the entire estate or interest of the defendant in all petroleum, natural gas and other hydrocarbons except coal and valuable stone, upon or under the lands as specified together with all proceeds from the defendant's interests in petroleum and natural gas and its interest in fixtures, machinery, tools, appliances and other property in any of the defendant's oil or gas wells on those lands. 5)The totality of the evidence did not support the portrayal by the defendant of the plaintiff as a high handed, arrogant operator who simply forgot it had a minority partner. 6)The plaintiff was entitled to its taxable costs.

5_1999canlii12516.txt

J. C.A. No. 125259 NOVA SCOTIA COURT OF APPEAL Hallett, Freeman and Roscoe JJ.A. BETWEEN: HEALTHVISION CORPORATION, body corporate formerly known as HCS HEALTHCARE SYSTEMS INC., body corporate and J. COLLEEN KILLORN Respondent William L. Ryan, Q.C. and Nancy Rubin for the Appellant Raymond S. Riddell for the Respondent Appeal Heard: September 10, 1996 Judgment Delivered: January 10th, 1997 THE COURT: Appeal allowed per reasons for judgment of Hallett, J.A.; Roscoe, J.A. concurring; and, Freeman, J.A. dissenting. FREEMAN, J.A.; (Dissenting) The appellant Healthvision Corporation, which sells computer systems including hardware and software to hospitals and other health care facilities, has appealed a jury award of $60,000 damages for mental distress in a wrongful dismissal action brought by the respondent. The Facts The respondent Colleen Killorn, then Colleen Clark, was hired November 9, 1989, as account manager with sales territory consisting of the four Atlantic provinces. At that time the appellant had no history of sales in the Atlantic Provinces and it was expected to take her three or four years to develop the territory. Her responsibilities, as the only account manager, in the territory included not only making sales contacts but co-ordinating the activities of the specialists within the company who had to design and build the system required by the customer. Her conditions of employment were set out in sales compensation plan which was automatically renewable each March 31st if not renegotiated at the instance of either party as of that date. The plan called for base salary of $40,000 plus commissions of five per cent of software license revenue and of the gross margin on new hardware accounts and two per cent on existing hardware accounts. The sales compensation plan had not been changed prior to March 31, 1993. In 1988 the province of Prince Edward Island had opened negotiations with number of suppliers, including the appellant, for computer system to serve all Island hospitals. That proposal was known both to the company and to Ms. Killorn through her previous employment. It was not specifically referred to in her employment contract. Both Ms. Killorn and the company learned in February, 1993, that the P.E.I. negotiating committee had chosen the Healthvision proposal. This was confirmed in March, 1993. Ms. Killorn anticipated commission of $90,000 because the pending sale was within her sales territory. Ms. Killorn played role in securing the contract and had contacts with the P.E.I. negotiating committee but the sale was co-ordinated through the Vancouver office and David Wlson, vice-president of marketing and sales, was involved in the negotiations. In mid-1992, without notifying Ms. Killorn, the appellant had assigned responsibility for the P.E.I. contract to Mr. Wilson. As of March 16, 1993, shortly after learning that its P.E.I. proposal had succeeded, the appellant sent Ms. Killorn "a new offer of employment", essential parts of which were non-negotiable. It provided for four percent commission on software licenses and the net margin on hardware sales, plus scheme of cash bonuses for exceeding revenue targets which were not stated. It was signed by Bob Brand, vice president of finance and administration and Mr. Wilson, her immediate superior. Ms. Killorn did not sign the offer. She telephoned Mr. Wilson for clarification as to commissions and cash bonuses and was told that Prince Edward Island was his target, not hers, and that the commissions were to be split with others. Ms. Killorn sent Mr. Wilson memo asking for clarification and received no response. She met with Mr. Wlson in Toronto and was told she would not be receiving the full commission for Prince Edward Island, but he would not elaborate. She repeated her memo asking for clarification and received fax message advising her that her target for the year, to qualify her for cash bonus, was $4,700,000 in product sales, excluding Prince Edward Island. Ms. Killorn wrote to Mr. Wilson May 13, 1993, expressing concerns that her target was unrealistically high and received no response. The company was aware of Ms. Killorn's expectations from the P.E.I. contract, but at no point did anyone discuss them forthrightly with her or explain the company's position. Ms. Killorn attempted to discuss the matter with Mr. Wlson at sales conference in British Columbia in June, 1993, but found him "agitated" toward her and unwilling to deal with her concerns. She said she was upset with Mr. Wilson's unwillingness to communicate with her and feeling crushed. Ms. Killorn testified she had no previous emotional difficulties but had become increasingly upset when no one in the company would communicate with her about the altered sales compensation plan. Dr. Colin Davey, her physician, noted "depression symptoms" in Ms. Killorn on an office visit May 14, 1993, and prescribed Zoloft, an anti-depressant with numerous side-effects. Two weeks later, on May 28th, she was again diagnosed with depression and told to stay on the Zoloft for another month. On June 7th Dr. Davey spoke by telephone with Ms. Killorn in her hotel room in Vancouver and followed this with faxed letter advising that she required time off for medical reasons. She personally advised the company at the Vancouver office on June 7, 1993, that she needed time off. Without informing her, the company sent letters to all of her prospective customers advising that she was going to be away for an extended period of time. Dr. Davey saw Ms. Killorn on July 6, 1993, and advised her she could return to work. When she called the company on that date to say that she was coming back she was told her return would have to be "co-ordinated" through Mr. Wilson and the Toronto office because of the letters. She returned to work on July 9, 1993. She testified that she hoped to remain with Healthvision indefinitely, but her dealings with Mr. Wlson made her feel insecure about her future with that company. She wrote two prospective employers, enclosing resumes, on July and July 10, 1993. She was advised that she would be visited in her Halifax office by Ms. Lucy McKiernan, the company's director of administration, for physical audit. The real purpose of Ms. McKiernan's visit was to deliver written notice of termination, which she did on July 12, 1993. The letter of dismissal offered $14,000 severance pay, the equivalent of four months' notice based on the salary element of her compensation package. Her office was stripped of everything but the desk and telephone and all files, including her notes, were removed to the Toronto office. She rejected the compensation offer and brought action for wrongful dismissal. About the same time letter was sent from the P.E.I. Joint Management Team confirming its intention to finalize negotiations with Healthvision for contract to be worth approximately $2,770,282 and the hospital in Yarmouth, N.S. confirmed its intention to purchase $365,000 of Healthvision's product. Neither of these sales became final contracts within ninety days of Ms. Killorn's dismissal and she was not entitled to commissions on them. There was evidence that Mr. Wilson would receive "benefit" from the Prince Edward Island transaction. Ms. Killorn had been given no indication that the company had any concerns with her performance, and she had no prior warning that she might be dismissed. She was given no reason for her dismissal and her employment record falsely stated that she was terminated because of shortage of work. "To say was crushed would be complete understatement ." Ms. Killorn testified. "I just could not believe that this could happen." She again sought medical advice and was on medication for depression at the time of the trial. She had not found alternate employment. Her husband testified that he first noticed change in her emotional and mental state in March of 1993 when she received the non-negotiable offer of changed compensation package and could not get response from the company to her concerns. She went into depression, sliding to emotional depths he had not seen in her before. She did not eat. She had fits of crying and bouts of rage. She ceased communicating. Her relationship with her husband and children suffered. She was still showing ill effects at the time of trial. The Jury's Conclusion The jury found that Ms. Killorn was entitled to six months' notice. It also found that she suffered mental distress as result of conduct arising out of the dismissal, "other than the dismissal itself," which would warrant additional damages of $60,000 for mental distress. The jury described this conduct as follows: The conduct of Health Vision Corp. was high handed and callous. Mrs. Killorn was misled into believing her office was being audited when in fact she was also being terminated, this resulted in further financial turmoil, added mental distress to her and her family. There can be little doubt the jury had the lost commissions in mind, although the language used is not specific on the point. The jury had heard effective addresses by both counsel in which the effect of termination on the commissions was central issue. While the appellant did not allege incompetence nor suggest that Ms. Killorn was dismissed for cause, its counsel, Mr. Ryan, down played the value of her efforts and emphasized that she had not met her sales objectives. Mr. Riddell on her behalf emphasized that Ms. Killorn had been unfairly treated during the chain of events that began with the revival of interest in the Prince Edward Island transaction in February, 1993, and ended with her termination. The genesis of the language used by the jury can be found in his remarks: In nutshell, the biggest nutshell, is Colleen got ripped off and she was treated really shabbily by this company. think she was treated in high-handed and callous manner. That's my theory. And she got ripped off. Mr. Riddell emphasized that Ms. Killorn was not given written response to her inquiries as to the effect of the purported change in the compensation scheme. She asked for response in writing and Bob Brand said he gave answers to Mr. Wilson. They were never communicated to Colleen. Mr. Brand would have had the decency and courtesy and professional responsibility to have written response. Mr. Wilson didn't. And right after sick leave, she was fired with no warning, no reprimand, no expression of displeasure, no assistance, no explanation, leaving her to explain to potential employers she was fired without explanation. mean that has defamatory effect. What are they going to think? They're going to think the worst. And you'll be asked to put down conduct of Healthvision and that's the kind of conduct we're looking at, okay. Grounds of Appeal The appellant alleges two errors by the trial judge: he should not have permitted the issue of mental distress to go to the jury, and he mischarged the jury on the question of foreseeability. It argues that the answers of the jury "were generally unreasonable, unjust, perverse and contrary to law and evidence," could not have been given by reasonable persons; were not supported by sufficient material evidence to support its answers. It argued that the jury erred in law in finding that the conduct of the appellant caused mental distress to the respondent, and that the jury's assessment of damages for mental distress was inordinately and disproportionately high. Damages for Mental Distress Prior to the decision of the Supreme Court of Canada in Vorvis v. Insurance Corporation of British Columbia, 1989 CanLII 93 (SCC), [1989] 94 N.R. 321 the judicial rule of thumb was that damages in wrongful dismissal cases were limited to the length of the appropriate notice period, and were not available for mental distress. Addis v. Gramophone Co. Ltd., [1909] A.C. 488 (H.L.) stood as authority that: Where servant is wrongfully dismissed from his employment the damages for the dismissal cannot include compensation for the manner of the dismissal, for his injured feelings, or for the loss he may sustain from the fact that the dismissal of itself makes it more difficult for him to obtain fresh employment. It was recognized, however, that the indemnity the dismissed employee was entitled to in lieu of notice could reflect lost commissions. By the 1980s the authority of the Addis rule had begun to erode. In Pilon v. Peugeot Canada Ltd. (1980), 29 O.R. 2d. 711 Galligan J. of the Ontario High Court of Justice considered the case of an automotive service manager wrongfully dismissed after 17 years loyal service, despite assurances of life-long security given in lieu of higher salary. In addition to damages for 12 months' notice, Galligan J. awarded $7,500 for the mental distress, anxiety, vexation and frustration caused by the defendant's breach of contract. It seems to me, and say this with the greatest of deference, that the issue before the Court in Peso Silver Mines Ltd. (N.P.L.) v. Cropper, 1966 CanLII 75 (SCC), [1966] S.C.R. 673, 58 D.L.R. (2d) 1, 56 W.W.R. 641, was the entitlement to compensation for damages to reputation, not whether mental distress could be an element of damages in breach of contract case. think, with respect, therefore, that the words "wounded feelings" at p. 684 S.C.R., p. 10 D.L.R. of that judgment are obiter dictum. In Delmotte v. John Labatt Ltd. et al. (1978), 1978 CanLII 1410 (ON SC), 22 O.R. (2d) 90 at p. 92, 92 D.L.R. (3d) 259 at p. 261, R.E. Holland, ., thought that the law relating to damages was changing. Professor Rose in his commentary in 55 Can. Bar Rev. 333 (1977) at p. 342, implied that the famous Jarvis v. Swans Tours, [1973] Q.B. 233, may be only the preliminary skirmish in general assault upon Addis v. Gramaphone. In my opinion, it cannot fail to have been in the contemplation of the defendant that if it suddenly, without warning, unlawfully discharged man whom it had led to believe was secure in his job for his working life, there would be the gravest likelihood that such man would suffer vexation, frustration, distress and anxiety. The current jurisprudence as to claims for mental distress in wrongful dismissal cases has developed as courts have sought to interpret or reconcile the two distinct approaches expressed by McIntyre and Wilson JJ. in Vorvis v. Insurance Corporation of British Columbia, supra, case well known for McIntyre J.'s definitions of aggravated and punitive damages at pp. 333-334: Punitive damages, as the name would indicate, are designed to punish. In this, they constitute an exception to the general common law rule that damages are designed to compensate the injured, not to punish the wrongdoer. Aggravated damages will frequently cover conduct which could also be the subject of punitive damages, but the role of aggravated damages remains compensatory In this contrasting sense, aggravated damages describes an award that aims at compensation, but takes full account of the intangible injuries, such as distress and humiliation, that may have been caused by the defendant's insulting behaviour. Vorvis had been engaged by I.C.B.C. in 1973 as junior solicitor and was dismissed in 1981 some two years before his pension vested. He found work at similar salary, but not as lawyer, in seven months. The corporation was unable to prove allegations of incompetence. At trial Vorvis was awarded seven months' notice but his claims for punitive damages and aggravated damages for mental distress were dismissed on the authority of Addis v. Gramaphone Co., Ltd. as restated in Peso Silver Mines Ltd. (N.P.L.) v. Cropper, 1966 CanLII 75 (SCC), [1966] S.C.R. 673 and Harvey Foods Ltd. v. Reed (1971), 3. N.B.R. (2d) 444 (N.B.C.A.). This was substantially affirmed on appeal. On further appeal to the Supreme Court of Canada, McIntyre J., writing for three-judge majority including Beetz and Lamer, JJ., first set out the basic law in wrongful dismissal cases as follows: The law has long been settled that in assessing damages for wrongful dismissal the principal consideration is the notice given for the dismissal. contract of employment does not in law have an indefinite existence. It may be terminated by either employer or employee and no wrong in law is done by the termination itself. An employee who is dismissed is entitled to the notice agreed upon in the employment contract or, where no notice period is specified in the contract, to reasonable notice. He is entitled in the alternative in the absence of due notice to payment of remuneration for the notice period. After review of authorities McIntyre J. concluded at pp. 338-339: From the foregoing authorities, would conclude that while aggravated damages may be awarded in actions for breach of contract in appropriate cases, this is not case where they should be given. The rule long established in the Addis and Peso Silver Mines cases has generally been applied to deny such damages, and the employer/employee relationship (in the absence of collective agreements which involve consideration of the modern labour law regime) has always been one where either party could terminate the contract of employment by due notice, and therefore, the only damage which could arise would result from, failure to give such notice. would not wish to be taken as saying that aggravated damages could never be awarded in case of wrongful dismissal, particularly where the acts complained of were also independently actionable, factor not present here Furthermore, while the conduct complained of, that of Reid (Vorvis' supervisor) was offensive and unjustified, any injury it may have caused the appellant cannot be said to have arisen out of the dismissal itself. The conduct complained of preceded the wrongful dismissal and, therefore, cannot be said to have aggravated the damage incurred as result of the dismissal. Accordingly, would refuse any claim for aggravated damages in respect of the wrongful dismissal. In her dissent, concurred in by L'Heureux Dubé J., Wilson J. stated at p. 356: must respectfully disagree with my colleague's view that conduct advanced in support of claim for damages for mental suffering must constitute separate "actionable wrong" from the breach itself. disagree also that because the conduct complained of preceded the wrongful dismissal it cannot aggravate the damages resulting from that dismissal. Rather than relying on characterization of the conduct as an independent wrong, think the proper approach is to apply the basic principles of contract law relating to remoteness of damage. These were articulated by Baron Alderson of the Court of Exchequer Chamber in Hadley v. Baxendale (1854), Ex. 341; 156 E.R. 145, at pp. 354-355 and at p. 151, as follows: Now we think the proper rule in such case as the present is this: Where two parties have made contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it. Now, if the special circumstances under which the contract was actually made were communicated by the plaintiffs to the defendants, and thus known to both parties, the damages resulting from the breach of such contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from breach of contract under these special circumstances so known and communicated. But, on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he, at the most, could only be supposed to have had in his contemplation the amount of injury which would arise generally, and in the great multitude of cases not affected by any special circumstances, from such breach of contract. For, had the special circumstances been known, the parties might have specially provided for the breach of contract by special terms as to the damages in that case; and of this advantage it would be very unjust to deprive them. At p. 360 she stated: It is my view that the established principles of contract law set out in Hadley v. Baxendale provide the proper test for the recovery of damages for mental suffering. The principles are well-settled and their broad application would appear preferable to decision-making based on priori and inflexible categories of damages. The issue in assessing damages is not whether the plaintiff got what he bargained for, i.e. pleasure or peace of mind (although this is obviously relevant to whether or not there has been breach) but whether he should be compensated for damage the defendant should reasonably have anticipated that he would suffer as consequence of the breach With respect to the claim by Vorvis she concluded at p. 364: .. am persuaded, therefore, that mental suffering would not have been in the reasonable contemplation of the parties at the time the employment contract was entered into as flowing from the appellant's unjust dismissal. would therefore, like my colleague, deny recovery under this head. Justice Wilson's dissent reflects the view which had prevailed until Vorvis, that damages in wrongful dismissal cases arise only from breach of the contract of employment, although the majority view that tortious conduct could result in aggravated damages was not unknown. Ribeiro v. Canadian Imperial Bank of Commerce (1989), 1989 CanLII 4281 (ON SC), 24 C.C.E.L. 225 (Ont. H.C.J.); (1992), 1992 CanLII 7447 (ON CA), 44 C.C.E.L. 165 (C.A.) appears to represent the state of the law prior to Vorvis. The bank terminated an employee and made false allegations of dishonesty against him as result of which prosecution was begun and abandoned by the Crown. He was awarded the three months' notice his contract required and in addition the trial court awarded him $10,000 for mental distress and punitive damages of $10,000. These amounts were increased on appeal to $20,000 and $50,000 respectively. The appeal court left open the question whether damages for loss of reputation could also have been awarded, being of the opinion that "any damages which might have been awarded for loss of reputation would have been subsumed in the award for mental distress." In his comprehensive judgment at trial Carruthers J. stated: Accordingly, must find that the plaintiff is not entitled to an award of damages not based upon the provisions of his employment agreement. If those provisions did not apply, would conclude that the plaintiff was entitled to months' notice of termination. In the present case, the defendant bank has made much of the fact that the plaintiff’s employment with it expressly contemplated that he be honest and act with integrity throughout. The defendant bank wrongfully, and can also say wantonly and recklessly accused the plaintiff of being otherwise and purported to terminate his employment for cause on this basis. have concluded that this conduct on the part of the defendant bank constituted breach of its employment agreement with the plaintiff. Having regard to the nature of the agreement, and specifically the requirements for honesty and integrity on the part of the plaintiff, find that it is reasonable to draw the inference that it was in the contemplation of the parties that if the plaintiff was terminated in this manner he would suffer mental distress. have already concluded that it did in fact do so. Thus the requirements for the application of the second rule in Hadley v. Baxendale have been met, and the plaintiff is entitled therefore to recover damages for his "mental and emotional suffering". Carruthers J. cited at some length the judgment of Weatherston J.A. in Brown v. Waterloo Regional Bd. of Police Commrs. (1983), 1983 CanLII 1697 (ON CA), 43 O.R. (2d) 113, C.C.E.L. including the following passage which identifies one of the problems in strictly contractual analysis: must confess that have some difficulty in considering mental suffering as head of damages for breach of contract. If, in this case, Storwal had dismissed the plaintiff with the proper amount of notice, it would not have been liable in damages for mental suffering even if it could foresee that the manner of dismissal would cause such suffering. That is because there would have been no breach of contract and thus no cause of action. .. It seems to follow that, if an employer miscalculates the amount of reasonable notice required, he opens the door to claim for damages for mental suffering which would not otherwise have been available to the discharged employee. In such case, the damages must flow from the inadequate notice and not from the act of dismissal. .. In my opinion, the correct rule is stated in Corbin, supra, Vol. 5, p. 429, citing the Restatement of the Law of Contracts, para. 341, as follows: There is sufficient authority to justify the statement that damages will be awarded for mental suffering caused by the wanton or reckless breach of contract to render performance of such character that the promisor had reason to know when the contract was made that breach would cause such suffering, for reasons other than pecuniary loss. Carruthers J. quoted Saunders J. in Bohemier v. Storwal Int' Inc. (1982), 1982 CanLII 1764 (ON SC), 40 O.R. (2d) 264 (H.C.): Saunders J. says "There are said to be two grounds for awarding damages for mental distress which, to an extent, overlap." He identifies the second basis as being that which can be done by way of aggravated damages. In saying this he followed Linden J. in Brown v. Waterloo, supra, who at pp. 288-89 [O.R.] of that decision, says: The aim of aggravated damages is to "soothe plaintiff whose feelings have been wounded by the quality of the defendant's misbehaviour". They are "balm for mental distress" which is brought about by the wrongful "character of the defendant's wrongdoing." There must be evidence of damage of this type to the plaintiff. Canadian law seems to have recognized the need for something like aggravated damages in contract law by awarding damages, not only for financial losses, but also for any mental suffering incurred by the plaintiff in appropriate cases. The purpose behind allowing such damages is to compensate for hurt feelings, anxiety and stress caused by certain types of contractual breach, where they are in the contemplation of the parties. Where the conduct of defendant which violates contract is particularly callous, the likelihood of mental suffering would be more foreseeable to him. Linden J. concluded that if the mental suffering of the plaintiff had not been compensable under Hadley v. Baxendale, supra, he would have been inclined to base such an award on aggravated damages. However, he found it unnecessary to do so in view of the recent developments in Canadian law of contract damages for mental suffering Weatherston J.A. at p. 122 [O.R.] of his decision, says: Linden J. would have awarded aggravated damages if he had not allowed the claim for mental distress. But what have said in respect of the award for mental distress is equally applicable to that claim. Whatever name is given to the claim for damages, it arises out of separate decision of the board that was not actionable, and that decision cannot be made compensable by merely tacking it on to compensable claim. If nothing else, this case illustrates how unwieldy the Hadley v. Baxendale analysis had become when mental distress was claimed in wrongful dismissal cases. The reluctance of Ontario courts to instruct juries on the issue was understandable. The majority decision in Vorvis did nothing to invalidate this approach, but it provided simpler alternative by introducing tort law principles. The concept of an "independent actionable wrong" is broad enough to embrace breach of the general duty of care. In Donaghue v. Stevenson, [1932] A.C. 562, Lord Atkins stated: The rule that you are to love your neighbour becomes in law: You must not injure your neighbour, and the lawyer's question: Who is my neighbour? receives restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be persons who are so closely and directly affected by my acts that ought reasonably to have them in contemplation as being so affected when am directing my mind to the acts or omissions which are called in question. In Anns v. Merton London Borough Council, [1977] All E.R. 492 at 498, two stage approach was adopted: the position has now been reached that in order to establish that duty of care arises in particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which duty of care has been held to exist. Rather the question has to be approached in two stages. First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter in which case prima facie duty of care arises. Secondly, if the first question is answered affirmatively it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which breach of it may give rise... The Supreme Court of Canada accepted the Anns approach. In Canadian National Railway Co. v. Norsk Pacific Steamship Co. (1992), 1992 CanLII 105 (SCC), 91 D.L.R. (4th) 289 (S.C.C.) Justice McLaughlin explained that the approach required two questions to be asked "(1) is there duty relationship sufficient to support recovery? and, 2) is the extension desirable from practical point of view, i.e., does it serve useful purposes or, on the other hand, open the flood gates to unlimited liability." In Fletcher v. Manitoba Public Insurance Co., 1990 CanLII 59 (SCC), [1990] S.C.R. 191, Madame Justice Wilson quoted with approval from the judgment of this Court in Nova Mink Ltd. v. Trans-Canada Airlines, 1951 CanLII 325 (NS CA), [1951] D.L.R. 241 where MacDonald, J., stated in part at 254 and 256 as follows: The common law yields the conclusion that there is such duty only where the circumstances of time, place, and person would create in the mind of reasonable man in those circumstances such probability of harm resulting to other persons as to require him to take care to avert that probable result." Many attempts have been made to generalize the circumstances which create legal duty of care. .What is common. .is the idea of relationship between parties attended by foreseeable risk of harm. In Canadian Tort Law, 10th ed. (Toronto: Butterworths 1994) A.M.Linden and L.N.Klar cite C.A. Wright in his "Introduction to Cases on the Law of Torts" as follows: Arising out of the various and ever increasing clashes of activities of persons living in common society there must of necessity be losses, or injuries of many kinds sustained as result of the activities of others. The purpose of the law of torts is to adjust these losses and to afford compensation for injuries sustained by one person as the result of the conduct of another. degree of mental distress is always likely to accompany the termination of employment. That is foreseeable at the time of formation of the contract of employment, and it is remedied by the requirement that notice be given. In the language of Anns, that is one of the considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which breach of it may give rise. It is only when the employer's conduct aggravates the mental distress beyond the degree contemplated by the parties on the formation of the contract, that is, beyond the degree which can be remedied by agreement or reasonable notice, that right to further damages arises. Following the McIntyre analysis in Vorvis, it appears that damages can arise for mental distress on termination when an employer in the breach of the duty of care or in the course of other tortious conduct does something more harmful to the employee than either would have reasonably contemplated, and provided for by way of contractual remedy, when they entered into the employment contract. The test in my view is whether reasonable person would perceive that the employer has terminated the employment contract in manner that caused the dismissed employee more harm than reasonably necessary. If the employer's acts are independently actionable as torts the situation becomes very clear, but with respect, McIntyre J. did not make this requirement. He said: would not like to be taken as saying that aggravated damages could never be awarded in case of wrongful dismissal, particularly where the acts complained of were also independently actionable. (Emphasis added.) wrong would not be independently actionable if the damages were not foreseeable, but in the case of tortious conduct, such as breach of the duty of care, it needs only to be foreseeable when it occurs, and not necessarily as early as the time of the formation of the contract of employment. In Hall v. Herbert (1993), 1993 CanLII 141 (SCC), 101 D.L.R. (4th) 129 at p. 156 Cory J. reviewed general tort principles as they have evolved in the jurisprudence of the Supreme Court of Canada and stated the Court's two-stage test for considering foreseeability, proximity and duty of care: It is: (i) is there sufficiently close relationship between the parties so that, in the reasonable contemplation of party, carelessness on its part might cause damage to another person; if so (ii) are there any considerations which should negate or limit (a) the scope of the duty and (b) the class of persons to whom it is owed or (c) the damages to which breach of it may give rise. In the application of that rule to wrongful dismissal cases in which an independently actionable act has occurred, the damages caused by one person in the employment relationship to another would be limited to those in excess of the damages in the contemplation of the parties at the formation of the contract and taken into account by its terms. Cases since Vorvis in which damages have been awarded for mental distress, in addition to damages for inadequate notice alone, appear to follow this general approach. In Dixon v. B.C.Transit (1995), 13 C.C.E.L. (2d) 272 (B.C.S.C.) senior executive, enticed to B.C.Transit from secure job at senior level, was dismissed after seven and half months amid allegations that the dismissal was for cause, so the employer could evade paying year's salary of $150,000 required by the contract for dismissal without cause. The court, following McIntyre J. in Vorvis, found the tort of deceit with respect to the false allegations. Dixon had been persuaded to give up secure senior management position, and it was foreseeable that early termination, even with notice, would cause him severe mental distress. He was awarded aggravated damages of $50,000 for malicious conduct which caused humiliation and frustration, and punitive damages of $75,000. In Russell v. Nova Scotia Power Incorporated (1996), 1996 CanLII 5438 (NS SC), 150 N.S.R. (2d) 271 (S.C.) systems officer with good work record was dismissed without notice on false allegations of incompetence and insubordination. His dismissal was announced by an E-mail message to supervisors and their staffs over the company's computer network. The trial judge awarded twelve months' salary in lieu of notice and $40,000 for mental distress, dismissing claim for defamation which he held to be included in the mental distress award. In Backman v. Hyundai (1990), 1990 CanLII 4087 (NS SC), 100 N.S.R. (2d) 24 (S.C.) Davison J. considered both approaches in Vorvis in dismissing claims for mental distress and punitive damages. Regardless of which test use, conclude the plaintiff is not entitled to aggravated damages. None of the actions of the defendant would give rise to an independent action and any loss is properly compensated by the damages awarded for failure to give notice. Furthermore, there was no circumstances in this case which would have rendered mental suffering foreseeable at the time the employment contract was made. Although the plaintiff and his former wife would have the court isolate the cause of mental suffering to the dismissal, am not at all convinced that major factor in the stress suffered by Backman did not result directly from the criminal charges and the financial circumstances in which he found himself as result of not being in position to find other employment as quickly as if the cloud of suspicion was not hovering over his head. The Jury Question In Nova Scotia the general rule under s. 34 of the Judicature Act R.S.N.S. 1989, c. 240 is that in cases involving issues either of law or equity parties are entitled to demand jury trial by notice, which judge may overturn on application. In Ontario the general rule under s. 59 of the Judicature Act R.S.O. 1980, c. 223 is that all issues of fact shall be tried and all damagers assessed by the judge without the intervention of jury. Except in matters of equity jury notice may be given by party, but the judge has discretion to dispense with the jury of his or her own motion. In both jurisdictions judge also has discretion independent of the jury notice to direct that issues of fact be tried or damages assessed by jury. The appellant has cited line cases from Ontario which hold that the question of mental distress in wrongful dismissal cases is too difficult to leave with jury. These cases begin with Fulton v. Town of For Erie (1982), 1982 CanLII 2121 (ON SC), 40 O.R. (2d) 235 (Ont. H.C.J.) and include MacDougall v,. Midland Doherty Limited (1984), C.C.E.L. 28 (Ont. H.C.J.); Stadler v. National Bank of Canada (1984), 23 A.C.W.S. (2d) 483 (Ont. H.C.J.); Saraga v. Wellington County Board of Education (1985), 1995 CanLII 7280 (ON SC), 11 C.C.E.L. (2d) 317 (Ont.Ct. Gen. Div.). The appellant submits: It is submitted that, having regard to the complexity of the issue and the inconsistent approach of the Courts even subsequent to Vorvis, the Fulton Line of Cases holding that trial by jury is inappropriate with regard to mental distress is still valid. Given the two approaches in Vorvis, the law as to damages for mental distress in wrongful dismissal cases is not free of difficulty, but in my view it is not so complex that it cannot be explained to and understood by jury. It was not an improper exercise of the trial judge's discretion to leave the matter with the jury and would dismiss this ground of appeal. The Jury Charge Foreseeability The second ground of appeal is whether the trial judge erred in mischarging the Jury on the question of foreseeability. The appellant does not take issue with any other aspect of the contents of the jury charge. In the course of his charge to the jury the trial judge said: can tell you, as matter of law, that because of the nature of the employment in this case, it was foreseeable and must have been in the contemplation or mind of the parties in this case that mental distress could result from dismissal without notice. It is not only matter of law but matter of common sense that in this case or any other mental distress could result from dismissal, with or without notice; it could hardly be otherwise as long as human beings have feelings. The jury's concern was not whether mental distress occurred, but how much there was of it. Was it present in the normal degree that parties contemplate when they enter an employment contract, or were there elements that increased it beyond what could be compensated for by ordinary notice. To read the impugned sentence in context it is necessary to repeat verbatim several of the paragraphs that precede and follow it. The judge deliberately broke his charge into two portions, general principles on one afternoon and more specific concerns on the following morning. In the second portion of his charge he discussed the difference between dismissal for cause and dismissal upon notice, explaining that Healthvision was not relying on any cause to justify the termination of Colleen Killorn without notice. He dealt with mitigation, then moved on: will now turn to question number two. Question number two is, Has the plaintiff, Colleen Killorn, established that she suffered mental distress as result of conduct arising out of the dismissal by the defendant, HealthVision, other than the dismissal itself, which would warrant or require the awarding of additional damages to the plaintiff for mental distress? Here you're required to give an answer which would be "yes" or "no" and if it is yes the you're asked to briefly write paragraph briefly describing conduct on which you base your decision. Now will explain to you the law on mental distress. In certain cases Court can order or award what are commonly known as aggravated damages. These are damages in addition to the pay or income that would be payable to the plaintiff, Colleen Killorn, during any reasonable period of notice which you decide in question number one. This is in addition to that. In this case the plaintiff, Colleen Killorn, is asking you to award her a sum of money to compensate her for the mental distress and the effect on her and her family life which she claims she suffered as a result of the conduct of the defendant, HealthVision Corporation, in the manner in which she was dismissed. should point out that aggravated damages for mental distress are not routinely awarded in cases of unlawful termination of employment. This is because there is usually some element of mental distress when person loses their job. However, if the conduct of the employer, in this case, HealthVision, this is important, other than the mere fact of the dismissal itself, that is, if the dismissal is carried out in an unjustified, callous, sudden and inconsiderate manner, such conduct may give rise to damages for mental distress. The conduct complained of must be surrounding the manner of the dismissal not merely the fact that dismissal without notice occurred. can tell you, as matter of law, that because of the nature of the employment in this case, it was foreseeable and must have been in the contemplation or mind of the parties in this case that mental distress could result from dismissal without notice. In this case, you should consider the manner in which the dismissal was carried out and not the actions of Mr. Wilson, which occurred at the seminars prior to the dismissal. Colleen Killorn relies on the fact she was allegedly dismissed because HealthVision was not satisfied with number of aspects of her performance, but she was never told so by way of verbal or written notice. If that was HealthVision's intention, they would normally have been required to advise her of this fact so that she could have reasonable opportunity to address any problems or concerns, as mentioned previously. Colleen Killorn also relies on the fact that the company handbook set out procedure for termination and that it was not followed. She also relies on the fact that all of her records, including her file notes, were all taken from her and not provided to her for review. She was not given notice sorry, she was not given reason for her dismissal. She relies on this fact as well. It is Colleen Killorn\'s contention that this amounts to callous, offensive, sudden, humiliating and inconsiderate conduct which caused her mental distress in addition to the dismissal itself. Colleen Killorn and others have testified how this affected her. The burden or onus of proving on the preponderance of the evidence that this alleged conduct of Healthvision was unjustified and that this conduct caused her mental distress is or rests upon Colleen Killorn. In addition to her own testimony she relies on the testimony of Dr. Davey, her husband and friend, who you heard testify, as to her demeanour and her behaviour around this time. She relies on this evidence to establish and prove mental distress. Colleen Killorn, therefore, has to prove three things with regard to question number two. The first that she did, in fact, suffer mental distress; second, that the mental distress which she alleges she suffered was caused by HealthVision's conduct in the manner in which she was dismissed; and third, that the conduct complained of warrants or justifies the awarding of damages for mental distress. The trial judge was obviously at pains to create clear distinction in the minds of the jury between the mental distress that arises from dismissal without notice and the mental distress which was caused by the employer's conduct in the manner in which she was dismissed. That is essentially the Vorvis distinction between the mental distress contemplated by the parties at the formation of the contract of employment, which is compensated for by adequate notice, and the additional mental distress that occurs when the employer's conduct is independently actionable or so unnecessarily harsh and callous that mental distress unforeseeable and unprovided for at the formation of the contract becomes factor with foreseeable results. In its proper context the trial judge's reference to the foreseeability of mental distress as matter of law was related to mental distress resulting from dismissal without notice, and not the additional mental distress which the jury had to find to justify an award for mental distress as aggravated damages. In my view the impugned sentence does not amount to misdirection which caused the jury to proceed upon an improper principle. would dismiss the second ground of appeal. The Jury's Assessment of the Evidence The appellant submits that the jury erred in assessing the evidence, and raises the following questions: Whether the answers of the jury were generally unreasonable, unjust, perverse and contrary to law and evidence. Whether the answers of the jury were not such as could have been given by reasonable persons in the circumstances. Whether the jury made palpable and overriding error in assessing the evidence of the conduct of the Defendant as there was insufficient material evidence to support the answers of the jury; Whether the jury erred in law in finding that the "conduct" of the Defendant caused or contributed to the mental distress complained of by the Plaintiff. While the jury's focus was properly on the termination itself, its effects can only be understood in the context of the events that began in February, 1993, when it became clear that Healthvision was to be the successful contender for the P.E.I. contract. Ms. Killorn anticipated, not unreasonably, that she was entitled to the $90,000 commission. She understandably saw the proposed new compensation scheme, which she received in March, as move to thwart her expectations. When the employment contract was entered into it was within the contemplation of both parties that any changes in terms would be negotiable. The sales compensation plan provides: On the anniversary date of April each year, terms of the plan may be renegotiated by either HCS or the account manager. When Ms. Killorn was presented with revised plan without opportunity for negotiation, it was foreseeable by the employer that she would suffer mental distress. It was foreseeable as well that her distress and frustration would be exacerbated when she was denied even an explanation, and the company effectively ceased to communicate with her. It was during this period that her doctor diagnosed depression and placed her on medication. The pattern continued at the sales conference in British Columbia when Mr. Wilson was agitated with her and refused to discuss her concerns, leaving her so upset she sought stress leave. As well, the letter to her customers without her knowledge would be foreseeably upsetting. The company continued its lack of openness and honesty with Ms. Killorn by pretending that Lucy McKiernan was visiting her for an audit instead of to dismiss her. In my view the letter of dismissal cannot be isolated from the notice of revised sales compensation plan nor the intervening events; they are all part of the same pattern or transaction which culminated in dismissal with inadequate notice. It was foreseeable that Ms. Killorn might be diagnosed as clinically depressed in May because of the way the company began treating her in March. Against that background the company must have been aware that to fire Ms. Killorn soon after she returned from stress leave would cause her extraordinary mental distress. The jury was properly instructed. There was evidence before it. In my view the answers of the Jury were not unreasonable, unjust, perverse, or contrary to law and evidence. They could have been given by reasonable persons in the circumstances. In my view the jury made no palpable and overriding error, there was evidence to support its answers, and there was no "error in law" on the part of the jury in finding the conduct of the appellant caused or contributed to the mental distress complained of by the respondent. The conduct of the company, in fact, was so insensitive that it seemed deliberately calculated to increase Ms. Killorn's mental distress. The jury was not asked to identify tort committed by the appellant, but in my view when party's negligent or deliberate acts cause harm to another that is both foreseeable and avoidable, any requirement for an independent actionable wrong referred to in McIntyre J.'s analysis in Vorvis is satisfied. The appellant's conduct toward the respondent in this case caused degree of mental distress on termination well beyond what would have been anticipated by the parties when they entered into the contract, that is, well beyond what adequate notice could be expected to remedy. It was the conduct of the employer, the protracted and painful termination process that was not predictable, not the mental stress. In my view the jury was entitled to find, and did that the long freezing-out process which ended with the letter of dismissal was so negligently hurtful to Ms. Killorn as to be an independently actionable wrong. Applying the approach of the Vorvis minority, it was foreseeable that if Ms. Killorn was dismissed in such manner, she would suffer mentally and emotionally. In Vorvis the plaintiff was not entitled to damages for mental distress because there was nothing in the dismissal itself which was more painful or distressing than the parties would have contemplated at the formation of the contract, and no independently actionable wrong. The conduct of the supervisor of which Vorvis complained preceded the dismissal and was distinct from it, not enmeshed with it. The nexus was not established. What distinguishes the present appeal from the facts in Vorvis, and many of the other wrongful dismissal cases in which claims for mental suffering were not established, is that Ms. Killorn's dismissal was process extended over several months and not single, clear-cut and decisive act. There was evidence from which the jury could have concluded that the nexus linking the events was the company's concern with ensuring that Ms. Killorn did not receive $90,000 commission from the P.E.I. contract. The process that ended in her dismissal became visible to her in March, 1993, when she was advised that her sales compensation plan had been unilaterally altered by the company. Up to the time she received the notice of the intended change in her contract it was not unreasonable for her to have anticipated receiving the commission. She had been told nothing to the contrary. The company's deceitful conduct toward her had, however, actually begun much earlier when, without her knowledge, the Prince Edward Island contract was taken from her and added to Mr. Wlson's responsibilities. It was the altered sales compensation plan that first put Ms. Killorn on notice that her status was changing, or had changed. That was the objective act which began the termination process, and its unsevered nexus with the actual notice of dismissal was clear from the evidence. It threw her legal relationship with her employer into doubt. She had no way of knowing how the company viewed her refusal to accept it, nor whether the company's refusal to negotiate or to inform her affected its validity. Was she governed by the old contract, the new contract, or none at all? The company still continued to recognize her as an employee, but refused to communicate with her about her status. She was ostracized by her superiors. The actual notice of dismissal on Ms. Killorn's return from stress leave in July was almost an anti-climax: Ms. Killorn had been broken by the process leading up to it. After more than three months in limbo of uncertainty she was in state of clinical depression, medicated and under doctor's care. This was foreseeable. It was equally foreseeable that if the termination process had not been protracted from March until July, Ms. McKiernan could have delivered notice of dismissal to healthy individual without entitlement to damages for mental suffering. It is to be noted that the medical evidence relates to the period of the extended termination process, not to the period following the actual dismissal when Ms. Killorn's symptoms might be said to be more foreseeable result of dismissal within contemplated norms. It is her own evidence and that of her husband that shows her depression was continuing at her trial. The jury was entitled to characterize the company's conduct toward Ms. Killorn in the circumstances of her drawn-out dismissal as high-handed and callous; that was rational conclusion from the evidence. would dismiss the grounds of appeal based on allegations the jury erred in finding that Ms. Killorn was entitled to damages for mental distress. Once such finding is made the issue becomes one of quantification of damages. Damages The appellant asks Whether the jury's assessment of damages for mental distress was inordinately and disproportionately high. The appellant reviewed thirteen Nova Scotia wrongful dismissal cases since 1980 and found that eight of them awarded nothing for mental distress because the standard for proving entitlement to damages for mental distress had not been met. Of the five cases in which damages were awarded, only two were for more than token amount of less than $1,000. In McOnie v. River Pub Limited and Rohfie (1987), 79 N.S.R. (2d) 379(S.C.) the plaintiff was awarded $6,500 for mental distress. He had left seven-year job and had been working for the defendants less than year. He testified he was humiliated and devastated, had trouble adjusting, gained weight and became reclusive and depressed. In Russell, discussed above, the award was $40,000. In the present case the award is proportionate to the loss of the P.E.I. commission, which was anticipated but not yet earned or payable at the time of termination. The award was not to compensate for lost commissions but for mental distress. Lost commissions are an aid in quantifying mental distress in cases such as the present one, but one-to-one correlation cannot be expected. The applicable principle consistently followed by this court was restated by McIntyre J. writing for the Supreme Court of Canada in Woelk v. Halvorson, (1980] 1980 CanLII 17 (SCC), S.C.R. 430 at pp. 435-6: It is well settled that Court of Appeal should not alter damage award made at trial merely because, on its view of the evidence, it would have come to different conclusion. It is only where Court of Appeal comes to the conclusion that there was no evidence upon which trial judge could have reached this conclusion, or where he proceeded upon mistaken or wrong principle, or where the result reached at the trial was wholly erroneous, that Court of Appeal is entitled to intervene. The well-known passage from the judgment of Viscount Simon in Nance v. British Columbia Electric Railway, 1951 CanLII 374 (UK JCPC), [1951] A.C.601 at p. 613 approved and applied in this court in Andrews v. Grand Toy Alberta Ltd. 1978 CanLII (SCC), [1978] S.C.R. 229, provides ample authority for this proposition. He said: Whether the assessment of damages be by judge or jury, the appellate court is not justified in substituting figure of its own for that awarded below simply because it would have awarded different figure if it had tried the case at first instance. Even if the tribunal of first instance was judge sitting alone, then, before the appellate court can properly intervene, it must be satisfied either that the judge, in assessing the damages, applied wrong principle of law (as by taking into account some irrelevant factor or leaving out of account some relevant one); or, short of this, that the amount awarded is either so inordinately low or so inordinately high that it must be wholly erroneous estimate of the damage. would dismiss the appeal from the jury's assessment of damages, and dismiss the appeal on all grounds with costs to the respondent which would fix at $4,000, or 40 per cent of the costs at trial, rounded, plus disbursements. The respondent brought cross-appeal which was abandoned prior to the hearing. would allow costs on the cross appeal of $1,000 to the appellant to be deducted from the costs payable to the respondent, leaving net amount of $3,000 plus disbursements. Freeman, J.A. HALLETT, J.A.: have read Justice Freeman's decision and, with respect, cannot agree that the appeal should be dismissed. On the facts of this case the question of aggravated damages for mental distress ought not to have been left to the jury or, alternatively, if properly left to the jury, ought not to have been left in the manner it was. Secondly, the award of $60,000 for mental distress is inordinantly high and should be set aside. Facts In 1988 the appellant began sales efforts to sell the Prince Edward Island Health Services Commission (the Commission), an integrated health information system. The sale had potential value of $3M. The respondent, Ms. Killorn, was hired on November 9th, 1989. The letter from the president of the appellant company stated in part: "This letter confirms our offer of employment to you as an Account Manager based in Halifax. The compensation for this position will be based on the attached compensation plan: pay periods are the fifteenth and the last day of each month...... We understand you will be available to commence work with the Company on November 9, 1989. We look forward to your acceptance of this offer." The compensation plan, referred to in the letter, which she accepted, provided for the following: "1. Compensation Compensation shall be comprised of base salary of $40,000. per annum plus commission. The commission will be calculated as follows: 5% of application software license revenue 5% of gross hardware margin (new accounts) 2% of gross hardware margin (existing accounts) Payment: The base salary will be paid semi-monthly. Commission will be deemed earned when the customer has paid HCS. 3. Sales Territory: HCS reserves the right to alter the sales territory of the account manager. Initially, it will consist of the four Atlantic provinces. 4. Term of Plan: This plan is deemed to take effect on November 9, 1989 and continue until March 31, 1990. Thereafter it will automatically renew on an annual basis. On the anniversary date of April each year, terms of the plan may be renegotiated by either HCS or the account manager. 5. Termination of Employment: Should the account manager leave the employment of HCS for whatever reason, the commissions payable will be limited to those earned within 90 days after the termination. HCS and the Account Manager hereby agree to the terms and conditions of this compensation plan: HCS Health Care Systems, Inc. Account Manager" {emphasis added} In summary, her annual salary was $40,000; she would be entitled to commission of 5% of application software license revenue and 5% of the gross hardware margin on new accounts. The potential sale to the Commission involved both the hardware and software components; her commission, if earned, would have been in the $90,000 range. The evidence showed that Ms. Killorn had minimal involvement in developing the sale to the Commission. Mr. Brand testified that no sales representative has an exclusive territory. This is consistent with the terms of employment as set out in the 1989 contract. The development of an information system for customer involves great deal of technical expertise which function is beyond the capability of sales representatives. This work is done at the head office of the appellant. However, the potential sale was in Ms. Killorn's territory. Although the contract is not clear, one could infer that she would be entitled to commissions on all sales in her territory pursuant to the terms of the 1989 contract. However, the commissions would not be earned until the customer paid. On March 16th, 1993, the appellant forwarded revised compensation plan for her signature. She did not sign it prior to her dismissal. Under that proposed contract she would be entitled to commissions on sales in her territory to assigned customers. It is not at all clear that the 1989 contract would have applied at the date of her dismissal on July 12th, 1993, as its terms may have been terminated on the anniversary date of April 1st. However, the trial seemed to proceed on the basis that the original employment contract was still in force but again that is not at all clear as the question, although touched on by the Court and counsel during the trial, was not resolved before the jurors were asked to answer the questions put to the them. In discussions between counsel and the trial judge, subsequent to the jury's verdict, it becomes clear that the trial judge must have taken the view, and his instructions to the jury would be consistent with this conclusion, that the contract between Ms. Killorn and the appellant at the time of her dismissal was one of indefinite duration and that the terms of that contract would be as contained in the 1989 contract. The jury was never told by the trial judge what contract was in effect. Whether or not the trial judge was correct in his assessment as to the contractual situation between the parties is not an issue raised on the appeal. What is relevant is the fact that the trial judge gave no instruction to the jury as to what the contractual terms were that bound the parties at the time of dismissal so as to enable the jury to properly assess the conduct of the appellant which is relevant to the issue of aggravated damages for mental distress. History of Relevant Events Mr. Brand, the appellant's vice-president of finance and administration, testified that Ms. Killorn fell short of her sales goals in both 1990 and 1991. Ms. Killorn acknowledged under cross-examination that she did not reach her planned sales goals in 1990, 1991 or 1992. Michelle LaVigne, friend of Ms. Killorn, testified that, as early as 1992, Ms. Killorn began showing signs of stress. Apparently Ms. Killorn found dealing with Mr. David Wilson, the appellant's vice-president of marketing and sales for Canada, stressful. On February 17th, 1993, Ms. Killorn consulted her doctor. Ms. LaVigne testified that Ms. Killorn was having problem with her weight. Dr. Davey's notes indicate that she had thyroid problem. There is nothing in his notes with respect to that visit that would indicate she consulted him with respect to stress. On February 26th, 1993, the Committee that had been appointed by the Commission to evaluate the proposals that had been received from different suppliers of information systems recommended to the Commission that negotiations proceed with the appellant and that if terms could not be reached the Committee recommended that the Commission negotiate with the second best supplier, Hewlett Packard. On March 16th, 1993, Mr. Brand and Mr. Wilson wrote Ms. Killorn forwarding the new compensation package. The letter and the package are reproduced as follows: "Dear Colleen: The Corporation has revised its Sales Compensation Plan for Sales Representatives and we are very pleased to make you new offer of employment based on revised and improved commission and bonus structure. This offer is effective April 1, 1993 and supersedes all previous agreements in place both written and oral. Details of the offer are outlined on the attached Sales Compensation Agreement. Your benefits package and vacation entitlement remain unchanged. Any profit share distribution will be reduced by the value of any and all commissions and bonuses paid to you. If you have signed the Corporation's revised Confidentiality and Non-competition Agreement, the terms apply equally to this new agreement. If you have not signed the previously-mentioned agreement, then your signature is required on this document as well as part of your acceptance of these new terms of employment. Please review the attached document(s) and, if you are in agreement, sign and return to Lucie McKiernan. Yours truly, Bob Brand David Wilson Vice President Vice President Finance and Administration Marketing and Sales" The sales compensation agreement attached to the letter was in the following form: "Health VISION CORPORATION SALES REPRESENTATIVE SALES COMPENSATION AGREEMENT SALES REPRESENTATIVE: COLLEEN KILLORN BASE SALARY: $40,000.00 per annum, paid semi-monthly. COMMISSION: 4% on licences from assigned customers will be given on Corporation software licenses, net margin on third party software and net margin on hardware sales. Commission will be accrued when revenue is recognized under the Corporation's revenue recognition policy; however, commission will only become payable, on pro-rata basis, as and when the Corporation receives payment from the client. Refundable draws against commission will be given at the sole discretion of Finance based on accrued commissions and on demonstrated client prospects. CASH BONUS: On or about the first of each year, annual and quarterly revenue targets will be established for each Sales Representative. On year to date basis as at March 31, June 30, September 30, and December 31, if the Sales Representative has reached or exceeded the target for that date, then cash bonus of $2,000.00 will be paid. If, at December 31, the Sales Representative has reached or exceeded the annual target, further cash bonus of $10,000.00 will be paid. If, at December 31, the Sales Representative has reached or exceeded the annual target by 125% further cash bonus of $10,000.00 will be paid. If, at December 31, the Sales Representative has reached or exceeded the annual target by 150% further cash bonus of $15,000.00 will be paid. Bonus is paid in addition to the base salary and commission. TERRITORY: The Corporation reserves the right to alter the sales territory of the Sales Representative from time to time. AGREEMENT: This Agreement is deemed to take effect on April 1, 1993 and continue for one year. Thereafter, it will automatically renew on an annual basis. On the anniversary date of each year, terms of the plan my be renegotiated by either the Corporation or the Sales Representative. TERMINATION OF EMPLOYMENT: Should the Sales Representative leave the employment of the Corporation for whatever reason, the commissions payable will be limited to those orders received prior to termination and deemed earned within 30 days after the date of termination." {Emphasis added} There is no evidence as to what is meant by the term "assigned" customers; this is different from the original agreement. There is no evidence as to what the appellant meant by the concept that commissions will be payable on pro rata basis. would infer it meant that commissions would be shared with others under the new arrangement but there is no criteria as to how the commissions would be shared. Mr. Brand testified that on balance the new compensation agreement was an improvement over the original agreement because, although commissions were reduced from 5% to 4%, nevertheless, the sales representatives would be getting 4% on sales to all customers new or existing. Under the 1989 contract form they were only entitled to 2% on sales to existing customers. Furthermore, there was no provision for bonus incentives under the 1989 contract. Mr. Brand testified that the compensation package sent to Ms. Killorn was the same as that sent to the other five Canadian sales representatives. Ms. Killorn did not sign this agreement; the others did. In the months that followed she sought clarification from Mr. Wilson respecting the terms of the new compensation plan. She testified that the day she received the new compensation package she telephoned Mr. Wlson. She testified that Mr. Wilson told her that the P.E.I. contract was his target for bonus purposes and that she did not have the experience to close the P.E.I. deal. He also told her that the commission on the P.E.I. contract was to be split. She testified that she felt crushed, betrayed and ripped off. Ms. Killorn testified that in March, 1993, after her conversation with Mr. Wilson, she sought medical advice. However, it would appear from Dr. Davey's notes that she first contacted him with respect to depression on May 14th. Ms. Killorn may have been mistaken in the date. Ms. Killorn wrote Mr. Wilson on April 2nd, 1993, as follows: "As per my request to you earlier this week, there are few points in the new sales compensation agreement that would like clarified. 1. What is my defined territory in this new agreement? 2. What are my annual and quarterly targets for bonus purposes? 3. Are the targets established on written or paid business for bonus purposes? 4. When does the new compensation plan kick in, example: If an order was received prior to April 2, 1993 and only 1/2 of the contract has been paid by the customer, in which the sales person received 5% commission in their original employment agreement, which commission structure will apply for the second 1/2 of the payment from the customer? 5. What compensation will be given in the event that my territory is altered, (reduced)? 6. What percentage of the P.E.I. contract will be used toward my projected targets? 7. What percentage of commission will be paid to me on the P.E.I. contract? What percentage will be paid to others on this contract? It is my understanding that the contract is forthcoming, that the announcement has been made publicly that we are the successful vendor and that they (P.E.I.) are now putting together management team to negotiate the contract with us. Will be taking part in the contract negotiations? ask that written response be sent to me." There was an indication Ms. Killorn had consulted lawyer in this period. There was no response from Mr. Wilson. Subsequent to writing this memo she met with Mr. Wilson at company meeting in Toronto and Mr. Wilson told her that the P.E.I. commission would be split. On May 2nd, 1993, she faxed to Mr. Wilson the same request as forwarded on April 2nd, 1993. The only response from Mr. Wilson was the following memo to Ms. Killorn dated May 11th, 1993: "The following are your sales goals for FY '93. You should note that revenue recognition is as follows: New HCS Software Module Sales 80% of selling price counts toward your goal, Software Installs 20% of selling price once the site goes "live", Hardware 100% counted on the ship date. Yours goals are: HCS Software: 1,000K HCS Hardware: 700K Plus P.E.I.deal." It would appear from review of this memo that Mr. Wilson only addressed questions and 6, set out in her written memo to him. In particular, there was no response from Mr. Wilson with respect to the questions raised in Item (her inquiry with respect to the commission on the P.E.I. contract). What share would be hers is unknown but one might infer that it was still assigned to her as it was part of her target. However, Mr. Brand's evidence would indicate that the P.E.I. contract had been assigned to Mr. Wlson in 1992. Ms. Killorn testified that this fact had not been communicated to her. On May 14, 1993, Ms. Killorn consulted her family doctor, Dr. Davey. He diagnosed depression. He prescribed an anti-depressant drug, Zoloft; his notes show that he was to recheck her in two weeks. Ms. Killorn testified that her income was critical to her family's well-being as her husband's new business was not doing well. Ms. Killorn had 15 year old daughter. On May 28th, 1993, Dr. Davey again saw Ms. Killorn. His notes indicate that she was still suffering from depression; he continued the Zoloft and he noted that he would recheck in further two weeks. On June 7th, 1993, Ms. Killorn attended sales retreat in Victoria, British Columbia. Ms. Killorn testified that she again sought clarification from Mr. Wilson on the commission structure. She testified he became agitated with her and would not address her concerns. She also testified that he interrupted and criticized presentation of hers to the sales group and that she found this humiliating and very stressful. She left the meeting. Mr. Brand was at that meeting; he testified that the sales representatives' presentations are constantly interrupted by management as they must know, for planning purposes, how close sales are to closing. Mr. Wilson was present during the trial but did not testify. On June 7th Dr. Davey received long distance call from either Ms. Killorn or her husband or both and on the same date he wrote "To Whom it May Concern" letter to the appellant as follows: "RE: Colleen Killorn Mrs. Killorn is under my care and will require time off work due to medical reasons. expect period of between four and eight weeks off work and then she should return to her normal duties. If you require further information please do not hesitate to contact me." On June 7th Ms. Killorn told the appellants, by way of voice message left for Mr. Wilson, that they were not to contact her and that she was off for minimum of six weeks. She immediately left Vancouver and returned home. Mr. Brand testified that Ms. Killorn left the company in an impossible situation. The appellant's technical staff had slated demonstration in Nova Scotia; they had no information as to who to contact as Ms. Killorn did not leave any information. Ms. Killorn simply told the appellant's management that they were not to contact her. The appellant wrote to customers in Ms. Killorn's territory that she was off on sick leave and that Mr. Dewar would look after the accounts. Mr. Brand testified that in mid-June 1993 the appellant decided to terminate Ms. Killorn after concluding that she was not able to handle the job considering, in particular, her poor sales results. This was change of opinion as to her ability from that which existed on March 16th, 1993, when Mr. Brand forwarded the new compensation package and stated how pleased he was to do so. The appellant did not wish to terminate her while she was on sick leave or to advise her of termination other than in personal meeting. The decision was made that once Ms. Killorn returned from sick leave representative of the appellant from the Vancouver office would travel to Halifax and advise her of the dismissal and at the same time do physical audit of the Halifax office. On July 6th, 1993, Ms. Killorn again saw Dr. Davey (she had not kept an appointment for June 16th). Dr. Davey's file notes state that she was still depressed but feeling better because she had been off work for three weeks. The Zoloft was still causing headaches. The plan was to discontinue the Zoloft and she intended to return to work. On July 9th, 1993, Ms. Killorn returned to work and so advised the appellant. On July 12th Ms. McKiernan, the Director of Administration of the appellant's Vancouver office, arrived in Halifax. Ms. Killorn had been told that the purpose of the visit was to do the physical audit. When she met with Ms. Killorn, Ms. McKiernan delivered letter from the president terminating her employment. An offer of severance pay in the amount of $14,000 was made. This offer was rejected. The termination letter stated that all outstanding commissions had been paid and final cheque and details were enclosed. On July 13th, 1993, Mr. Wayne Hooper, the Chairperson of the Committee, appointed by the Commission, to look into the merits of the Commission acquiring an information system wrote Mr. Wilson as follows: "This is to confirm our intent to finalize ongoing negotiations with the objective of purchasing the hardware and software as proposed for Phase in the HealthVISION Corporation's RFP response dated January 9, 1992 at total cost of approximately $2,777,281.00*. This purchase is subject to the approval of the final contract by the PEI Government. Yours truly, Wayne Hooper CHAIRPERSON IHIS Joint Management Team WH/jf This price includes all hardware and software as outlined in the latest revision of the proposal. These amounts may change after we have finalized the hardware configurations." In late November 1993, after extensive negotiations, the Commission signed the contract to purchase the system from the appellant. Justice Freeman has reviewed the evidence of Ms. Killorn, her husband and her friend, Michelle LaVigne, with respect to the mental distress of Ms. Killorn in the spring of 1993 and subsequent to her dismissal. In summary her husband testified that after she was dismissed she became even more depressed. Ms. Killorn testified that she was still on medication when the action was tried; there was no medical evidence to confirm this. Mr. Wayne Hooper testified that there was not lot of contact with Ms. Killorn as the Committee was basically dealing with Dave Wilson from Vancouver. He testified that the Committee had hired consultants and had asked that the potential suppliers were to deal with the Committee's consultant because of the complexity of the deal. The Committee's consultants dealt with the appellant's head office. Mr. Hooper testified that he could not recall being at any meetings or having dealings with Ms. Killorn after June of 1992. Mr. Hooper testified that in December of 1992 the Committee had decided that another supplier was their preferred supplier but that in January of 1993 they changed their mind and the Committee advised the appellant that they were the preferred supplier. He testified that hundreds and hundreds of hours were spent negotiating the terms of the contract following their decision that the appellant would be the preferred supplier and these negotiations were primarily with Dave Wilson. He testified that as of July 12th, 1993, (the date Ms. Killorn was terminated) there was no commitment to sign contract with the appellant. Disposition re: First Ground of Appeal In my opinion, the issue of aggravated damages for mental distress ought not to have been left to the jury. In Vorvis v. Insurance Corp. of British Columbia, 1989 CanLII 93 (SCC), [1989] S.C.R. 1085 McIntyre J., writing for the majority, reviewed the long established law as enunciated in Addis v. Gramophone Co., [1909] A.C. 488 and Peso Silver Mines Ltd. (N.P.L.) v. Cropper, 1966 CanLII 75 (SCC), [1966] S.C.R. 673, aff’g (1965), 1965 CanLII 540 (BC CA), 56 D,L.R. (2d) 117. Those cases held that damages in wrongful dismissal cases are limited to the earnings lost during the period of notice to which the employee is entitled and cannot include damages for the manner of dismissal. McIntyre, J. then noted that the case law subsequent to the Supreme Court of Canada decision in Peso Silver Mines, had been inconsistent. After considering number of those cases, he concluded at p. 1103: "(21) From the foregoing authorities, would conclude that while aggravated damages may be awarded in actions for breach of contract in appropriate cases, this is not case where they should be given. The rule long established in the Addis and Peso Silver Mines cases has generally been applied to deny such damages, and the employer/employee relationship (in the absence of collective agreements which involve consideration of the modern labour law régime) has always been one where either party could terminate the contract of employment by due notice, and therefore the only damage could arise would result from failure to give such notice. (22) would not wish to be taken as saying that aggravated damages could never be awarded in case of wrongful dismissal, particularly where the acts complained of were also independently actionable, factor not present here. As noted by Hinkson J.A. in the Court of Appeal, at p. 46: It was not suggested by the plaintiff that Reid's actions in the months prior to his termination constituted breach of contract. Upon the basis of the reasoning in the Brown case, Reid's conduct was not separate head of damages in the claim for breach of contract. His reference to the Brown case was to the words of Weatherston J.A. in Brown v. Waterloo Regional Board of Commissioners of Police, supra, p. 736, speaking for the Court, he said: If course of conduct by one party causes loss or injury to another, but is not actionable, that course of conduct may not be separate head of damages in claim in respect of an actionable wrong. Damages, to be recoverable, must flow from an actionable wrong. It is not sufficient that course of conduct, not in itself actionable, be somehow related to an actionable course of conduct. (23) Furthermore, while the conduct complained of, that of Reid, was offensive and unjustified, any injury it may have caused the appellant cannot be said to have arisen out of the dismissal itself. The conduct complained of preceded the wrongful dismissal and therefore cannot be said to have aggravated the damage incurred as result of the dismissal. Accordingly, would refuse any claim for aggravated damages in respect of the wrongful dismissal." The essence of his judgment is that, as general rule of longstanding, the only damages that can be awarded in wrongful dismissal suit are those relating to failure to give notice. McIntyre J., by his comments in paragraph 22, did leave the door open crack whereby the scope of claim for damages in wrongful dismissal suit might include claim for damages for mental distress but the only basis for such an extension that was identified by McIntyre J. was if there existed an independent actionable act to found such claim and that such an act is separate and apart from the acts giving rise to the claim for breach of the contract of employment. The inconsiderate conduct of Mr. Wlson towards Ms. Killorn, and the conduct of the appellant in terminating her without warning or reasons, does not give rise to an independent actionable wrong such as found in certain cases where the employer's conduct was defamatory of the employee. The alleged suddenness and callousness of the termination was the evidence relied upon at trial as founding the claim for damages for mental distress. The evidence was not significantly different from that in the Vorvis case. In Vorvis, both the majority and the minority judgments concluded the evidence did not warrant an award of damages for mental distress. The trial judge ought to have instructed himself in accordance with the general rule adopted by the majority of the Supreme Court of Canada in Vorvis that damages in cases of wrongful dismissal are limited to damages arising from failure to give the required notice unless there is, in addition, separate actionable wrong upon which claim for damages for mental distress can be founded. Damages for mental distress can only be awarded if there is separate actionable wrong out of which the mental distress claim flows; no such wrong was identified at trial. Therefore, the trial judge ought not to have left the issue of aggravated damages for mental distress to the jury as the manner in which the dismissal was carried out (absent conduct that would give rise to an independent actionable wrong) cannot give rise to claim for mental distress damages which would be in addition to an award for damages based on the requirement to give reasonable notice of termination. Since preparing these reasons, the decision of the Manitoba Court of Appeal in Wallace v. United Grain Growers Ltd., 1995 CanLII 6262 (MB CA), [1995] W.W.R. 153 has come to my attention. The following comments by Scott, C.J.M. at p. 181 are consistent with my view of the law respecting damages for mental distress in wrongful dismissal suit: "Thus any award of damages over the above compensation for breach of contract in failing to give reasonable notice must be founded on separately actionable course of conduct. This conclusion explains the absence in the reasons of McIntyre J. to any reference to the concepts of foreseeability, the rule in Hadley v. Baxendale or whether mental suffering would have been in the reasonable contemplation of the parties at the time the employment contract was entered into. This is all negated by the requirement that there be an independent wrong. In fact, this was the point of departure for Wilson J. in her minority judgment in Vorvis in which she would have awarded damages for mental distress [p. 1119] "when it can be said to have been in the reasonable contemplation of the parties when the contract was made that its breach would cause such distress." Decisions such as Pilon v. Peugeot Canada Ltd. (1980), 1980 CanLII 1631 (ON SC), 29 O.R. (2d) 711 (H.C.), Speck v. Greater Niagara General Hospital, supra, Backman v. Hyundai Auto Canada Inc. (1990), 1990 CanLII 4087 (NS SC), 100 N.S.R. (2d) 24 (T.D.), and Swain v. Northern Fortress Ltd. (1993), 1993 CanLII 6571 (NB QB), 131 N.B.R. (2d) 342 (Q.B.), and Ribeiro v. Canadian Imperial Bank of Commerce (1989), 1989 CanLII 4281 (ON SC), 67 O.R. (2d) 385, varied (1992), 1992 CanLII 7447 (ON CA), 13 O.R. (3d) 278 (C.A.) (leave to appeal to S.C.C. denied 157 N.R. 400), which utilized the "foreseeability approach" to award damages for mental distress consequent upon wrongful dismissal are, in my opinion, no longer persuasive. few trial decisions have taken the position that it is still permissible to award damages for mental distress where the acts complained of were not independently actionable: Taylor v. Gill (1991), 113 A.R. 38 [1991 CanLII 5817 (AB QB), [1991] W.W.R. 727] (Q.B.), and Gourlay v. Osmond (1991), 1991 CanLII 4335 (NS SC), 104 N.S.R. (2d) 155 (T.D.). There is, however, substantial support at the appellate level for the conclusion that have reached that any award of damages for mental distress, or aggravated damages in such circumstances must be independently actionable. See, Levitt, The Law of Dismissal in Canada, 2nd ed. (Aurora: Canada Law Book, 1994); Dooley v. C.N. Weber Ltd. (released April 7, 1995, Ont. C.A. [reported 1995 CanLII 866 (ON CA), 80 O.A.C. 234]); Trask v. Terra Nova Motors Ltd. (released March 22, 1995, Nfld. C.A. [reported 1995 CanLII 9836 (NL CA), C.C.E.L. (2d) 157]), together with host of trial decisions. In Francis v. Canadian Imperial Bank of Commerce (1994), 1994 CanLII 1578 (ON CA), 21 O.R. (3d) 75 (C.A.), Weiler J.A., writing for the court, held (at p. 88): Here, no medical evidence was presented at trial to support claim for mental distress. The trial judge did not make specific finding that, in the words of McIntyre J., the conduct of the Bank was "also independently actionable". Accordingly, do not think there is any basis for an award of aggravated damages, or for an award of damages for mental distress. Here the trial judge applied the reasonably foreseeable test. He clearly erred in doing so. His conclusion that there was "negligent breach of the duty of care warranting compensation by way of aggravated damages" cannot stand since there was no finding, and no evidence to support one, that the actions of UGG were such as to constitute an independent cause of action. No authority was cited nor is any available that in the circumstances of this case there is duty upon an employer to take care to discharge an employee in such way so as to reduce or even eliminate any risk of mental suffering or other adverse consequences to the employee." There would be less confusion in the law if Courts applied, rather than ignored, the majority decision in Vorvis. But even conceding that the trial judge might properly have left the issue of aggravated damages for mental distress to the jury, his instructions were wrong. will develop these thoughts in the next segment of the decision by assessing what, in my view, the jury did in this case and why disagree with Justice Freeman's conclusions as to what the jury was really doing in making the award of $60,000 for mental distress. Counsel's Submission and Trial Judge's Instruction to the Jury In order to understand the jury's answers to the questions put to the jury it is helpful, and quite possibly necessary, to consider the summations of counsel to the jury as well as the trial judge's instructions. Mr. Ryan, on behalf of the appellant, submitted that Ms. Killorn was not credible and pointed out number of aspects of her testimony that should raise doubt as to the validity of her claim for mental distress. He submitted that there was no hidden agenda to get rid of Ms. Killorn so as to avoid payment to her of commission on the P.E.I. contract. Mr. Ryan submitted to the jury that four months' salary in lieu of notice was more than reasonable given the terms of her contract and the length of her service. He submitted that the dismissal was carried out in reasonable manner as evidenced by Miss McKiernan coming to Halifax to personally advise Ms. Killorn of the dismissal. Mr. Riddell submitted to the jury that they should find that 24 months' notice would have been reasonable considering the length of time it takes to close sale of this type of product and to enable Ms. Killorn to collect commission on sales in that period: "The law in this province that you hear about says that we're [Ms. Killorn] entitled to period of reasonable notice. You can fire someone without reasonable cause. You've got to provide reasonable notice. They [the appellant] were wrong. You get to right this wrong and you get to correct this injustice. You do. What's reasonable? The big question. In my submission, it's long enough so that the payment of commissions are made to Colleen. It's long enough that she could collect commissions on sales made for those that might have been made during the appropriate notice period. And think that should be the normal sales cycle, two years. The range I'm suggesting when you put in your answer there is minimal of 18 months, maximum of 32 months, but fairness dictates 24 months, okay. Fairness dictates 24 months." He submitted to the jury that Ms. Killorn should also be compensated by an award of aggravated damages for the callous manner in which Ms. Killorn was terminated and that Ms. Killorn had been "ripped off' by the appellant. He submitted that the jury should award punitive damages to send out message to employers not to dismiss employees in such callous manner. The following questions were put to the jury: 1. What period of time by way of reasonable notice is the plaintiff, Colleen Killorn, entitled to, under the circumstances, as result of being dismissed from her employment on July 12, 1993 without cause? 2(a) Has the plaintiff, Colleen Killorn, established that she suffered mental distress as result of conduct arising out of the dismissal by the defendant, Health Vision, other than the dismissal itself, which would warrant or require the awarding of additional damages to the plaintiff for the mental distress? If the answer is yes, briefly describe the conduct. (b) If the answer to question #2(a) is yes; then what amount should be awarded to compensate Colleen Killorn for the mental distress she suffered? 3(a) Was there any conduct by the defendant, Health Vision, for which it ought to be additionally punished by an award of punitive damages? If the answer is yes, briefly describe the conduct. (b) If the answer to question #3(a) is yes; then what amount should be awarded Colleen Killorn for punitive damages?" In the trial judge's instruction to the jury, after dealing with question one, the period of notice of termination that would be reasonable in the circumstances, the trial judge instructed the jury on Questions and 3. After stating the questions to the jury he continued: "Now will explain to you the law on mental distress. In certain cases Court can order or award what are commonly known as aggravated damages. These are damages in addition to the pay or income that would be payable to the plaintiff, Colleen Killorn, during any reasonable period of notice which you decide in question number one. This is in addition to that. In this case the plaintiff, Colleen Killorn, is asking you to award her sum of money to compensate her for the mental distress and the effect on her and her family life which she claims she suffered as result of the conduct of the defendant, HealthVision Corporation, in the manner in which she was dismissed. should point out that aggravated damages for mental distress are not routinely awarded in cases of unlawful termination of employment. This is because there is usually some element of mental distress when person loses their job. However, if the conduct of the employer, in this case, HealthVision, this is important, other than the mere fact of the dismissal itself, that is, if the dismissal is carried out in an unjustified, callous, sudden and inconsiderate manner, such conduct may give rise to damages for mental distress. The conduct complained of must be surrounding the manner of the dismissal not merely the fact that dismissal without notice occurred. can tell you, as matter of law, that because of the nature of the employment in this case, it was foreseeable and must have been in the contemplation or mind of the parties in this case that mental distress could result from dismissal without notice. In this case, you should consider the manner in which the dismissal was carried out and not the actions of Mr. Wilson, which occurred at the seminars prior to the dismissal. Colleen Killorn relies on the fact she was allegedly dismissed because HealthVision was not satisfied with number of aspects of her performance, but she was never told so by way of verbal or written notice. If that was HealthVision's intention, they would normally have been required to advise her of this fact so that she could have reasonable opportunity to address any problem or concerns, as mentioned previously. Colleen Killorn also relies on the fact that the company handbook set out procedure for termination and that it was not followed. She also relies on the fact that all of her records, including her file notes, were all taken from her and not provided to her for review. She was not given notice sorry, she was not given reason for her dismissal. She relies on this fact as well. It is Colleen Killorn's contention that this amounts to callous, offensive, sudden, humiliating and inconsiderate conduct which caused her mental distress in addition to the dismissal itself. Colleen Killorn and others have testified how this affected her. The burden or onus of proving on the preponderance of the evidence that this alleged conduct of HealthVision was unjustified and that this conduct caused her mental distress is or rests upon Colleen Killorn. In addition to her own testimony she relies on the testimony of Dr. Davey, her husband and her friend, who you heard testify, as to her demeanour and her behaviour around this time. She relies on this evidence to establish and prove mental distress. Colleen Killorn, therefore, has to prove three things with regard to question number two. The first that she did, in fact, suffer mental distress; second, that the mental distress which she alleges she suffered was caused by HealthVision's conduct in the manner in which she was dismissed; and third, that the conduct complained of warrants or justifies the awarding of damages for mental distress. On the other hand, HealthVision takes the position that it was not callous or inconsiderate when it dismissed her without cause or notice on July 12th, 1993. It states that it was considerate in having member of the Vancouver office attend personally at the offices in Dartmouth to hand Colleen Killorn the dismissal letter personally rather than advising her by telephone that decision had been made to dismiss her. HealthVision also relies on the fact it offered Ms. Killorn $14,000 cash settlement as compensation for the dismissal without notice. HealthVision also contends that Colleen Killorn has not, in fact, proven that she suffered the mental distress she claims as result of HealthVision's conduct surrounding the dismissal. HealthVision claims Ms. Killorn was suffering from stress before the dismissal which could, therefore, not have been caused by the manner of the dismissal and HealthVision also claims that this level of stress or depression did not change significantly after the [dismissal?]. In the final analysis, it is for you to decide whether Colleen Killorn has proven on balance of probabilities that she suffered mental distress caused by the conduct of HealthVision surrounding her dismissal and it is also for you, the jury, to decide whether the alleged conduct warrants or requires the awarding of damages for mental distress in order to compensate her. Now you have heard the evidence here of Colleen Killorn surrounding her dismissal. She was told there was going to be an audit and it ended up her termination. You had heard the evidence of how she says the dismissal, in the way it was done, affected her family. You heard medical evidence. You have also heard the evidence of HealthVision Corporation as to how they feel that their actions were reasonable in delivering the letter personally, offering her cash settlement of $14,000 and that in view of all the surrounding circumstances they claim their actions were reasonable and that if any mental distress was being suffered around this time by Ms. Killorn, that it was not suffered by their inappropriate actions but by other forms of stress related to things which did not have anything to do with the dismissal itself. Now this is the exercise you will have to go through to decide question number two. The first answer will be either "yes" or "no" and if it is "yes" will ask you to briefly comment. You will note in all of these explanations do not go through all of the testimony and all of the evidence but want to remind you, and I'll remind you at the end, all of the evidence is for you to consider. I'm now going to go to question number three. Question number sorry, before go to question number three, question number two there is (b) part and neglected to mention that. Which really says, If the answer to question number 2(a) is "yes", after you have filled in the little paragraph to describe the conduct then you are asked to answer what amount should be awarded to compensate Ms. Killorn for the mental distress and there would be dollar an amount in dollars. Question 3(a) is, Was there any conduct by the defendant, HealthVision, for which it ought to be additionally punished by an award of punitive damages. And will now explain to you the law on punitive damages. In this case Colleen Killorn has also advanced claim for punitive damages. These are damages in addition to damages for mental distress. Damages for mental distress are meant to compensate the plaintiff compensate just another word for make up to the plaintiff, for the mental suffering and the effects on her and her family life. Punitive damages, on the other hand, are quite different and they are exactly what the name or the term implies. They are meant to punish defendant, in this case, HealthVision, for what Colleen Killorn claims is reprehensible, vindictive, malicious and harsh conduct and conduct which is either at or close to, which the plaintiff argues is at or close to heinous in nature. The conduct complained of in punitive damages claims must be such as to offend the standards of decent conduct in the community. can tell you this is important, can tell you that awards of punitive damages by our courts are rare. In order for such an award to be made, the conduct must be extreme in its nature and such that by any reasonable standard it is deserving of full condemnation and disapproval and requires or warrants punishment. The mere fact that we may disapprove of particular conduct is not sufficient. It must also meet these criterion of extreme that have just mentioned previously. You must bear in mind that punitive damages are form of punishment, the same way fine is punishment. Punitive damages are not for the purpose of compensating the plaintiff for losses but they are, rather, meant to send message to other employers that the Court finds the conduct unacceptable and that it will not be tolerated. The purpose of punitive damages is strictly to punish the wrong-doer and to discourage other employers from following similar unacceptable courses of action. As said, and repeat, the conduct must be extreme before punitive damages can be awarded. Such damages cannot be awarded merely because we disapprove of the conduct, no matter how strongly we disapprove. For these reasons, awards of punitive damages are rare in dismissal without cause cases. The plaintiff, Colleen Killorn, relies on the manner of the dismissal as part of her claim for punitive damages. She also relies very heavily on the contention that she was dismissed summarily on July 12th, 1993, so that, and for the main purpose that HealthVision would not have to pay her commission on large deals such as P.E.I. and Yarmouth, which were approaching or heading towards fruition or nearing fruition. On the other hand, HealthVision relies on their conduct that they have already mentioned in defence of their claim for mental distress, basically the notice delivered personally, the offer of compensation and further contends that there is no evidence whatsoever that HealthVision terminated Ms. Colleen Killorn for the purpose, or primarily for the purpose of depriving her of commissions on deals such as P.E.I. and Yarmouth which were nearing fruition. HealthVision contends the main reason they dismissed Colleen Killorn was because they were dissatisfied with her performance and that they saw the Nova Scotia office location as unnecessary or superfluous and that this matter had been discussed previously. They also point to the fact that, according to their evidence, Mr. Wilson opposed the decision to close the office in Nova Scotia earlier in 1992. However, in the final analysis it is for you, the jury, to decide whether the evidence raises an inference or conclusion that HealthVision terminated Ms. Killorn in order to avoid paying her future commissions. Here Ms. Killorn relies in part on conversations she said she had with Mr. David Wilson, her immediate boss, where she testified he said P.E.I. would not be part of her targets and that she had not done much work on that deal. She also relies on the fact that she was interrupted when she tried to explain the P.E.I. deals at seminars as an indication that HealthVision and, in particular, Mr. David Wilson had plan, as she put it, hidden agenda, to cut her out of the P.E.I. deals by either pushing her to resign and, failing that, by changing her territory or dismissing her entirely. HealthVision, on the other hand, says these allegations are merely conjecture, guesses and speculation and are not supported by the weight or preponderance of the evidence. But, again, in the final analysis it is for you, the jury, to decide whatever kind of extreme conduct that have just explained to you and which is required in order to grant an award of punitive damages to Colleen Killorn. It is for you to decide whether that has been proven by her on the preponderance of the evidence. If you find there is misconduct then you may award sum which will punish HealthVision and/or discourage others from similar conduct. While such an award should be large enough to be meaningful it should not be more than necessary if you find such an award is appropriate in the circumstances. This is the exercise you will have to go through in deciding question number three." (emphasis added) It is clear from review of discussions between counsel and the Court, prior to counsels' summations to the jury and the judge's instructions, just why the jury was asked to state their reasons if they were to make an award for mental distress. The trial judge was of the opinion that it was important that the Court and counsel know "which conduct the jury focused on" in making the award. The trial judge stated: "Otherwise we may never know. And think that since there is danger that they would consider which the case law doesn't allow them to consider, thought it would be appropriate to have them just briefly describe the conduct in case somebody wants to challenge their verdict at any stage. Otherwise we wouldn't know what they focussed on." The trial judge shortly thereafter said "You don't necessarily have to ask what the conduct consisted of in jury questions, but think that in this case it was dangerous not to do so." Counsel for Ms. Killorn agreed. It is also clear from review of the discussions between the trial judge and counsel prior to instructing the jury that the trial judge intended to tie the theory of Ms. Killorn's counsel that she was fired to avoid payment of commissions to the punitive damage question. The trial judge stated to counsel: "See, it seems to me that the punitive damage award hinges on the crucial finding of fact, which is whether HealthVision dismissed Colleen Killorn on July 12th, 1993, primarily and principally with the unacceptable purpose of depriving her of commissions for which she had worked long and hard on projects." The trial judge, after advising counsel, over Mr. Ryan's objection, that he would leave both the issue of mental distress damages and punitive damages to the jury and that he would ask the jury why such awards were made if the jury found Ms. Killorn entitled to such damages, stated to counsel: "So in this case then, do not since we have the two questions asking them to briefly describe the conduct. think it provides the necessary safeguard to ensure the jury properly applies the law and also allows them to make crucial determination of fact as to the reasons for the termination. And believe that finding of fact should be left to the jury. So having said that, will allow the jury to decide the issues of mental distress and punitive damages." Counsel for the appellant then restated for the record that it was his position that leaving the issue of mental distress damages and punitive damages to the jury was inappropriate. The trial judge's instructions to the jury shows that he related the theory, that Ms. Killorn was fired by the appellant to avoid payment of commission on the P.E.I. deal, to the punitive damage question. have underlined those passages of the instruction to the jury to this effect. Considering counsels' summations to the jury and the judge's instructions, would infer from the jury's answers to Questions and 2, coupled with the jury's decision not to award punitive damages, that the jury rejected that theory. Had the jurors wished to allow Ms. Killorn to collect commission on the P.E.I. contract, they would have decided period greater than six months would have been reasonable notice. Had the jurors accepted Ms. Killorn's theory that she was fired so the appellant could avoid payment of the commission on the P.E.I. contract, the jurors would have made an award for punitive damages. Therefore, cannot accept Justice Freeman's conclusion the jury was really compensating Ms. Killorn for the lost commissions when the jury awarded her the $60,000 for mental distress. The award of $60,000 was for the manner in which she was dismissed which the jury described as callous and high-handed. The jury also found fault in the appellant not telling Ms. Killorn over the telephone that it was sending Ms. McKiernan to Halifax to terminate her employment. The jury's answer as to why an award for mental distress was made does not otherwise describe what the callous or high-handed conduct was. Counsel for Ms. Killorn and the trial judge in his instructions to the jury had stressed to the jury the suddenness and callousness of the dismissal without warning, and without reasons, were factors to consider on the issue of mental distress arising out of the termination. In my opinion, the termination without warning or without notice are factors relevant to the issue of reasonable notice and are compensated for by an award to an employee for the breach of the obligation of the employer to give an employee warnings if performance is unsatisfactory and in failing to give the employee reasonable notice of termination. Considering the majority decision in Vorvis, these are not factors relevant to claim for damages for mental distress. Counsel for Ms. Killorn submitted to the jury, and the trial judge instructed the jury, that the failure of the appellant to give Ms. Killorn reasons for her dismissal was factor to consider on the question of aggravated damages for mental distress. With respect, there is no obligation at law on an employer to give reasons for dismissal (Pulsifer v. GTE Sylvania Canada Ltd. (1983), 56 N.S.R. (2d) 424 (N.S.C.A.)). The jury was given the 1989 employment contract and the March 12th, 1993 contract proposal forwarded to Ms. Killorn but was given no instructions as to which contract was in force, if either. Under the circumstances, number of questions come to mind. What contract did the jury consider the parties were bound by? What interpretation did the jury put on the provisions respecting the right of either party to renegotiate prior to the anniversary date of April 1st? Did the jury consider the 1989 contract continued after April 1st, 1993? Did the jury consider the terms of the contracts with respect to entitlement to commissions as provided for in both the 1989 contract and the March 1993 proposal, that is, commissions will be paid when accounts are paid by the customer? The jury was given the contracts without the aid of any instruction from the trial judge as to their legal effect or the legal effect of the appellant forwarding to Ms. Killorn the March 1993 proposed contract. The jury was simply told that there was requirement for reasonable notice and that they were to determine what would have been reasonable notice in all the circumstances. They were not advised whether they were to take into consideration on the mental distress issue the terms of either contract nor were they advised as to what was the effect of the provisions in the employee's handbook respecting termination of employment relationships by the appellant. In short, the trial judge did not instruct the jury as to what were the terms of Ms. Killorn's employment at the date of termination. There was no instruction to the jury with respect to the provision of either contract respecting the payment of commissions following termination of employment. would infer from discussions between the Court and counsel that the trial judge concluded that these were legal questions which were not appropriate for jury. However, it would seem to me that the trial judge ought to have decided these fundamental legal issues before instructing the jury on the questions that were left to them. Otherwise, the jury was acting in vacuum and unable to properly answer any of the questions before them as they had no assistance from the trial judge as to the status of Ms. Killorn's employment contract on the date of dismissal. The parties were entitled to have the trial judge determine these issues as to what the contractual arrangement was as of July 12th, 1993 so that the jury could give due consideration to the terms of the employment arrangement at that time in deciding as to what was reasonable notice under the circumstances and in deciding the question of aggravated damages for mental distress arising out of the termination. If the contractual terms of employment at the time of termination were clear, it may have been appropriate, with proper instruction on the law, to leave the issue of aggravated damages for mental distress to the jury. But in this case the terms of employment at the time of dismissal were not clear. Under the circumstances it demanded careful instruction on that issue as well as an instruction on the law respecting claims for mental distress in wrongful dismissal cases. There are those who suggest the law in Canada is in state of confusion following the decision of the Supreme Court of Canada in Vorvis. To some extent it is, but in my opinion, the courts must try to simplify the law. This can be done by applying the majority decision of Vorvis that damages are not to be awarded for mental distress unless there is an independent cause of action apart from the breach of contract caused by the dismissal without reasonable notice. On the facts of this case, the trial judge did not correctly instruct the jury respecting the issue of damages for mental distress. Apart from the failure to decide and advise the jury what were the terms of Ms. Killorn's employment on July 12th, 1993, the trial judge erred when he instructed the jury that damages for mental distress could be awarded to compensate Ms. Killorn for the manner in which she was dismissed if it was foreseeable that she would suffer such mental distress on termination. This instruction was contrary to the majority decision in Vorvis. Justice Freeman has stated that the concept of an independent actionable wrong, as described in Vorvis, is broad enough to embrace breach of the general duty of care. He then discussed decisions in Donahue v. Stevenson, Anns v. Merton London Borough Council and Canadian National Railway Co. v. Norsk Pacific Steamship Co. Justice Freeman concluded, following the McIntyre analysis, that it would appear to him that damages can arise from mental distress on termination when an employer in breach of the duty of care or in the course of other conduct does something more harmful to the employee than either would have reasonably contemplated and provided for by way of contractual remedy when they entered into the employment contract. The inference to be drawn from Justice Freeman's comments is that the jury could have found that the appellant had duty of care based on the foreseeability of harm if the appellant terminated Ms. Killorn on coming off sick leave. While Justice Freeman acknowledged that given the two approaches in Vorvis, the law of damages with respect to mental distress and wrongful dismissal cases is not free from difficulty, he was of the view that it was not so complex that it cannot be explained to and understood by jury and that it was not an improper exercise of the trial judge's discretion to have left the matter with the jury. For the reasons previously set out, do not agree with him. On the facts of this case the issue of aggravated damages for mental distress should not have been left with the jury. But even if were to agree that it was properly left to the jury and agree that the appellant, in these circumstances, may have had duty of care to Ms. Killorn, which it may have breached, the learned trial judge did not instruct the jury on the law of negligence. This would have been essential in order for the jury to determine this issue. In summary, the trial judge's instruction to the jury on the law respecting an award of aggravated damages for mental distress was totally inadequate no matter how one looks at it. While the issue should not have been left to the jury due to the complexity of the facts, having been left, it was not left in manner that adequately instructed the jury on the issue. The erroneous instruction opened the door to the extraordinary award made in this case. The Award of $60,000 Damages for Mental Distress At trial, the appellant admitted that Ms. Killorn had been dismissed without cause. She had not been given an advance notice but was offered the equivalent of four months' salary in lieu of notice. The appellant has not challenged the jury's finding that six months' notice was reasonable in the circumstances. The cross-appeal by Ms. Killorn on the ground that the jury erred in fixing six months as reasonable notice of termination was abandoned. The judgment for Ms. Killorn was entered for the total sum of $101,122.51 inclusive of pre-judgment interest and costs. Although have concluded that the trial judge, on the facts of this case, ought not to have left the issue of damages for mental distress to the jury, will deal with the appellant's argument that $60,000 was an excessive award. do so because this award, in my opinion, sets dangerous precedent. The decided cases indicate that $60,000 for mental distress in this case is inordinantly high when one considers the reasons given by the jury for making the award. repeat what the jury stated as the reason for making the award: "The conduct of Health Vision Corp. was high handed and callous. Mrs. Killorn was misled into believing her office was being audited when in fact she was also being terminated, this resulted in further financial turmoil, added mental distress to her and her family." Counsel for the appellant has pointed out in his Factum that an examination of 13 Nova Scotia cases that considered damages for mental distress in wrongful dismissal cases indicate that damages for mental distress are the exception. Secondly, that when such damages are awarded, typically they are in the range of $500 to $850. In the following trial decisions, although damages for mental distress were claimed, nothing was awarded for mental distress:Sweet v. The Canadian Indemnity Co. (1980), 43 N.S.R. (2d) 55; Wilcox v. Phillips Electronics Ltd. (1984), 64 N.S.R. (2d) 352; Lynch v. J.D. Mack Ltd. (1984), 65 N.S.R. (3d) 417; Bell v. Isaak Walton Killam Hospital for Children (1986), 1986 CanLII 123 (NS SC), 74 N.S.R. (2d) 309; Backman v. Hyundai Auto Canada Inc. (1990), 1990 CanLII 4087 (NS SC), 100 N.S.R. (2d) 24; Cardenas v. Clock Tower Hotel Ltd. Partnership (1993), 1993 CanLII 4666 (NS SC), 120 N.S.R. (2d) 49; Monk v. Coca-Cola Bottling Ltd. (1996), 1996 CanLII 5490 (NS SC), 150 N.S.R. (2d) 192 and Damery v. Matchless Inc., [1996] N.S.J. No. 229 (S.C.). In the following cases Nova Scotia trial courts fixed damages in nominal amounts (less than $1,000) for mental distress arising out of wrongful dismissal: McNair et al v. J.D. Bremner Son Ltd. (1983), 58 N.S.R. (2d) 222; Morin v. Atlantic Cooperative Publishers (1988), 88 N.S.R. (2d) 117 and Legorburu v. Det Norske Veritas (1990), 1990 CanLII 4118 (NS SC), 97 N.S.R. (2d) 250. In McOnie v. River Pub Ltd. and Rofhie (1987), 79 N.S.R. (2d) 379 (S.C.) the Court awarded $6,500 for mental distress arising out of wrongful dismissal and in Russell v. Nova Scotia Power Inc. (1996), 1996 CanLII 5438 (NS SC), 150 N.S.R. (2d) 271 an award of $40,000 was made. In McOnie (supra) in routine meeting, the plaintiff met the defendant and his solicitor for breakfast. Without any notice he was handed letter terminating his services. The Court found that the dismissal was without cause. The plaintiff had resigned from his seven year job to work with the defendant and had been working less than year when his employment was terminated. The plaintiff testified that he was humiliated and devastated and had difficulty adjusting. He gained weight, and became reclusive and depressed. psychiatric expert diagnosed depressive illness. The trial judge found that the manner of the dismissal warranted an award for mental distress. McOnie was decided before the decision of the Supreme Court of Canada in Vorvis. In Russell (supra) the plaintiff was dismissed for unfounded allegations of incompetence and insubordination after 17 years with Nova Scotia Power. The employer sent an e-mail message to other employees to the effect that the plaintiff was dismissed for incompetence. The effect of this conduct was found to have aggravated the plaintiff’s longstanding and well controlled generalized anxiety disorder and almost immobilized him for several months after termination. The Court noted the rarity of such awards but found on the evidence the employer's actions were oppressive. This award was post Vorvis. The award was made for stress over and above that caused by the dismissal itself. There are decisions from other provinces in which substantial awards have been made for mental distress and they are relied upon by counsel for Ms. Killorn. In Pilato v. Hamilton Place Convention Centre Inc. (1984), 1984 CanLII 1909 (ON SC), C.C.E.L. 241, 45 O.R. (2d) 652 (H.C.J.) an award of $25,000 was made. The 36 year old employee had been employed by the defendant for about two years when serious allegations were made against him. The plaintiff was not given the opportunity to respond to them and his dismissal was published in the press while he was on vacation. The court considered psychiatric evidence and make the award for aggravated damages in addition to an award of $25,000.00 punitive damages. In Young v. Huntsville District Memorial Hospital (1984), C.C.E.L. 113 (Ont. H.C.J.) an award of $20,000 was made to 55 year old employee who had been employed for 18 years as business manager with the defendant. He suffered heart attack and required two months to recover. When he returned to work, he was depressed. He was then subjected to increased demands by superior and eventually was presented with negative performance review one month after his return. He was demoted; the Court found that he had been constructively dismissed. The Court emphasized the size of the community, the recklessness of the dismissal, the fact that the employers knew of his delicate condition. The Court held that "any reasonable view of the contractual situation entered into by the parties in 1964 would have included the realization that such distress could have followed wrongful termination of the contract by the parties to it". In Smith v. Reichhold Ltd. (1988), T.L.W. 743-001 (B.C.S.C.), an award of $30,000 was made for mental distress for plaintiff who had been plant manager with 20 years of service to the defendant. Certain allegations of misconduct and criminal acts were made against the plaintiff resulting in his dismissal. The employer did not investigate the allegations or allow fair hearing before the dismissal and treated the plaintiff as security risk. The court found that the plaintiff had been insulted, humiliated and suffered mental distress. In Pilato, Young, and Smith the decisions were pre Vorvis and were significantly different on their facts from Ms. Killorn's situation. In Pilato there were serious allegations made against the plaintiff. He was not given an opportunity to respond. His dismissal was published in the press while he was on vacation. Nothing of this sort took place with respect to the dismissal of Ms. Killorn. In Young the employee was 55 years of age, had been employed for 18 years, and had suffered heart attack. Clearly the dismissal on his return to work was very reckless and warranted substantial award. In Smith the plaintiff had been an employee with 20 years of service. Allegations of misconduct and criminal acts were made against him resulting in his dismissal. The employer did not investigate the allegations. Obviously factual situation far different than that of Ms. Killorn's. The following are post Vorvis decisions in which awards for mental distress damages were made. Counsel for Ms. Killorn also relies on these decisions. In Ribeiro v. Canadian Imperial Bank of Commerce (1992), 1992 CanLII 7447 (ON CA), 44 C.C.E.L. 165 (Ont. C.A.) an award of $20,000 for mental distress was made to 30 year old employee who had been employed as consumer loans officer for six years. The bank had made allegations that the employee had acted improperly and terminated the employee with minimal investigation. Criminal charges were also brought forth. The Court concluded that he was wrongfully dismissed and the allegations were unfounded. The Court also found that the actions of the bank were wanton and reckless and that these actions caused severe depression. The Court of Appeal also awarded the plaintiff $50,000 punitive damages to punish the bank for its reprehensible and vindictive conduct. Neither the trial judge nor the Court of Appeal made any reference to the Supreme Court of Canada decision in Vorvis. Leave to appeal to the Supreme Court of Canada was refused. In Hughes v. Gemini Food Corp (1992), 45 C.C.E.L. 113 (One. Gen. Div.) an award of $75,000 was made to the plaintiff who was chief executive officer of the defendant and had been in that position for short time. Allegations of misconduct came forth with respect to business dealing and eventually the plaintiff was terminated in very public manner. He suffered mental distress. The court awarded $75,000 as aggravated damages, citing Ribeiro in its reasons for judgment; there was no reference to the Supreme Court of Canada position in Vorvis. In Dixon v. B.C. Transit (1995), 13 C.C.E.L. (2d) 272 (B.C.S.C.) an award of $50,000 for mental distress was made to the plaintiff who was president and chief executive officer of the defendant company. He had joined the defendant after leaving secure job. He was terminated seven months later. The defendant made allegations of poor performance when there was no cause and the defendant simply wished to avoid paying severance. The employee suffered aggravation, frustration and public humiliation. In allowing the claim for aggravated damages, the Court noted that the actions of the defendant in dismissing him, knowing there was no cause, but stating that there was, could be considered an independent tort of deceit. The Court also awarded $75,000.00 in punitive damages because the actions of the defendant in advising the media that the plaintiff had been fired for cause, when no cause existed, and in refusing to pay him one year's salary as provided for in the contract were defamatory and malicious. The Court followed the decision in Vorvis. In Ribeiro allegations of improper activity and even criminal charges were brought forth. The situation in Ribeiro was far different from the conduct of the appellant in the appeal we have under consideration. In Hughes (supra) allegations of misconduct were made; the plaintiff was terminated in very public manner. No such allegations were made against Ms. Killorn. In Dixon (supra) the plaintiff had left secure position and was terminated within very short period of time (7 months). Allegations of poor performance were made when there was no cause to make such allegations. The dismissal was made in very public manner. The court found that the defendant simply wished to avoid paying severance. The court also found the employer committed the torts of deceit and defamation. The employee suffered aggravation, frustration and public humiliation. These facts puts this situation in considerably different category than that of Ms. Killorn. In Russell the plaintiff was subject to unfair demands and unfounded criticisms by supervisor; his dismissal for his incompetence was announced to other employees by e-mail. He suffered mental distress and the award of $40,000 was made. This award was high but was not appealed. There were no such publicized allegations made by the appellant against Ms. Killorn. Analysis of the Facts Relevant to the Jury Award of $60,000 Damages for Mental Distress In addition to the significant facts referred to in Justice Freeman's opinion relating to the conduct of the appellant leading up to July 12th, 1993, it is well to also keep in mind other facts relevant to her termination and the mental distress claim arising therefrom. Ms. Killorn was unemployed prior to being engaged by the appellant in 1989. She was not induced away from secure job. She did not have long term employment or any form of job guarantee with the appellant. She was suffering from stress as early as 1992. This stress was unrelated to the termination of her employment. She had not met her sales goals in 1990, 1991 or 1992. Her husband's business was not successful; she was the primary income earner. She was having problem with her weight and had consulted Dr. Davey with respect to that matter in February of 1993. The cause of her stress cannot be attributed solely to the events involving the appellant starting in March of 1993. As early as 1992 Mr. Brand wanted to close the Atlantic Canada office as it could not be justified on financial considerations. At that time he acquiesced in Mr. Wilson's desire to keep it open. Mr. Wilson obviously changed his mind in 1993. It was by no means clear that in February/March 1993 that the appellant would be able to successfully negotiate contract with the P.E.I. Commission as is evidenced from the extensive negotiations which took place following the Committee's decision that the appellant would be its preferred supplier. The revised compensation package forwarded to Ms. Killorn on March 16th, 1993, was the identical package forwarded to the other five Canadian sales representatives. It was not package hatched to upset Ms. Killorn. With respect to the interruption of her presentation at the sales conference in Victoria on June 7th, 1993, Mr. Brand testified that he was there and the interruptions were the standard procedure when sales representatives are making presentations so that management could make informed decisions on what sales could be expected from the sales representatives in the upcoming year. On June 7th Ms. Killorn left the meeting and told Mr. Wilson not to contact her. Under the circumstances, what course was open to the appellant other than to assign another sales representative in Toronto to service the accounts until she came off sick leave and so inform her customers? Ms. Killorn decided to return to work on July 9th. The appellant was not told the nature of Ms. Killorn's problem as the note from the doctor merely stated that Ms. Killorn was under his care but should be able to return to normal duties within four to eight weeks. Was it not reasonable for the appellant to assume that when Ms. Killorn decided to return to work that she had recovered and would be able to deal with the appellant's decision to terminate her? Was it unreasonable of the appellant not to advise her by phone in advance of Ms. McKiernan coming to Halifax that the appellant intended to terminate her? To have done so would have completely negated their desire not to crassly terminate her employment by phone call rather than have Ms. McKiernan travel from Vancouver to Halifax to tell her personally. Ms. Killorn was initially engaged pursuant to contract that was for one year and renewal from year to year unless renegotiated. She had been employed for less than five years. Under the circumstances, was four months' salary so unreasonable that the termination would cause such extraordinary stress to Ms. Killorn that $60,000 award was warranted? Was clearing out her office in Halifax so unreasonable, having terminated her? To have done so was not an unusual or unreasonable procedure in business. Had the appellant wished to terminate Ms. Killorn to save the commission it could have done so at any time in March 1993 by simply notifying her that her contract was not being renewed. There was no need to go through the convoluted process that was described by Ms. Killorn as hidden agenda. The appellant was hardly any closer to obtaining contract with the Commission in July of 1993 than it was in March of 1993. The negotiations were extensive and did not conclude with contract until November, 1993. The reasonable inference from the facts is that the appellant did not decide to terminate Ms. Killorn until after the June 7th, 1993, incident in Victoria, British Columbia. would repeat the point made earlier that the jury apparently rejected the theory advanced on behalf of Ms. Killorn that the appellant wished to cheat her out of her commission as the jury did not award her the 24 months' notice urged upon the jury by Ms. Killorn's counsel so as to pick up commissions that would eventually be paid on the P.E.I. contract. Nor did the jury make an award for punitive damages which the trial judge had clearly linked to the theory that the appellant was attempting to cheat her out of the commission. As previously stated, disagree with Justice Freeman's analysis that the jury could have concluded that the events leading up to her dismissal on July 12th, 1993, were for the purpose of ensuring she did not get the $90,000 commission. What the jury did and did not do simply does not support such finding. The jury made no specific findings of callous behaviour by the appellant towards Ms. Killorn other than the appellant indicated to Ms. Killorn that Ms. McKiernan was coming down to do an audit when she was also coming to terminate Ms. Killorn's employment. Unlike other cases in which substantial awards were made for mental distress, Ms. Killorn's dismissal was not done in public manner; there were no allegations of misconduct made against her, no defamation, nor any deceit. In short, there was no separately actionable wrong identified by the jury upon which it could have made such an award. Furthermore, the facts surrounding the dismissal of Ms. Killorn simply do not equate with the facts of those cases in which substantial awards were made for mental distress arising out of the manner in which the termination was carried out. would note that in Vorvis both the majority reasons of McIntyre J. and the minority reasons of Wilson J. decided that Vorvis was not case in which there should be any award for aggravated damages arising out of mental distress despite the fact that Mr. Vorvis was distressed as result of the dismissal. The standard measure of damages for dismissal of an employee without cause and without notice is based on what would have been reasonable notice of termination considering all the circumstances. Claims for mental distress arising in wrongful dismissal cases have come to the fore only in recent years. Since the Supreme Court of Canada decision in Vorvis, those decisions that do not turn on finding of separate actionable wrong, apart from the dismissal, are no longer of persuasive authority. In my opinion, aggravated damages for mental distress can be awarded on the limited basis established by the majority decision of McIntyre J. in Vorvis (see paras. 21-23 inclusive of that decision as previously set out). While Justice McIntyre left the door open for claim for damages on some basis other than separate actionable wrong, until such time as the Supreme Court of Canada identifies such other basis for claim, courts should only award damages for mental distress if the employer has committed an actionable wrong separate and apart from the breach of contract that gave rise to the wrongful dismissal claim. To proceed otherwise creates too much confusion in the law. The majority of the Supreme Court of Canada did not accept the reasoning of Justice Wilson with respect to the legal principles to be employed in considering an award for mental distress in these cases. It is of interest to note that in Vorvis Justice Wlson respectfully rejected what she described as the narrow approach in English Courts in both Bliss v. South East Thames Regional Health Authority, [1987] I.C.R. 700 and Hayes v. James and Charles Dodd (a firm), [1990] A.E.R. 815 (C.A.), in which cases the Courts concluded, as matter of policy, that there should not be damage awards for reasonably foreseeable mental distress in breach of contract of employment cases. Justice Wilson stated in paragraph 45: "The Court of Appeal in Hayes and anor v. Dodds seems to have been unduly concerned at the prospect of large "U.S.-style" awards for mental suffering, ignoring the fact that the award has to be quantified on sensible and realistic basis. Indeed, awards under this head have tended to be rather modest in Britain and in Canada. For example, in Cox v. Philips Industries Ltd., the damages for mental suffering awarded against the corporate employer were assessed at £500. In the Canadian cases of Antonaros v. SNC Inc. and Pilon v. Peugeot Canada Ltd., the damages (also against corporate employers) were assessed at $3,500 and $7,500 respectively. mention this not to endorse the propriety of the awards in these cases but to point out that the fear of unrealistic or unfair awards for mental distress in breach of contract cases is not really warranted by anything that has happened to date." The award made to Ms. Killorn of $60,000 for mental distress for the manner in which she was dismissed as found by the jury by the answer to Question illustrates that the fear of unrealistic jury awards for mental distress in wrongful dismissal cases is now real. In Wallace v. United Grain Growers (supra), Scott, C.J.M. stated at p. 178 that the rationale for the English policy is not hard to ascertain "Given that an innocent party may well suffer an adverse emotional reaction (or worse) consequent upon wrongful dismissal, if right to damages for mental distress was based on foreseeability of damages arising out of the circumstances surrounding the dismissal, this would be inconsistent with the fundamental tenet of employment law referred to earlier in Vorvis namely, that either party is entitled to terminate the employment arrangement (leaving aside contractual provisions to the contrary, such as collective agreement) subject to reasonable notice or damages in lieu thereof." Summary on the Issue as to the Quantum of the Mental Distress Award The appellant had decided to terminate Ms. Killorn's employment in mid June, 1993. Ms. Killorn was on sick leave. The appellant waited until she returned to work and then sent Ms. McKiernan from Vancouver to Halifax to advise her of the termination rather than do it over the telephone. The jury awarded $60,000 because the appellant was callous and high-handed and had deceived Ms. Killorn in not advising her that one of the objects of Ms. McKiernan's visit to Halifax was to terminate Ms. Killorn's employment. The question must be asked: Does the appellant's conduct in the months preceding the dismissal and the appellant's decision not to tell Ms. Killorn that Ms. McKiernan was coming to Halifax to terminate her warrant an award of $60,000 for mental distress? The answer must be no. Based on the reasons given by the jury for making the award of $60,000, the award is so inordinantly high that it is wholly erroneous estimate of the damage. To allow such an award to stand has the effect of turning the law respecting an assessment of damages in wrongful dismissal case on its head as the award for mental distress is three times the award made by the jury based on the requirement that an employer give reasonable notice of termination. If an award of damages for mental distress was lawful, the facts do not disclose conduct by the appellant that would justify jury award in excess of $15,000, as gauged by awards made in other cases. Conclusion The suddenness and callousness of a dismissal does not constitute conduct that gives rise to an actionable wrong separate and apart from the cause of action for the dismissal without cause and without notice. Damages for wrongful dismissal are to compensate the employee for the failure of the employer to give reasonable notice. The damages are compensatory and are measured by calculating the loss of income of the employee for the period that would have been encompassed by reasonable notice of termination. In the absence of facts disclosing separate actionable wrong, as, for example, where defamation is proven, there cannot be an award of damages for mental distress arising from the wrongful dismissal. As in Vorvis, the facts do not warrant an award of damages to Ms. Killorn for mental distress. would allow the appeal and set aside those parts of the trial judge's order that relate to the award of damages for mental distress and pre-judgment interest on that award. Apparently there was an offer to settle. Therefore, would reserve the matter of costs, both at trial and on appeal, so this Court can receive submissions by counsel for the parties that would arise as result of such an offer having been made. Hallett J.A. Concurred in: Roscoe J.A. 1993 S.H. No. 93-4487 IN THE NOVA SCOTIA COURT OF APPEAL on appeal from the SUPREME COURT OF NOVA SCOTIA BETWEEN: J. COLLEEN KILLORN and HealthVISION CORPORATION, body corporate, formerly known as HCS HEALTHCARE SYSTEMS INC., body corporate DEFENDANT HEARD BEFORE: The Honourable Justice Allan P. Boudreau PLACE HEARD: Halifax, Nova Scotia DATE HEARD: February through 14, 1996 JURY VERDICT RENDERED: February 14, 1996 COUNSEL Raymond S. Riddell, for the Plaintiff William Ryan, Q.C. and Nancy G. Rubin, for the Defendant NGR/0193433.01 C.A. No. 125259 NOVA SCOTIA COURT OF APPEAL BETWEEN: HEALTHVISION CORPORATION, body corporate, formerly known as HCS HEALTHCARE SYSTEMS INC., body corporate Appellant (Respondent on Cross-Appeal) and J. COLLEEN KILLORN Respondent (Appellant on Cross-Appeal) REASONS FOR JUDGMENT BY: HALLETT, J.A. ROSCOE, J.A. (Concurring) Freeman, J.A. (Dissenting)

The respondent was hired as an account manager by the appellant. She did not reach her planned sales goals during her employment, and became depressed. She took six weeks off work on the advice of her doctor. When she returned from sick leave she was dismissed by the appellant, who had already decided to terminate her employment after concluding that she was not able to handle the job. She claimed damages for mental distress for the sudden and callous manner in which she had been dismissed. The jury awarded the respondent $20,000 in lieu of notice and $60,000 damages for mental distress. The appellant appealed the award for mental distress. Per Hallett, J.A., Roscoe, J.A., concurring, allowing the appeal, that the suddenness and callousness of a dismissal does not constitute conduct that gives rise to an actionable wrong separate and apart from the cause of action for the dismissal without notice. Per Freeman, J.A., dissenting, dismissing the appeal, that a degree of mental distress is always likely to accompany the termination of employment. However, when the employer's conduct aggravates the mental distress beyond the degree which can be remedied by agreement or reasonable notice, a right to further damages arises.

6_1997canlii9876.txt

IN THE YOUTH JUSTICE COURT OF NOVA SCOTIA Citation: R. v. R.C. 2008 NSPC 12 Date: March 5, 2008 Docket: 1763716 Registry: Halifax Her Majesty the Queen R.C. Restriction on publication: S. 110(1) YCJA Subject to this section, no person shall publish the name of young person, or any other information related to young person, if it would identify the young person as young person dealt with under this Act. Judge: The Honourable Judge Pamela S. Williams Heard: February 20, 2008 in Halifax Youth Justice Court Oral decision: March 5, 2008 Charge: s. 5(2) Controlled Drugs and Substances Act Counsel: James Whiting, for the Crown Megan Longley, for the Defence INTRODUCTION [1] R.C., a young person within the meaning of the Youth Criminal Justice Act (YCJA), is charged, on or about the 23rd of April, 2007, with having in his possession for the purpose of trafficking, crack cocaine, contrary to s. 5(2) of the Controlled Drugs and Substances Act. [2] This is a decision following a voir dire held to determine the lawfulness of the strip search of R.C. by police, and the admissibility of 17.8 grams of crack cocaine found on the young person. Crown and defence have agreed that the evidence heard on the voir dire is to form part of the trial proper. LAW STRIP SEARCHES [3] The leading case on strip searches in Canada is the Supreme Court of Canada case of R. v. Golden 2001 SCC 83 (CanLII), [2001] SCJ 81. It confirms many of the principles previously enunciated on the law related to warrantless searches and it sets out the parameters for strip searches. [4] quick summary of the principles are as follows: 1. There is constitutional right to privacy. 2. Unjustified searches by the state are prohibited. 3. Warrantless searches are prima facie unreasonable. 4. Search incident to arrest is an established common law exception to the rule. 5. Search incident to arrest does include the power to strip search, subject to limitations. [5] strip search is defined at paragraph 47 as: the removal or rearrangement of some or all of the clothing of person as to permit visual inspection of person’s private areas, namely genitals, buttocks, breasts (in the case of female) or undergarments. [6] The two part test in determining whether warrantless strip search is lawful can be stated as follows: 1. Were there reasonable and probable grounds to conduct the strip search? 2. Was the strip search, carried out at the police station, conducted in reasonable manner? [7] Where the reasonableness of the search is challenged by the accused, the crown bears the onus of proof (on balance of probabilities) that the search was reasonable. APPLICATION OF THE FACTS TO THE LAW Part One Were there reasonable and probable grounds to conduct the strip search? [8] In determining whether reasonable and probable grounds exist to conduct the strip search, three conditions must be met: 1. The individual must be lawfully under arrest; 2. The strip search must be incident to arrest, meaning that it must be specifically related to the reasons for the arrest itself; and 3. If the search is taking place for the purpose of finding evidence, it must be governed by the need to preserve the evidence and prevent its disposal by the arrestee. [9] R. C. was arrested in possession of motor vehicle, that had previously been stolen by Scott Tufts and purportedly traded, by Tufts, for drugs. [10] In an attempt to retrieve the vehicle, after having been arrested and charged with stealing it, Scott Tufts placed call and arranged for someone to meet him (hopefully in the stolen vehicle) at an agreed upon location to complete another drug transaction. [11] Police intercepted the stolen vehicle at the agreed upon location. It was being driven by R. C. R. C. was arrested and charged with possession of the stolen vehicle. [12] Later, at the police station, police conducted strip search of R. C. and located quantity of cocaine. R. C. was then charged with possession of cocaine for the purpose of trafficking. Save for the arrest on the stolen vehicle charge and subsequent strip search which resulted in the detection of cocaine, there would have been no grounds to charge R. C. with possession of cocaine for the purpose of trafficking. Was R. C. lawfully under arrest? [13] Clearly, R. C. was lawfully under arrest for having been found in possession of the stolen vehicle. The vehicle matched the make, model, year and color of Susan Bell’s stolen vehicle and it matched the license plate number reported to police. There was only one person in the vehicle, the driver, R. C., and the owner had not given him permission to drive or possess it. Was the Strip Search Incident to Arrest, i.e. Was it Specifically Related to the Reasons for the Arrest itself? [14] What is meant by “specifically related to the arrest itself”? It is clear from the evidence that the strip search was not “solely related” to the reasons for arrest but was it was “related” to the reasons for arrest. For direction turn to R. v. Debot (1989) 1989 CanLII 13 (SCC), 52 CCC (3d) 193 wherein the Supreme Court of Canada stated that in assessing the reasonableness of search the court must consider the totality of the circumstances including the nature of the information supplied by the informer and confirmation of information by the police investigation. Therefore, in determining whether the strip search of R. C. was specifically related to the reasons for the arrest will consider the totality of the circumstances surrounding the arrest. [15] On Sunday April 22, 2007 Constable Proulx received complaint from Susan Bell wherein she reported that Scott Tufts had stolen her 2002 Ford Focus, Nova Scotia License plate number DYN655, the previous day. [16] On Monday April 23, 2007 Scott Tufts was arrested and interviewed by Constable Proulx. Mr. Tufts provided story to police about two black males who had kid-napped him and who had subsequently taken Ms. Bell’s vehicle. He said he had met them downtown on Saturday to buy drugs. Mr. Tufts said he had escaped when he offered to go get money to pay for crack they were selling. [17] Police readily admit they did not believe Mr. Tufts story about an abduction. They had serious issues with Mr. Tufts credibility. [18] While in police custody Scott Tufts told police he could get the motor vehicle back by placing call and arranging for place to meet to do further drug transaction. It was Constable Withrow’s opinion that the same person who was the seller of the crack would be transporting it in Ms. Bell’s stolen Ford Focus. [19] Police readily admit they thought, at the time, this might simply have been an attempt on the part of Mr. Tufts to talk himself out of trouble, that is, avoid theft conviction. Constable Proulx had never dealt with Mr. Tufts before but he knew Tufts had lengthy criminal record. Constable Withrow testified that he had no expectations. He believed that Tufts was involved in the drug world and was drug user. In his words, ‘it was worth chance to get the motor vehicle back’. With little or no other options available, police agreed to allow Tufts to place call to set up drug deal in the hope that Ms. Bell’s motor vehicle would be driven to the pre-arranged location for the drug transaction. [20] While in police custody Mr. Tufts placed one call at 10 p.m. and arranged for meeting to do drug transaction at the Esso on Lady Hammond Road in Halifax. Constable Lobsiger, who was out on patrol in the area, was advised by Constable Withrow at 10:01 p.m. to be on the look-out for Ford Focus displaying license plate number DYN 655. Constable Lobsiger was sitting in his police car near the West End Mall. At 10:13 p.m. he saw the vehicle near 6960 Chebucto Road and followed it. He and Constable Withrow (each in separate vehicles) stopped the Ford Focus on Romans Avenue and arrested the driver, R. C. [21] R. C. was arrested because he was the confirmed driver and sole occupant of the motor vehicle that had been reported stolen within the previous 48 hours. The arrival of that vehicle near the location of the arranged drug transaction, so soon after the call had been placed, lent credence to Tuft’s assertion that he could get the vehicle back by arranging drug deal. It was therefore quite conceivable that the driver and sole occupant of the vehicle would have drugs on his person that were intended to be sold to Tufts. Furthermore, Constable Withrow knew R. C. He knew that R. C. had prior involvement with drugs. He was also aware of intelligence reports that indicated that R. C. resided in and was associated with areas where the drug trade occurred. And, Constable Withrow stated that he had seen R. C. in areas frequented by people who buy and sell drugs. [22] The search of R. C., incident to his arrest for possession of stolen vehicle, did not, and understandably would not result in the detection of drugs if hidden on his person under his clothing. The strip search conducted at the police station later on was not for the purpose of affording evidence related to the stolen vehicle, but it was for the purpose of affording evidence related to the possession of drugs for the purpose of trafficking, which itself, was reasonable conclusion to draw, based on the substance of Tuft’s telephone call together with the subsequent arrival of the stolen vehicle near the agreed upon location. On the balance of probabilities, I find that the strip search was specifically related to the totality of circumstances surrounding the arrest of R. C. and was ,therefore, incident to arrest. Was the Search for the Purpose of Finding Evidence? If so, Was it Governed by the Need to Preserve Evidence and Prevent its Disposal by the Arrestee? [23] The strip search took place for the purpose of finding drugs. Drugs by their very nature can be easily concealed, disposed of or ingested. Police had earlier determined that R. C. would be held overnight and taken to court the following day to be arraigned on charge of possession of stolen vehicle. Police were concerned that R.C. was potentially in possession of drugs and that, in custody, they might be to be ingested, hidden or destroyed by the accused. Furthermore, police were concerned that there was potential for drugs to enter the cells or the Courthouse. As one knows, metal detectors are of no assistance in detecting drugs on person. [24] conclude, therefore, that the search was for the purpose of not only preserving evidence, that is, the drugs, but also for the purpose of preventing their destruction, their ingestion by the accused or their dissemination in the jail setting or courthouse cells. These were both legitimate and real concerns on the part of police. Part Two Was the strip search carried out at the police station conducted in reasonable manner? [25] As pointed out by counsel, Golden, supra, at para. 101 provides framework for police in deciding how best to conduct strip search incident to arrest that is in compliance with the Charter. The evidence will be analyzed in reference to that framework. [26] Was the strip search conducted at the police station? Clearly, it was. [27] Was it conducted in manner that ensured the health and safety of all involved? Yes it did. Whether one accepts the young person’s version of events or that of the officers, it is obvious that the officers advised the young person, in advance, that they were going to do strip search. They afforded the young person the opportunity to remove his own clothing or have it removed by officers, with force, if necessary, if he refused to remove it himself. After an initial refusal, R. C. reluctantly removed and/or rearranged his outer clothing in the presence of at least one officer after which bag containing cocaine was removed from his underwear. There was no physical contact by officers to the person of R. C. during the strip search. [28] Was the strip search authorized by police officer acting in supervisory capacity? The evidence establishes that Constable Lobsiger called his road sergeant to let him know of their intention to do strip search. Though there was no evidence that the road sergeant authorized the strip search, conclude, based on the evidence of Constables Lobsiger and Withrow that he did not forbid it. [29] Were the officer(s) carrying out the strip search of the same gender as the individual being searched? The young person and the officers involved were all males. [30] Were the number of police officers involved in the search no more than was reasonably necessary in the circumstances? Although there is discrepancy in the evidence of R. C. and that of the police officers, find that whether Constable Lobsiger was by the door on the inside of the room or on the other side of the door, outside of the room, the number of officers (either one or two) in the room was reasonable. It was clear from the evidence that only one officer, Constable Withrow, was actually participating in the strip search of R. C. [31] Was minimum force necessary used, to conduct the strip search? No physical force was used. Officers advised that physical force would be used if R. C. chose not to cooperate with the strip search. find this was not threat. It was statement of fact based on the lawful authority the police felt they had at the time. R. C. reluctantly cooperated and thus no force was used. [32] Was the strip search carried out in private area such that no one other than the individuals engaged in the search could observe the search? The strip search was conducted in private cubicle, without windows, upstairs in the police station. There was video camera in the room but it was not activated. According to the officers, Constable Lobsiger left the room, at the request of R.C., for the purpose of the strip search. The door was left ajar. Constable Lobsiger says he did not watch the search being conducted nor does he recall hearing any conversation. R. C. says that Constable Lobsiger was in the room during the search but by the door holding it open and apparently was not directly involved in the search itself. Either way, the evidence establishes that the search was carried out in private area and, at most, two officers were privy to the search of R.C. [33] Was the strip search conducted as quickly as possible and in way that ensured that the young person was not completely undressed at any one time? R. C. was never completely undressed. He had removed his outer clothing but at no time did he remove his tank top or his underwear. According to Constable Withrow the strip search was completed within 30 seconds. R.C. said that it took approximately 15 minutes to complete. The discrepancy may be attributed to differing time period that each estimated. The time period estimated by Constable Withrow appeared to encompass the time it took to undo clothing and remove the drugs from the underwear. The time period described by R. C. appears to have encompassed the whole process, that is, the time from when the officers advised him there would be strip search to the time of the discovery of the drugs. In any event, conclude that the entire process took longer than 30 seconds but likely much less than 15 minutes. Several minutes were obviously spent over an exchange as to whether the police had right to do strip search and whether R. C. first had the right to contact lawyer or his grandmother. The strip search itself however was conducted as quickly as possible. [34] Did the strip search involve visual inspection of the arrestee’s genital and/or anal areas? On the evidence it is clear that there was no visual inspection of the young persons private areas. The drugs were removed from the underwear without any view of the private area. [35] Was the detainee given the option of removing the object himself? The evidence on this point is contradictory. Constable Withrow testified that it was the accused, R. C., who removed the plastic bag from his underwear. According to the officer’s evidence, R. C. lifted up his shirt, undid the front of his jeans, pulled them down slightly (approximately one foot) opened his boxers 6-12 inches, put his hand down the front of his underwear and pulled the drugs out. R. C. for his part, testified that he himself removed his sweatshirt and t-shirt and that he lowered his pants to his ankles and then removed his gym shorts. He stated that Constable Withrow patted him down and pulled the drugs out of R. C.’s underwear. On cross-examination however R. C. was not very clear on exactly how the drugs were located. He stated that the officer ‘dug around his private area’ but did not touch his private area. He opined that the officer must have seen the plastic; that it was visible poking out of his underwear. He stated that the officer reached and grabbed the bag and touched him while grabbing and removing the plastic bag. When asked specifically where the touching occurred, R. C.’s evidence was less than clear. He had indicated that the officer reached to the side of his briefs’. At another point he said the officer was ‘feeling on his leg’, after which he backed up and the officer then pulled the bag out. When asked to describe the location from where the bag was pulled, R. C. pointed to the zipper area of the jeans he was wearing while testifying. When asked whether the drugs were pulled from the ‘fly/pocket area’ of his briefs, through the waistband or through the leg, R. C. was ambivalent. Based on R. C.’s testimony am left with the impression that R. C. either doesn’t know how the drugs were removed from his shorts or that he removed them himself and was unable to provide convincing version of events otherwise. Either way, find R. C.’s explanation unreliable and unbelievable. accept the evidence of Constable Withrow who described situation in which the young person removed the drugs from his own underwear. His evidence was clear, concise and entirely plausible. [36] Was proper record kept of the reasons for and the manner in which the strip search was conducted? It is unclear from the evidence exactly what type of record was kept. Police officers made notes which were referred to in the course of testimony but the court was not privy to the notes themselves to determine what reference, if any, was made to the strip search. Telephone contact was made with superior officer before and after the search was conducted. The contents of those conversations did not form part of the evidence. One might conclude that the reasons for the strip search were discussed with the supervising officer prior to the search but there is no evidence of this. Constable Withrow was able to enunciate, during the course of his testimony, the reasons why he wanted to conduct strip search and how the strip search was conducted. This may or may not have been recorded elsewhere. In this case little turns on it as there was not great deal of discrepancy in the accounts given by the young person and the police as it relates to the type of strip search that was conducted. It was relatively quick and minimally invasive. APPLICATION OF THE YOUTH CRIMINAL JUSTICE ACT [37] As defense counsel points out, Golden, supra, was decided prior to the enactment of the YCJA which affords young persons charged with criminal offences enhanced procedural protections. Counsel for R. C., therefore, argues that these codified enhanced procedural protections should be interpreted such that police be required to allow young person to contact counsel and/or parent or guardian prior to embarking on strip search. [38] Section 3(1)(b)(iii) of the YCJA indicates that the criminal justice system for young persons must be separate from that of adults and emphasize, among other things, enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected. This is general guiding principle intended to ensure that young persons, given their age and level of maturity, are treated fairly by the criminal justice system and that their rights (afforded to them under the law) are respected. It does not, in my view, confer upon them greater rights or privileges than those afforded to adults. Had this been the intention of Parliament, surely it would have been clearly stated as such. [39] One can see, from review of the provisions of the YCJA, that there are, in fact instances when privacy interests of youth are to be afforded given greater protection than those of adults. For example Part of the YCJA, related to the protection of privacy of young persons in relation to publication, records and information, mandates that disclosure and publication of certain information pertaining to young persons occur only within certain parameters. As well there are provisions in the legislation pertaining to the admissibility of statements given by young persons to persons in authority, whereby certain procedural protections must be afforded to young persons. [40] There is nothing in the YCJA or the common law however that requires that young persons be afforded an opportunity to consult counsel and/or parent or guardian prior to police strip search. The police must, however, comply with the law as it relates to strip searches, and find they have done so here. The strip search was lawful and there was no breach of Section 8 of the Charter. APPLICATION OF SECTION 24(2) OF THE CHARTER [41] In the event there was a breach of R. C.’s section 8 rights to be free from unreasonable search and seizure this is not a case in which the evidence should be excluded. [42] The burden is on the Applicant, the defence, to establish, on balance of probabilities, that the admission of evidence would bring the administration of justice into disrepute. We are familiar with the Supreme Court of Canada’s pronouncements in v. Collins, 1987 CanLII 84 (SCC), [1987] S.C.R. 265 as to the list of factors to consider in determining whether the admission of evidence would bring the administration of justice into disrepute. The non-exhaustive list of factors have commonly been grouped into three categories: 1. those affecting the fairness of the trial; 2. those relevant to the seriousness of the Charter breach; and 3. those related to the effect of excluding the evidence. Fairness of the trial [43] The evidence sought to be excluded is 17.8 grams of crack cocaine. It is real, non-conscripted evidence which existed irrespective on any Charter breach. Admission of evidence of this type will, according to the Supreme Court of Canada in R. v. Stillman, [1997] S.C.J. 34 at paras. 74-75, rarely render trial unfair. The Applicant has not satisfied me that the admission of the drugs located on the person of R.C. would render the trial unfair. Seriousness of the breach [44] In considering the seriousness of the breach, once again we apply the framework established by the Supreme Court of Canada in Collins, supra: 1. Was the breach committed in good faith or by inadvertence, was it was technical in nature or was it was deliberate, wilful or flagrant?; 2. Was the breach motivated by the urgency of the situation or by the necessity to prevent the loss or destruction of evidence?; 3. Was the search obtrusive and what was the individual’s expectation of privacy in the area searched? [45] find that the officers reasonably believed that they had both the legal authority and the necessity to conduct the strip search. R. C. had been properly arrested for possession of stolen motor vehicle which had arrived at pre-destined location for the purpose of completing drug transaction arranged by Mr. Tufts. Mr. Tufts was known by police to be involved in the drug world and to be drug user. R. C. was known to have had prior drug conviction. Constable Withrow was also aware of intelligence reports that indicated that R. C. lived in and was associated with areas where the drug trade occurred. The decision to strip search was neither flagrant nor arbitrary. [46] The search was motivated by a degree of urgency and by the necessity to prevent the loss or destruction of drugs. Crack cocaine can be concealed easily and is not readily discoverable by ‘pat-down’ search. There was concern not only about the loss or destruction of drugs but also about the potential that they could be ingested or disseminated within custody population at the detention center or at the courthouse. [47] All strip searches, by their very nature, are intrusive. I agree however, that here, significant efforts were made to respect the privacy and personal integrity of the young person. Though it can not be said that R. C. was willing participant to the strip search, he reluctantly agreed to the search despite the refusal to his request to call counsel or his grandmother. As indicated earlier, find that neither officer touched R. C., that at no time was R. C. totally undressed and that R. C. removed the drugs from his underwear himself. All of the guidelines set out in Golden, supra, were followed except for detailed written records being kept. But again, as indicated above, find that nothing of consequence turns on this as the search was minimally intrusive, even by R. C.’s account. [48] To exclude the evidence, in my view, would call into question the very reputation of the administration of justice. Possession of crack cocaine for the purpose of trafficking is very serious criminal offence and poses very real danger to the community. We are all too familiar with the harmful social consequences of cocaine trafficking. We need look no further than the facts of this case where an innocent third party’s motor vehicle was stolen and probably pledged or traded for quantity of the drug. The drugs seized from the person of R. C. do represent the essence of the offence itself. Their exclusion would end the prosecution and that would surely call into question the reputation of the administration of justice. Therefore, in the event of a Charter breach, the evidence would nonetheless be ruled admissible. Order Accordingly Pamela S. Williams Judge of Youth Justice Court

A youth was arrested and charged with possession of a stolen motor vehicle after the vehicle arrived near the location of a pre-arranged drug transaction. The youth was later charged with possession for the purposes of trafficking after a strip search conducted at the police station resulted in a quantity of crack cocaine being removed from his underwear. A voir dire was held to determine the lawfulness of the strip search and the admissibility of the cocaine seized. The evidence is admissible; there was no breach of s. 8 of the Charter and, in the event that there had been a breach of s.8, the admission of the evidence would not bring the administration of justice into disrepute. The strip search was incident to arrest and conducted in a reasonable manner, being reasonably quick and non-invasive. There is nothing in the Youth Criminal Justice Act or the common law which requires that young persons be afforded the opportunity to consult with counsel or a parent or guardian prior to a search. This was real evidence, the admission of which would not affect trial fairness; any breach was conducted in good faith; the search was motivated by a sense of urgency; and significant efforts were made to respect the privacy and personal integrity of the young person.

5_2008nspc12.txt

nan Date: 02/01/24 Docket: S.H. No. 173663 IN THE SUPREME COURT OF NOVA SCOTIA [Cite as: Shooters Sports Inc. v. Municipality of East Hants, 2002 NSSC 020] BETWEEN: SHOOTERS SPORTS INC., body corporate and MUNICIPALITY OF EAST HANTS, body corporate nan HEARD BEFORE: The Honourable Justice David W. Gruchy, in chambers PLACE HEARD: Halifax, Nova Scotia DATE HEARD: December 19, 2001 DECISION: January 24, 2002 COUNSEL: Robert Belliveau, Q.C. and Robert Currie for the applicant Anne-Marie MacDougall for the respondent GRUCHY, J.: [1] This is an application for an order to declare that the Land Use By-law of the respondent permits the operation of a licensed billiard club open to the public at 192 Highway #2, Enfield, Nova Scotia. [2] In December, 1995, the applicant commenced the process whereby it eventually established private pool hall licensed to sell alcoholic beverages at the above location. The area in which the pool hall is located is within an area of the respondent known as the Village of Enfield and which is subject to the respondent's Land Use By-laws. [3] The premises is located is in land use zone known as "Core Village". The applicant has operated the billiard club since June, 1997 and has had "special premises liquor license" granted by the Alcohol and Gaming Authority of the Province of Nova Scotia. That license has allowed the sale of liquor, subject to certain restrictions including the following: 4. This license is for the use of members of the club only and not the general public. 5. No advertising of the availability of liquor service shall be permitted. 6. Access to the club shall only be obtained by way of card/key system. 7. member can only sign in two (2) guests at any one time. 9. book must be maintained in manner suitable to the Board in which the name of members entering the club on specific date is recorded along with any guests of the member. 10. No entertainment permit shall be issued in respect of this license. 15. The maximum days and hours of operation are as follows: Monday to Saturday 10:00 a.m.- 1:00 a.m. Sunday 12:00 noon 1:00 a.m. [4] On July 17, 2000 the respondent amended its Land Use By-laws whereby the permitted uses in Village Core (C6) Zone were set forth as follows: 8.7.1 PERMITTED USES No development permit shall be issued in the Village Core (C6) Zone except for one or more of the following uses. Lawfully existing uses nan Retail trade establishments as follows: furniture and home furnishings stores, electronics and appliances, building material and supplies dealers, nursery and garden centres, food and beverage stores, health and personal care stores, clothing and clothing accessories, sporting goods, hobby, book and music stores, and miscellaneous store retailers (with the exception of manufactured home dealers) nan Accommodation and food services as follows: bed and breakfasts, full-service restaurants **, limited service eating places (with the exception of drive-through restaurants), and special food services ** Taverns, night clubs, bars, lounges, and pubs will be considered by development agreement only. [5] According to the affidavit of Albert Walker, the president of the applicant, the premises was operated within the restrictions imposed by the Alcohol and Gaming Authority as club. It consisted of pool tables, as well as full-bar service and various snacks which could be purchased at the bar. It is common ground that this operation was conforming use of the Land Use By-law as it then existed. [6] In October, 2000, Mr. Walker says, he made the decision to build kitchen facilities for the club and received development permit from the respondent on December 4, 2000, pursuant to which kitchen was constructed and completed in May, 2001. He then decided, as well, to change the liquor license from that of "special premises liquor license" to "restaurant and lounge license". As he was familiar with the Nova Scotia Alcohol and Gaming Authority practices and its requirement that he should supply confirmation from the municipality that the proposed license would be in conformity with the Land Use By-law he requested of the respondent letter to that effect. He did not apply for development permit. [7] The respondent, by its development officers, replied in various correspondence, in effect, that a development agreement would be required as, apparently, they considered such a change to be a change of use. Mr. Grant C. Bain, the Director of Planning and Development of the respondent in letter dated July 20, 2001 to the applicant said: At this time, am confirming that the decision of the Development Officer, Ian Young constitutes the position of the Municipality on this issue. Our interpretation of the Land Use By-law is that, although both the existing use and proposed use are defined as drinking establishments, different types of licensed premises are defined separately based on the type of license they require. For example, club is defined differently than lounge. For reference, am attaching copy of definition #69 from the Municipality's Land Use By-law. Staff consider that the proposal for lounge on this property would be change in use, and would therefore be subject to development agreement. To add some explanation to the requirement for development agreement, it is felt that establishments which have certain types of liquor licenses have the potential to significantly impact the use and enjoyment of adjacent of [sic] nearby properties. development agreement is able to contain terms and conditions to mitigate, or at least minimize these impacts. In reference to the Shooters establishment, the changeover from the existing use to lounge would potentially create issues which don't already exist, or worsen issues which do. For example, having lounge license would permit Shooters to open their doors to the public rather than being restricted to private membership, hours of operation could be as late as 2:00 a.m. rather than the present 1:00 a.m., and it is possible that live entertainment would be permitted under lounge license. These issues present potential problems regarding additional traffic, noise and other off-site impacts, which are best addressed through development agreement. [8] The definitions to which Mr. Bain referred in his correspondence to the applicant included definitions of "club" and "lounge" as follows: 69. Licensed Premises means any premises for which license has been issued by the Nova Scotia Liquor License Board and is in effect in accordance with the Liquor License Board Regulations made under Section 50 of the Liquor Control Act, R.S.N.S., 1989, c.260. Licensed Premises include: c. Club means company or association that is operated solely for the objects of national, social, patriotic, political, or athletic nature, or the like, but not for pecuniary gain, which is also Licensed Premises serving liquor in accordance with Section 43 of the Liquor License Board Regulations as amended up to and including O.I.C. 92-908, N.S. Reg. 196/92, dated Sept. 8, 1992. Liquor may be sold 10:00 a.m. to 1:00 a.m. the next morning. d. Lounge means Licensed Premises which serves beer, wine, and spirits in accordance with Section 31 of the Liquor License Board Regulations as amended up to and including O.I.C. 92-908, N.S. Reg. 196/92, dated Sept. 8, 1992. Liquor may be sold Monday to Saturday 11:00 a.m. to 2:00 a.m. the next morning and Sunday 12:00 p.m. to 2:00 a.m. the next morning, unless an individual license specifies otherwise. [9] The respondent's position with respect to this application is set forth in para. 15. of the affidavit of Ian Young the Development Officer of the Municipality of East Hants as follows: 15. THAT the present use of the Shooters property as private pool hall with special premises liquor license is permitted use in C6 zone. The present use is therefore not non-conforming use. If Shooters is to operate as "lounge" or as billiards club, open to the public, with liquor license, it will require lounge license. development agreement would therefore be required as that is new use, and one that is significantly different from its former use as private pool hall. [10] That position sets forth the crux of the question now before me. That is, will the change of the liquor license sought by the applicant constitute a change in use requiring a development permit? [11] The Municipality's position taken before me is firstly that the applicant has not complied with the Municipal Government Act, S.N.S. 1998, c.18. That is, the applicant ought to have applied for development permit and then, if it was refused, that refusal should have been appealed to the Nova Scotia Utility and Review Board. The applicant, however, has taken the position that it is not proposing "development" within the meaning of the by-law and accordingly, no application for development permit was necessary. [12] The respondent has also brought to my attention other definitions of the By-law as follows: 13. Billiard/Snooker Club means private commercial establishment for the primary purpose of playing pool, and/or billiards, and/or snooker and requiring membership/registration as Joint Stock Company. 33. Development means any erection, construction, alteration, demolition, replacement, relocation, or addition to any structure, and any change or alteration in the use of land or structures. 34. Development Permit means permit, other than building permit, issued by the Development Officer which indicates that proposed development complies with the provisions of the Land Use By-law. 35. Drinking Establishment means an establishment, licensed by the Nova Scotia Liquor Licensing Board, in which alcoholic beverages are served for consumption on the premises, and any preparation or serving of food is accessory thereto, and includes licensed lounge that is ancillary to restaurant. Drinking establishment includes tavern, lounge, and/or cabaret. [13] The applicant's position is that in these circumstances there is no appeal to the Utility and Review Board. It says that its proposal is not "development" within the meaning of that word as defined by the By-law; nor is it development within the meaning of that word as defined by the Municipal Government Act which is as follows: Interpretation 191 In this Part and Part IX, unless the context otherwise requires nan (c) "development" includes the erection, construction, alteration, placement, location, replacement or relocation of, or addition to, structure and change or alteration in the use made of land or structures; The applicant says that it has not proposed development as it has not proposed any change or alteration in the use made of its property within these definitions. [14] Appeals to the Utility and Review Board are governed by ss.247 and 250 of the Municipal Government Act, the relevant portions of which read: Appeals to the Board 247(3) The refusal by development officer to (a) issue development permit; (b) approve tentative or final plan of subdivision, may be appealed by the applicant to the Board. 1998, c.18, s.247. nan Restrictions on appeals 250 (1) An aggrieved person or an applicant may only appeal (a) an amendment or refusal to amend land-use by-law, on the grounds that the decision of the council does not reasonably carry out the intent of the municipal planning strategy; (b) the approval or refusal of development agreement or the approval of an amendment to development agreement, on the grounds that the decision of the council does not reasonably carry out the intent of the municipal planning strategy; (c) the refusal of an amendment to development agreement, on the grounds that the decision of the council does not reasonably carry out the intent of the municipal planning strategy and the intent of the development agreement. (2) An applicant may only appeal refusal to issue development permit on the grounds that the decision of the development officer does not comply with the land-use by-law, development agreement, an order establishing an interim planning area or an order regulating or prohibiting development in an interim planning area. [15] The applicant says there is no "decision" of development officer which may be appealed to the Board. agree with that position. It is apparent from the development officers' correspondence that they decided the proposal of the applicant will constitute "change in use" and accordingly the applicant must proceed to attempt to obtain development agreement. But it is clear, in my opinion, that if the proposal does not constitute "change in use" then no application for development permit is necessary and the development agreement process is not applicable. [16] It is clear that initially, the development officers considered the present use of the subject property as licensed billiard club to be non-conforming use. The respondent, correctly in my view, has resiled from that position and now states that the present use is conforming use. It is therefore unnecessary to consider the ramifications or results of possible change of non-conforming use. [17] The essential issue for consideration is whether the change proposed by the applicant is "change in use". The word "use" is not defined in either the By-law or the Municipal Government Act. It has, however, been the subject of judicial and academic discussion. Rogers, Canadian Law of Planning and Zoning (Toronto: Carswell), at p.210.26 said: The question is what constitutes "use". It means holding or occupying property or the employment of property for enjoyment, revenue or profit without in any way diminishing or impairing the property itself. [18] Further, at p.210.20(4) while addressing the matter of non-conforming uses, Rogers set forth the underlying policy for the protection of existing uses and said: The basis for legislative protection of existing contravening uses is preservation of property rights and the reluctance to forfeit them without compensation. The natural justice concept prevents the violation of such rights and permits an owner to retain the value which he or his predecessor in title created in his property at time when the law permitted him to do so. The community has an interest in the continuation of such value notwithstanding that the property it protects would not be considered desirable development of such land in the light of good planning principles, although it is not necessarily detrimental to the rest of the conforming community. While the above comment was made in reference to non-conforming uses, it seems to me to have application as well to conforming uses. [19] In Regina v. Grandview Holdings Co. Ltd. (1965), 1965 CanLII 580 (BC SC), 53 D.L.R. (2d) 276 (B.C. Co. Ct.) Macdonald, J. of the B.C. County Court stated at p. 278: The word "use" in the context of the definition of development contained in the Vancouver Charter simply means employment or application for some purpose. There is change in use when one purpose of the employment or application is abandoned and another purpose substituted for it. [20] The applicant's present establishment falls within the definition of "drinking establishment" as that term is defined in the By-law, set forth above. That is the "purpose" of the business. The various subcategories of defined drinking establishments all fall within that primary definition. The change proposed by the applicant will only have the effect of moving the applicant's use from one subcategory of drinking establishment to another. The premises as it currently exists constitutes an establishment wherein liquor and food are served in conjunction with the operation of the pool hall. The proposed change will have the effect of making it publicly accessible and with certain changes in the closing hours. [21] My learned colleague Justice Davison considered the matter of "change of use" in Dartmouth (City) v. Ramia (1990), 1990 CanLII 4115 (NS SC), 99 N.S.R. (2d) 50 (S.C.T.D.) when he considered whether change from grocery store to an establishment which could additionally sell pizzas and donairs constituted change of use. He said at p.54: [17] Has there been change in use? The premises has been neighbourhood grocery store for decades. The character of grocery stores has changed considerably over the years to the point where many grocery stores are referred to as "convenience stores". Undoubtedly, the emergence and growth of major food chains have contributed to the change in the smaller neighbourhood stores. [18] Corner stores are now selling multitude of wares which have no resemblance to food e.g. video tapes and magazines. It cannot be said that the addition of these new products amount to change in use. [19] The city takes the position that the delivery of the products to homes and the preparing of food on the premises are the factors which indicate "change in use". In years gone by delivery of groceries from small stores to private homes was commonplace. [20] The burden is on the city to prove change in use. The development officer said there was change in use. The building inspector said there was not change in use. [22] Use of premises as restaurant is distinct change from use of premises as store. But at what point between the two extremes can it be said that the use of the premises has changed? restaurant which sells bakery products does not change its use anymore than the use of premises as store changes because sandwiches are prepared and sold on the premises. It is question of fact as to when the character of the property changes to the extent it can be said there has been change in use. am not prepared on the evidence before me to find there has been change in use. Justice Davison's decision was affirmed by the Nova Scotia Court of Appeal (1991), 1991 CanLII 2549 (NS CA), 107 N.S.R. (2d) 170. [22] In Campbellton (City) v. Thompson et al. (1994), 1994 CanLII 6518 (NB CA), 151 N.B.R. (2d) (N.B. C.A.), the New Brunswick Court of Appeal considered whether there was "change of use" where the change consisted of the introduction of new process in rock quarry so that new or different grades of crushed rock would be produced. Chief Justice Hoyt addressed the matter of "whether the essential general use of the lands has been changed". [10] Using that test, cannot say that it has. The essential general use of the quarry will not change. The quarry will continue to produce sized rock. Nothing is being added to the rock to change its character or quality. new technique is being used, but the use of the land is not changed. If, as the judge predicted, there is more noise, dust, traffic and machinery on or from the site as result of the crusher's use, other remedies may be available. We have here, however, zoning case, not one in nuisance. [11] In sense, such determination results in generous, as opposed to narrow, interpretation of quarry's use. [23] Very recently (December 5, 2001) in Saint-Romuald (City) v. Olivier (2001), 2001 SCC 57 (CanLII), 204 D.L.R. (4th) 284 (S.C.C.) the Supreme Court of Canada considered the matter of changes of use from non-conforming use to another non-conforming use. While the instant case does not fall squarely within the parameters of that consideration, the majority opinion enunciated by Binnie, J. gives me very helpful guidance. The establishment there considered by the court was nightclub which had featured as entertainment country and western music. It had changed that entertainment to nude dancing. The question therefore arose as to whether such change amounted to change in use. While the case involved, to certain extent, consideration of the civil law doctrine of "acquired rights" by legal non-conforming uses (a concept embraced by judicial interpretation in the common law provinces City of Toronto v. Wheeler (1912), 1912 CanLII 513 (ON SC), D.L.R. 352 (Ont. H.C.)) Mr. Justice Binnie's consideration of the law with respect to change of use must be considered. He recognized the tension and interplay between the role of zoning and the protection of private property rights. He emphasized that planning law is not substitute for the common law of nuisance. (In the instant case also point out that in addition to the law of nuisance the Nova Scotia Alcohol and Gaming Authority has authority to intervene for the protection of neighbouring property owner's rights). Mr. Justice Binnie said at paras. [11] The objection to more sophisticated land use controls, when they emerged as an instrument of good government, was that they were to some extent confiscatory of the owner's rights: see Dinnick v. McCallum (1913), 28 O.L.R. 52 at p.58, 11 D.L.R. 509 (C.A.); Regina Auto Court v. Regina (City) (1958), 1958 CanLII 164 (SK QB), 25 W.W.R. 167 (Sask. Q.B.) at pp. 168-69; and Canadian Occidental Petroleum Ltd. v. North Vancouver (District) (1983), 1983 CanLII 539 (BC SC), 148 D.L.R. (3d) 255 (B.C.S.C.) at p.269. [12] To counter the concern about confiscation without compensation, lawful existing uses came to be protected under the concept of "acquired rights" both under the Civil code in Quebec, and by judicial interpretation in the common law provinces: Toronto (City) v. Wheeler (1912), 1912 CanLII 513 (ON SC), D.L.R. 352 (Ont. H.C.), per Middleton J., at p.353: ... it is, think, sound principle that the Legislature could not have contemplated an interference with vested rights, unless the language used clearly required some other construction to be given to the enactment. See also R. v. Howard (1884), O.R. 377 (Q.B.) at p. 381; and R. v. Clark Bros. Hughes Ltd., 1924 CanLII 476 (MB CA), [1925] D.L.R. 49 (Man. C.A.) at pp.51 and 53. [13] It is against that background that the modern regime of land use controls, with their inherent tension between the owner's interest in putting its own property to what it regards as the optimal use and the municipality's interest in having all of the land within its boundaries organized in plan which it thinks will maximize the benefits and amenities for all inhabitants, should be interpreted. [24] Justice Binnie recognized that permitted uses (or legal non-conforming uses) should be interpreted with flexibility so as to accommodate "the real and reasonable expectations" of the landowner, brought about by "normal evolution". That is, the intensity of the legal use may be increased so as to "adapt to the demands of the market or the technology that are relevant to it". [25] Mr. Justice Binnie made it clear that acquired rights or the common law equivalent of those rights relate only to the status quo. He said, in reference to the dissenting opinion of Mr. Justice Gonthier, at para. [4] The facts and applicable enactments are outlined in my colleague's reasons for judgment. fully agree with his rejection of the "categorical" approach. This is the theory under which an owner, whose use of land does not conform to new by-law, nevertheless has an "acquired right" to expand, alter or modify an existing use to include anything and everything permitted on that land under the "use category" defined in the prior law (if indeed there was prior law). ... ... the "categorical" approach is wrong in principle and will often deliver result that unduly favours individual landowners at the expense of the community interest. The protected "acquired right" properly relates only to the status quo. It does not protect potential or contemplated use that has never materialized. similar rule prevails in the common law provinces: see Heutinck v. Oakland (Township) (1997), 1997 CanLII 1284 (ON CA), 42 M.P.L.R. (2d) 258 (Ont. C.A.) ... [26] The phrase "status quo" relates to the use or physical activity to which the property in question is put. [27] Mr. Justice Binnie addressed the intensity and type of use of the premises in question. He was able to examine retrospectively the effect the change of entertainment had on the premises and on the neighbourhood. In my consideration herein, intensity may only be considered prospectively as have no evidence before me on that subject. [28] With respect to type of use Mr. Justice Binnie said at p.297: B. Type of Use [29] The appellant argues that nightclub offering western music is different type of use than nightclub presenting nude dancers. This is the real battleground between the appellant and the respondents. [30] "use" may include number of activities. nightclub, as stated, serves food and drink and provides entertainment. The question here is how many of these activities, and of what nature, can be added, subtracted or modified before it can no longer be called the same "type" of use? [29] Mr. Justice Binnie then examined the cases of R. ex rel.. Skimmings v. Cappy and Smith (1952), 1952 CanLII 280 (ON CA), 103 C.C.C. 25 (Ont. C.A.); R. v. Kelly Landscape Contractors Ltd. (1980), 13 M.P.L.R. 67(Ont. Co. Ct.); Campbellton (City) v. Thompson (1994), 1994 CanLII 6518 (NB CA), 151 N.B.R. (2d) (C.A.) and Lordon v. Pitman (1980), 33 N.B.R. (2d) 23. He then concluded at para. [34] In my view, both remoteness and neighbourhood effects have role to play in the proper disposition of this type of case. Each contributes to what Gonthier J. refers to as the real and natural expectation of the landowner. The Court's objective is to maintain fair balance between the individual landowner's interest and the community's interest. The landowner overreaches itself if (i) the scale or intensity of the activity can be said to bring about change in the type of use, as mentioned above; or if (ii) the addition of new activities or the modification of old activities (albeit within the same general land use purpose) is seen by the Court as too remote from the earlier activities to be entitled to protection; or if (iii) the new or modified activities can be shown to create undue additional or aggravated problems for the municipality, the local authorities, or the neighbours, as compared with what went before. The factors are balanced against one another. ... Mr. Justice Binnie continued at para.[35]: nan It stands to reason that in attempting to accommodate the landowner's real and natural expectation of the continuation of the status quo, and to properly maintain the balance between the interests of the landowner and the community, the Court should also have these "neighbourhood effects" in mind in considering the situation of landowner who has somewhat modified or extended pre-existing activities within the same general use category. The adverse impact of neighbourhood effects generated by added or modified activities constitutes one of the guiding principles under the somewhat different regulatory systems in Britain ... In those jurisdictions, as in Canada, planning is concerned not only with the physical use of land but also with any adverse effects of such uses on the surrounding area. It is appropriate to carry that concern forward into the Court's consideration of added, altered or modified activities which are claimed to be protected by the prior existing use. [30] While Mr. Justice Binnie was dealing with the question of prior existing use of non-conforming nature, his observations appear to have equal application to the rights of property owner acquired by virtue of conforming use. [31] Mr. Justice Binnie then set forth summary of his approach as follows: C. Summary of Approach [39] therefore approach the issue of limitations on the respondents' acquired rights as follows: 1. It is firstly necessary to characterize the purpose of the pre-existing use ((Central Jewish Institute, supra). The purpose for which the premises were used (i.e. "the use) is function of the activities actually carried on at the site prior to the new by-law restrictions. 2. Where the current use is merely an intensification of the pre-existing activity, it will rarely be open to objection. However, where the intensification is such as to go beyond matter of degree and constitutes, in terms of community impact, difference in kind (as in the hypothetical case of the pig farm discussed above), the protection may be lost. 3. To the extent landowner expands its activities beyond those it engaged in before (as where custom picture-framing shop attempted to add landscaping business in Nepean (City) v. D'Angelo (1998), 49 M.P.L.R. (2d) 243 (Ont. Ct. (Gen. Div.)), the added activities may be held to be too remote from the earlier activities to be protected under the non-conforming use. In such case, the added activities are simply outside any fair definition of the pre-existing use and it is unnecessary to evaluate "neighbourhood effects". 4. To the extent activities are added, altered or modified within the scope of the original purpose (i.e. activities that are ancillary to, or closely related to, the pre-existing activities), the Court has to balance the landowner's interest against the community interest, taking into account the nature of the pre-existing use (e.g., the degree to which it clashes with surrounding land uses), the degree of remoteness (the closer to the original activity, the more unassailable the acquired right) and the new or aggravated neighbourhood effects (e.g., the addition of rock crusher in residential neighbourhood is likely to be more disruptive than the addition of fax machine). The greater the disruption, the more tightly drawn will be the definition of the pre-existing use or acquired right. This approach does not rob the landowner of an entitlement. By definition, the limitation applies only to added, altered or modified activities. 5. Neighbourhood effects, unless obvious, should not be assumed but should be established by evidence if they are to be relied upon. 6. The resulting characterization of the acquired right (or legal non-conforming use) should not be so general as to liberate the owner from the constraints of what he actually did, and not be so narrow as to rob him of some flexibility in the reasonable evolution of prior activities. The degree of this flexibility may vary with the type of use. Here, for example, the pre-existing use is nightclub business which in its nature requires renewal and change. That change, within reasonable limits, should be accommodated. 7. While the definition of the acquired right will always have an element of subjective judgment, the criteria mentioned above constitute an attempt to ground the Court's decision in the objective facts. The outcome of the characterization analysis should not turn on personal value judgments, such as whether nude dancing is more or less deplorable than cowboy singing. am unable, with respect, to accept as legally relevant my colleague's observation that "[w]hereas erotic entertainment seeks to sexually arouse the audience by the stripping and suggestive behaviour engaged in by the performers, country and western shows seek to entertain by providing showcase for the special talents of singers, musicians or dancers" (para.76). Serious music is also commonly thought to arouse the passions profoundly, but in terms of acquired rights, music stores should not be differentiated by whether they offer Muzak or Mozart. [32] will therefore now approach the issues before me in the same fashion. 1. It is apparent that the purpose of the use to which the premises were put included the sale of liquor and food, together with the entertainment of billiards or pool. Those are the functions of the activities actually carried on at the site to the present time. 2. There is no evidence before me that the alteration of use will amount to an intensification of the activity but even if such were the case, Mr. Justice Binnie said that it will rarely be open to objection. The degree of intensification of activity cannot now be determined. 3. am unable to conclude that the categorization of type of liquor license will result in activities remote from those now enjoyed. The most obvious effect of the change of liquor license will merely be that the premises will be open to the public. There may be changes in hours and changes in entertainment, but those matters more appropriately fall within the jurisdiction of the Alcohol and Gaming Authority. 4. It is necessary to balance the interests of the applicants "... against the community's interest, taking into account the nature of the pre-existing use (e.g., the degree to which it clashes with surrounding land uses), the degree of remoteness (the closer to the original activity, the more unassailable the acquired right) and the new or aggravated neighbourhood effects (e.g. the addition of rock crusher in residential neighbourhood is likely to be more disruptive than the addition of fax machine). As there are no "... added, altered or modified activities ..." under consideration which are inconsistent with the present conforming use the balance is clearly in the favour of the applicant. 5. The respondent has submitted that there will be adverse neighbourhood effects. There is no evidence before me to lead logically to that conclusion. As Justice Binnie has said, such effects should not be assumed and in this case have not been established. 6. The amendment of the category of liquor license will not have the effect of liberating the applicant from the constraints of activities now carried out. It appears to me that the amendment of the category of liquor license is "reasonable evolution of prior activities". "That change, within reasonable limits should be accommodated". 7. Mr. Justice Binnie said that there will be an element of subjective judgment in considering the criteria mentioned above but should not turn on personal value judgments. The court should attempt to ground its decision on objective facts. Unlike the case before the Supreme Court of Canada where the irrelevant personal value judgment dealt with whether nude dancing is more or less deplorable than cowboy singing, the case before me might entail the irrelevant subjective comparison of one type of liquor license as against another much less contentious subject. CONCLUSION: [33] In my view, the change of liquor license sought by the applicant will not constitute a change of use from that presently enjoyed by the applicant. Subject to the regulations of the Nova Scotia Liquor Control Board, the applicant is permitted to operate a licensed billiard club open to the public at 192 Highway #2, Enfield, Nova Scotia. [34] will receive written submissions from the parties with respect to the matter of costs.

The applicant operated commercial private billiards club with liquor licence and served bar food. The applicant applied to amend the liquor licence to another category to allow public access and slightly longer hours of operation. The Municipality refused to issue a letter to the effect that the premises were properly zoned for that purpose, arguing that the proposal would result in a change in use requiring a development agreement. The applicant applied for an order declaring that the land use by-law permitted the proposed use. Application granted; the proposal did not constitute a change in use as the essential use of the premises was the sale of liquor and food in a pool hall and that would not change. There was no evidence that the proposal would result in a nuisance or increased traffic, neither of which could be presumed.

e_2002nssc20.txt

J. 1993 S.H. No. 93-1299 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: CANADA TRUSTCO MORTGAGE COMPANY, body corporate and THE CO-OPERATORS GENERAL INSURANCE COMPANY, body corporate DEFENDANT HEARD: At Halifax, Nova Scotia, on February 12th 13th, A.D. 1996 BEFORE: The Honourable Justice Charles E. Haliburton SUBJECT: Fire Insurance, Householder, Overlapping Coverage, Standard Mortgage Endorsement, Fraud or Misrepresentation by Mortgagee DECISION: The 12th day of September, A.D. 1996 COUNSEL: W. Dale Dunlop, Esq., for the Plaintiff Clarence A. Beckett, Q.C., Esq., for the Defendant DECISION HALIBURTON, J. This action involves contest between two insurance companies. It results from the loss by fire of residence owned by Michael and Diane Brown which was subject to mortgage in favour of Canada Trustco Mortgage Company. At the time of the fire loss, there were in place two policies of insurance for the purpose of indemnifying Canada Trustco. In advancing their claim against one insured, Canada Trustco failed to disclose the existence of the second policy. One policy had been placed by the Owners/Mortgagors, Mr. and Mrs. Brown, and protected both their interests and the interests of the Mortgagee. This policy was placed with The Co‑operators General Insurance Company. The second policy was placed by Canada Trustco to protect its own interests as Mortgagee and was put in place as result of notice that the Co-op policy was being cancelled by Co‑op. This latter policy was placed with Marsh McLennan and is subscription policy. Under the terms of the arrangement between Canada Trustco and Marsh McLennan, coverage was put in place on the basis of notice from the mortgage company. Perhaps the best overview of the facts was produced by Dave Fiander, Mortgage Officer in Dartmouth for Canada Trustco, in his memo of November 10th, 1992, which was directed to his immediate superior in Dartmouth and the Regional Manager. It read: We have commenced foreclosure proceedings against the above noted mtg. It's very unusual situation, would appreciate your input in regards to whether we should obtain solicitor to handle. Here's the story. The property had been vacant since June of 92, as it was listed for sale. Mr. and Mrs. Brown are separated he has been charged for attempted murder. discussed with Mrs. Brown Sept. 17th regarding the possibility of foreclosure. She advised she did not have the resources to pay. Arrangements were made to inspect the property Sept. 18th. viewed on Sept. 18th, and contacted Mrs. Brown that day and advised foreclosure proceedings would be started immediately. She was very upset. Mrs. Brown advised her homeowners insurance would be expiring on Sept. 20th, and she did not have cash to renew. made arrangements with RMAO to place insurance on the property effective immediately Sept. 18th. received call that Saturday Sept. 19th advising the property had been destroyed in fire. The Cooperators, who carry the insurance on our property are in the process of investigating the fire. They suspect arson. spoke with gentleman from the Insurance Crime Bureau last week and he advised we probably will be paid, however it could be long process. That's where we stand as of today.. questions/concerns Do we retain solicitor to act on our behalf? Does our insurance company have any responsibility if the Cooperators do not pay? feel we should retain lawyer to act on our behalf. What are your feelings? The Document Brochure, Volume 2, TAB 22, discloses that Marsh McLennan were advised of the loss on November 9th just before the above memo was written. No claim, however, was made against their policy until much later. By an internal memo, Jim Freeman, Regional Mortgage Manager, gave instructions that foreclosure action should be commenced. His message is dated 11th of February, 1993. The position/understanding of the staff of Canada Trustco as of that time is reflected in another internal memo initiated by Nancy During, Collections Officer, which contains the following comments (TAB 40): We placed ins. thru Marsh and McLennan. The next day the house burnt down and the next day Mr. Browns ins. expired. We should be paid out by Mr. Brown's ins. co. as policy was in force, however, they are now saying the policy will not be honoured as Mr. Brown had not paid previous premium with another insurance company and Canada Trust was aware of this. Even though Mr. Brown had paid their premium, they are still not going to cover the claim. We have referred the file to our solicitor Kevin Quigley who will initiate foreclosure action to sell the land. We will then apply proceeds of sale to mortgage and sue the insurance company for the balance... AGREED FACTS The parties have submitted Statement of Agreed Facts to the Court which may be summarized as follows: The insured property was private family dwelling located at Lake Echo. It was relatively isolated on dirt road, one kilometre from any other dwellings. It was destroyed by fire at 2:30 a.m., September 19th, 1992. Fire Marshal's investigation determined that it was "incendiary" in nature. (A popular phrase in many cases would term it "fire of suspicious origin".) The property had been mortgaged to Canada Trustco Mortgage Company, the Plaintiff, by Diane and Michael Anthony Brown. At some earlier time, the Browns had apparently separated and Mrs. Brown, (alternatively referred to as Diane Jamieson), assumed ownership and responsibility for the mortgage. Diane Jamieson obviously had some financial difficulties. Mortgage payments were overdue and as of September 19th, she was at least two months in arrears. As of November 30th, it is agreed that the total amount owing on the mortgage, including arrears, was $101,895.76. On January 7th, 1992, Notice of Cancellation was given to Ms. Jamieson by Royal Insurance, her then insurers, for non-payment of the insurance premium. Effective March 9th, she obtained Co-operators Home-Guard insurance policy, policy no. 4125986, insuring the premises in the total amount of $200,000. It contained standard mortgage clause as approved by the Insurance Bureau of Canada for the protection of the Mortgagee, Canada Trustco. As result of two claims filed with the insurers claiming vandalism damage, the property was visited by both an adjuster and sales representative of Co-op. They found the property to be vacant, isolated, that the power had been shut off for non-payment of the electricity bill, and decision was taken to cancel the policy. On the afternoon of September 15th/16th, Notice of Cancellation was delivered to Ms. Jamieson and to Canada Trustco. It is agreed that the termination of coverage would have been effective at 12:01 a.m. September 20th, 1992. The insured property was totally destroyed by fire some 22 hours before that deadline. On September 17th, David Fiander, Mortgage Officer for the Plaintiff, also visited the premises. He spoke with Diane Jamieson, noted that the premises were vacant, learned that Notice of Cancellation had been delivered with respect to the insurance coverage, and made decision to foreclose. On September 18th, he requested Angela Paddock, clerk in the Canada Trustco Collections Department, to obtain alternate insurance coverage which she did. Under subscription policy administered by Marsh McLennan (M M), the insurers were notified to place coverage on house appraised at $150,000 effective September 18th. The "value" of the property was factor in fixing the premium charged. This subscription policy no. MMF/1023 contains standard mortgage endorsement clause as approved by the Insurance Bureau of Canada and is identical to the standard mortgage clause contained in the Co-operators Home-Guard policy. Subject, then, to the terms of the insurance policies themselves, there were two policies in effect at the time of the fire, the first being the Cooperators Home-Guard policy with the standard mortgage endorsement clause in favour of the Plaintiff; the second being the subscription policy covering the interests of the Plaintiff/Mortgagee, subject only to $5,000 deductible. THE WITNESSES THEIR TESTIMONY Angela Paddock is clerk in the Credit Service Office of Canada Trustco at Halifax. It is her office which monitors payments, arrears, institutes foreclosure proceedings, and sees the company has insurance protection. Nancy During is her supervisor and Mr. Turner was her manager. She identified the computer message by which she requested insurance coverage under the subscription policy. She did so at the request of Fiander. The $150,000 figure was based on value or last appraisal. She understood the coverage would take effect immediately. It was placed on Friday and she knew the Mortgagors' coverage was to expire "on the weekend". Among her comments was that "We always put insurance" on the property if we are going to foreclose. The following week and after the fire, she discussed the insurance coverage and possible claim with co-workers. Tab 16 in the Exhibit Book is computer message to Dave Fiander: Spoke with Nancy about. She agrees with me do not tell insurance company that we requested insurance elsewhere. So please make sure thatwe are registered as lien holders. Please keep us updated. She explained this message as her opinion that they should not tell Co-op. She understood that Co-op was the first or primary insurer and that the two policies "will not pay". Since the Co-op policy was still in place, understood her belief to be that they should pay out the loss. She testified that her intention in placing the subscription coverage was simply "to make sure that Canada Trust was covered". She reviewed statement of the account, Tab 11, in the agreed Exhibits, dated 17th of September, 1992, which bore the handwriting of Fiander, which indicated Ms. Jamieson was two months in arrears at that time. Notations made by Fiander suggest various factors which gave rise to the decision to foreclose. This document likely relates to her testimony in cross-examination that she asked Fiander to go to the house on the 15th of 16th of September "because they were past due and could not find them". In her evidence, she appeared to take the position that Dave Fiander was responsible for managing Canada Trustco's interests. With respect to not advising Co-op of the subscription insurance, the decision was "left up to Fiander", but not doing so would, in her opinion, "make the claim simple, fast and uncomplicated". This proposal was common knowledge to her, Nancy During and Dave Fiander. The office manager, Alan Turner, who ultimately signed the Proof of Loss form, was not party to these discussions and was not told that Canada Trustco's interests had been protected by placing the subscription insurance, but she said: "He should have known our standard procedure". Ultimately, when no money came through from Co-op, Angela Paddock wrote Marsh McLennan (April 16th, 1993, Tab 42): Canada Trust did not contact you immediately about the fire as we assumed we were to be paid out by original insurance company. They are now are refusing to pay and we are continuing with our foreclosure action and will take an action against Co-operators Insurance for the deficiency. We will keep you advised as to our progress in this action. She acknowledged that FAX message sent the 9th of November, 1992, advised Marsh McLennan of the fire loss and that other insurance was in place. Co-op was not advised of the subscription policy to her knowledge. Nancy During was Angela Paddock's Supervisor. In her testimony, she recalled some discussion of placing insurance on the Brown/Jamieson residence and noted that there was corporate policy that if legal action was being commenced, insurance would be placed. She learned of the fire the following week. It was unusual. "We had never had fire before". She was able only to speculate about any "agreement" not to tell Co-op of the subscription policy. She said: She must have asked me the question. We were thinking that we had the blanket insurance, but it was not needed because of Co-op coverage. do remember some conversation about two coverages. She did not discuss the alternative insurance coverage with Alan Turner, her manager, who ultimately filed the Proof of Loss. She testified that there was no intent to withhold the information from Co-op and that she knew that there was the Co-op policy in force as well as the subscription policy. She "did not know we were under any obligation to tell (Co-op)" of the other existing policy. Alan E. H. Turner retired in 1992. He was the manager of the administration unit in which Nancy During and Angela Paddock worked. He was responsible for the administration of 9,000 or 10,000 mortgages at any given time, and he had no recollection of this particular mortgage or problems relating to it. He would have been advised when it went to foreclosure and he was advised in this case of the fire some time the week after it had occurred. He knew that Dave Fiander had sent out locksmith to change the locks only to find there was no house. It was the first fire loss that he had experienced. Mr. Turner really had little recollection of how the infonnation was generated or where the information came from which was included on the Proof of Loss form which he ultimately swore. He completed that document which appears at Tab 36 on the basis of draft form which had been presented to him. This included statement in space intended to disclose "other insurance" in which he entered the word "None". He testified: "I didn't think that there was other insurance". In his cross-examination, he said that he relied on information from others and that he would be surprised if those others knew that there was other insurance coverage at the time. Kevin Quigley is solicitor with Burchell MacAdam. He was involved in the preparation of the Proof of Loss form on which he swore the jurat on the 25th of January, 1993. He had been contacted in late November, 1992, by David Fiander whose title on this letter is Manager, Customer Service and Sales, asking him to "get it settled". He testified that Co-op had resisted paying the claim on the basis of certain misrepresentations: first, that Mrs. Brown had represented on her application that she had "never been rejected" for insurance; and secondly, that Canada Trustco had failed to advise the insurers that the Mortgagors had gone into arrears on their mortgage. The loss was filed; it was rejected by Co-op four days later which Mr. Quigley said was not surprise. He testified that the deficiency after the foreclosure sale and which is as of June 20th, 1993 was $89,307.58. No proceeds have ever been received from Co-op to his knowledge. Robert L. Barnes is barrister primarily engaged in tort litigation and he is an associate of Mr. Quigley. When the Canada Trustco claim took on the character of litigation, he took on the file. His understanding was that Co-op had originally rejected the claim on the basis of misrepresentations made by Mrs. Brown when applying for the coverage. Later, the reasons for rejecting the claim "evolved" to include the failure of Canada Trustco to advise the insurer of all the risks which came to their knowledge, specifically, the fact that the mortgage payments were in arrears and the "financial and other difficulties" of the Browns, that she was desperately attempting to sell this property, and that she "had been threatened with foreclosure" (Beckett letter, Feb. 24, 1993, TAB 49). On April 19th, 1993, shortly after his involvement began, he attended at the Canada Trustco office to review the contents of their file and for the first time, discovered that his client had placed insurance for their own protection under the subscription policy. As result, on April 19th, Mr. Barnes wrote Mr. Beckett, then acting for Co-operators, advising him that he had discovered the existence of the second fire insurance policy. .. It appears that Canada Trust had intended to obtain replacement policy to take effect on the expiry of the Co-operators policy, but there appears to have been an overlap to the extent of one day of coverage that being the date of loss. This would seem to be fortuitous from your client's point of view and could very well reduce its exposure to the extent that contribution from General Accident may now be warranted. This lawyerly language expressed the same opinion which he gave in testimony that "I thought this was windfall for Co-op" and "that they would be able to split the coverage". Shelley Giffin was clerk in collections at Canada Trustco and co­-worker of Angela Paddock. The Brown/Jamieson mortgage was, in fact, her file, however, she was away from the office from mid February 1992 until the Monday after the fire, and thus had little to add to the evidence of the others. She "imagined that she learned of the fire right away" and commented that they "had an obligation to keep updated on the properties they covered". Her recollection was that their office had endeavoured to have Dave Fiander complete the Proof of Loss statement since he was the person on the ground with greatest familiarity with the circumstances. Eventually, she said, Alan Turner did it because he was "fed up" with trying to get Dave to do it. In cross-examination, she agreed that the Browns had poor payment history; she had no knowledge of the cancellation of the Royal insurance nor of the proposed cancellation by Co‑op. She did acknowledge that Mr. Quigley had been requested to commence foreclosure against the property in March of 1992 and that after the event, she knew that there were two policies of insurance in existence. She was aware that Angela Paddock had placed the subscription insurance in accord with the company's practice. She had advised of the fire, but not Co-op. Her explanation was that she had never dealt with anyone at Co-op. DEFENCE EVIDENCE Defence evidence was given by James W. Higgins, staff insurance adjuster with the Defendant corporation. Because the house had been vandalized in early September, he went out to view it on the 14th of that month. He observed the house that had been damaged, which was in good condition, located on narrow dirt road. There were no near neighbours. The house was vacant and the electricity had been disconnected. As result, he expressed concern to his underwriting department. He became aware of the fire loss on Monday, September 21st, 1992, when the claim appeared on his desk that morning. His dealings with Canada Trustco were with Dave Fiander alone. He retained legal counsel on September 22nd. On December 9th, he received request from David Fiander for blank Proof of Loss form which could be completed by the Plaintiff. When it was returned, he "rejected" the claim because, in his opinion, the policy had been "voided for non disclosure" by Ms. Jamieson. He had, in the meantime, made inquiries of the previous insurer and detennined that they had cancelled their coverage because of "non payment" and the Crime Prevention Bureau had advised him of "previous losses". In February of 1993, notice was given to the insured that the policy was being voided. In cross-examination, he testified that as result of his initial visit to the property, he learned that it was for sale because there was listing cut on the counter and, in his opinion, it represented "higher risk". He was not, however, aware that vacancy permit had been issued by his corporation. He knew that his advice to cancel had been followed with Notice of Cancellation and he insisted that the real reason for cancellation was not the previous vandalism loss, but rather because of "exposure". After the fire loss, he reviewed the file "to see if there had been misrepresentations", something which he said he would "not do on small losses". The vandalism claim was never paid. Mr. Higgins said that he rejected the claim on advice of counsel and in the context of his "wondering whether this was all provable" and that "it was not going to be paid until it was all checked out". Co-op has paid nothing, he said, because "the policy was void". Sean Bedell was the second and final witness called on behalf of the defence. He now specializes in commercial insurance with another firm but at the relevant time, was sales agent for the Co-operators. It was Bedell who sold the insurance policy to Ms. Jamieson in March of 1992 at which time he visited the premises for an inspection, and he met Ms. Jamieson there. The premises were rented at that time and some repairs were to be done by the Tenant. He observed that the house was new, well built, and had wood furnace properly installed. He completed the application while taking infonnation from Ms. Jamieson, including the fact that claim on her car had been declined in 1991 for arson. He testified that vacancy permit was granted with respect to the property on the 7th of August and that he reviewed coverage few days later and was "slightly concerned". On August 11th, he inquired of Canada Trustco whether their payment history was O.K. and he was advised that there were "no problems". In early September, Ms. Jamieson called him to report theft and vandalism. As result of this claim, he had discussions with Mr. Higgins. "He had concerns; had concerns" and they agreed that it was "in our best interests to cancel". They obtained authority from supervisors to cancel on five days' notice, which he did. After the fire, he learned from the listing agent that the property had been vacant since June 19th and on speaking to Andrea Wadden at Canada Trust, he learned they had been advised of the vacancy on September 16th or 17th and that the Mortgagor was "behind two months in payments". It was Bedell who actually delivered the Notice of Cancellation to Ms. Jamieson by leaving it in her mailbox. He spoke to her the following day when she confirmed she had received the notice. Significantly, she asked him the "exact time" that coverage would cease and, "I told her, 12:01 on the 20th". Under cross-examination, Mr. Bedell confirmed it was beautiful house with replacement value of $200,000 and he confirmed that when the vacancy permit was obtained on August 7th, their office had been advised that the property had been vacant for some three weeks prior and will be "for three months". He confirmed that as result of his inquiry of August 11th, as he reviewed the file subsequent to the vacancy permit, he learned from Canada Trust that Ms. Jamieson was actually Mrs. Brown and that the mortgage was in both names. This fact did not concern him, he said, but he was concerned about the status of mortgage payments. He agreed that the information obtained from Ms. Wadden of Canada Trustco after the fire made it "clear she was talking of developments in the previous five days" and that this conversation made it clear that Canada Trustco was making efforts to preserve the property and their interest in it. He was asked if he took any action to preserve the property and he responded: "I asked my supervisor to hire security". "Adding up the facts, it was more likely than not" that loss might occur and when she had asked the exact time of cancellation, "that made the hair stand on the back of my neck". THE ONUS OF PROOF The Defence raises issues of fraud and/or false statements in the Proof of Loss which was filed by Canada Trustco with respect to their loss as Mortgagee. adopt the comments of Grant, J. as expressed in Reid v. Halifax Insurance Company (1984), 66 N.S.R. (2d) 181, (T.D.). Justice Grant reviewed the authorities and concluded as follows: "As interpret these cases, the standard of proof is on the balance of probabilities. However, there are degrees of probabilities within the range of balance of probabilities. The standard of proof in civil case does not reach that of criminal case where proof must be beyond reasonable doubt. The degree of proof required in civil case where the allegation is of conduct that is morally blameworthy or that could have criminal or penal aspect to it is higher degree of probability than when there is not morally blameworthy, criminal or penal aspect to it. However, in each instance it is still on balance of probabilities but in the former, of higher degree. balance of probabilities is where it is more probable that an event happened than that it did not happen. The scale of probabilities must be weighed in favour of the event having happened. Where the scales are evenly weighed, then the person who has the burden of proof has not tipped the scales on the balance of probabilities and fails. In civil action where criminal act such as fraud or arson is alleged, the standard of proof is still on balance of probabilities but on higher degree of probability, commensurate with the conduct alleged." accept also the law as advanced by Defence Counsel that: "...Derry v. Peek (1899), 14 App. Cas. 337, is authority for the proposition that false representation is fraudulent if made: (1) knowingly; or (2) without belief in its truth; or (3) recklessly without caring whether it be true or false. If an insured in advancing claim takes it upon himself to swear as to statement of fact as to the accuracy of which he knows that he is entirely ignorant, and if such fact be not true, it is fraud..." Issue No. will express this way: What contracts of insurance were in place for the protection of Canada Trustco at the time of the fire? Notwithstanding the numerous references in the evidence to the misrepresentations of Ms. Jamieson in applying for her insurance policy with the Co-operators, both parties are in agreement that such alleged misrepresentations would not affect the enforceability of the contract of insurance between the Co-operators and the Plaintiff, Canada Trustco, as Mortgagee. It is abundantly clear as result of the decision of the Supreme Court of Canada in Panzera et al v. Simcoe and Erie Insurance Co. et al (1990), 1990 CanLII 92 (SCC), 74 D.L.R. (4th) 197 that misrepresentation by Mortgagor in obtaining insurance coverage will not affect the rights of the Mortgagee to collect on the policy of insurance thereby created where the insuring company has issued the standard form of mortgage endorsement. The head­note indicates: The plain words of the clause signified that the mortgagee was not affected by any misrepresentation on the part of the mortgagor, whether made before or after the contract. The reasonable expectation of the mortgagee was that the clause would have the same effect as separate policy insuring the mortgagee's interest. Both the propositions enunciated in the above quotation have application to this case. It may be useful to quote fairly extensively from some of the relevant comments of La Forest, J., who delivered the majority decision, (page 199/200): .. review of the American authorities reveals an all but universal consensus to the effect that this clause evidences an independent contract between the insurer and the mortgagee. My colleague has also noted that the "two contract" theory is now well anchored in Canadian jurisprudence. Notably, in London Midland General Insurance Co. v. Bonser (1972), 1972 CanLII 18 (SCC), 29 D.L.R. (3d) 468... ...by virtue of the two-contract theory, the insurance of the mortgagee cannot be invalidated by any act or neglect of the mortgagor, be it at the inception of the policy, or subsequent to its formation ... ...the contrary interpretation...distorts the plain and ordinary language used in the standard clause. .. find myself in full agreement with the analysis in Sanborn Cir. J. who concluded, at pp. 176-7 (Syndicate Ins. Co. v. Bohn, 65 F. 165 (1894), Eighth Circuit, U.S. Court of Appeal): Was it that contract that the indemnity of the mortgagee should not be protected against any prior act or negligence of the mortgagors? There is no such restriction in the contract. It provides that the mortgagee's interest shall not be invalidated by any act or neglect of the mortgagors, by any occupancy or vacancy, or by any change of title or possession of the premises, provided that the mortgagee shall notify the insurance company of any change of ownership or increase of hazard that may come to its knowledge, shall have permission therefor indorsed on the policy, and shall pay for it ....What apter terms could be chosen to effect separate insurance on the interest of the mortgagee, to free that insurance from any possible influence of any act or neglect of the mortgagors, and to make it dependent solely on the course of action of the mortgagee and the insurance company? None occur to us. (Page 206) It is clear that the substance of the difference between the Canadian mid American versions of the clause lies in the fact that the text used in Canada incorporates distinct and pointed reference to "omission" and "misrepresentation" of the mortgagor, over and above the mention of "act" and "neglect". (Page 207) In summary, when the standard mortgage clause is interpreted in the light of the settled principles that govern the construction of insurance contracts, there can be no doubt that the insurer, by virtue of this clause, is representing to the mortgagee that separate and distinct contract exists between them, and that the validity of this independent contract depends solely on the course of action between the mortgagee and the insurer. In reviewing the history of the standard mortgage clause, La Forest, J. makes it clear that such clause is not to be equated with what might be called loss payee provision and, thus, it creates "a direct contract" between the Mortgagees and the insurance company as would enable the former to sue in their own name alone and irrespective of the mortgagor. My comment, then, is it is clear that the issuing of standard mortgage endorsement clause creates an independent right of action in the mortgagee, and as La Forest, J. goes on to say (page 214): ...it was precisely because the standard mortgage clause held out the promise of making the mortgagee's insurance dependent solely on the course of action between the mortgagee and the insurance company that it supplanted the use of the "open mortgage" clause in the insurance industry. (Page 216) ...clearly, if mortgagees elect to insure through the medium of the standard mortgage clause, they can only be doing so on the reasonable expectation that their interests will be protected in the same way as if they had entered into an independent contract evidenced by separate piece of paper. And this further quote: conclude that by the terms of the standard mortgage clause the insurer has represented to the mortgagee that it will decline to set up as against the mortgagee any omissions and misrepresentations made by the mortgagor in effecting coverage for the mortgagee and which, by the ordinary application of the law of mandate, might otherwise be imputable to the mortgagee. Any other interpretation would, in my view, fail to concord with the reasonable expectations of the parties as to the coverage offered by the standard mortgage clause, and, indeed, by making the insurance of the mortgagee derivative to certain degree on the course of dealings between the mortgagor and the insurer, would strike at the very raison d'etre of the standard mortgage clause. To similar effect is the later case of the Royal Bank of Canada v. North Waterloo Farmers Mutual Insurance Co. (1992), 1992 CanLII 7545 (ON SC), O.R. (3d) 723 and the much earlier case of the Ontario Court of Appeal, London L. S. Co. of Canada v. Union Ins. Co. of Canton Ltd., 1925 CanLII 446 (ON CA), [1925] D.L.R. 676, this latter case, having been cited with approval by La Forest, J. in his decision in Panzera (supra). In this latter case, the mortgage endorsement clause included paragraph as did the clause presently before the Court in these terms: It is further provided and agreed that the mortgagees shall at once notify the said company if non-occupation or vacancy for over 30 days or of any change of ownership or increased hazard that shall come to their knowledge; and that every increase of hazard, not permitted by the policy to the mortgagor or owner, shall be paid for by the mortgagees, on reasonable demand, from the date such hazard existed, according to the established scale of rates, for the use of such increased hazard during the continuance of this insurance. With respect to that clause, Logie, J. had this to say: am of opinion that in this case the insurance company have in their own language set forth the only penalty which the mortgagees must suffer for failure to notify the insurers of transfer or change of ownership which comes to their knowledge, namely, that the mortgagees must, if there is an increase of hazard by reason thereof, pay an increased rate. This philosophy was expressed by our own Appeal Division in Royal Insurance Co. of Canada v. Gordon (1981), 1981 CanLII 2757 (NS CA), 125 D.L.R. (3d) 372, where the head-note reads: mortgage clause in an insurance policy provided that the mortgagee should notify the insurer of any vacancy beyond 30 days or increased hazard known to the mortgagee, and that the mortgagee should pay an increased premium for any such increased hazard ....the only penalty for failure to notify was liability for the increased premium. Clearer language would be required to effect forfeiture. (My emphasis) This decision quotes extensively from London L. S. Co. of Canada v. Union Ins. Co. of Canton Ltd. above, including the comments of Logic, J. It is, therefore, clear from the cases that there was valid contract of insurance in place between the Defendants, the Co-operators Insurance, and the Plaintiff, Canada Trustco, at the time of the loss. This contract of insurance was separate from and independent of any contract or any liability which the insurers may have to the owners, Brown/Jamieson. The limits of coverage under this separate contract would obviously be the loss which might be suffered by Canada Trustco in the event of an occurrence covered by the policy. In spite of the nominal insured value of the property of $200,000, that amount was not the coverage extended to the mortgage company. In the result, the risk covered for the benefit of Canada Trustco was the balance of their mortgage, less any recovery on foreclosure. That amount was determined after foreclosure to be $89,307.58 as of June 20th, 1993. This policy included the Standard Mortgage Clause: Standard Mortgage Clause (approved by the Insurance Bureau of Canada) BREACH OF CONDITIONS BY MORTGAGOR, OWNER OR OCCUPANT 1. This insurance and every documented renewal thereof AS TO THE INTEREST OF THE MORTGAGEE ONLY THEREIN is and shall be in force notwithstanding any act, neglect, omission or misrepresentation attributable to the mortgagor, owner or occupant of the property insured, including transfer of interest, any vacancy or non-occupancy, or the occupation of the property for the purposes more hazardous than specified in the description of the risk. PROVIDED ALWAYS that the Mortgagee shall notify forthwith the insurer (if known) of any vacancy or non-occupancy extending beyond thirty (30) consecutive days, or of any transfer of interest or increased hazard THAT SHALL COME TO HIS KNOWLEDGE; and that every increase of hazard (not permitted by the policy) shall be paid for by the Mortgagee on reasonable demand from the date such hazard existed, according to the established scale of rates for the acceptance of such increased hazard, during the continuance of this insurance. OTHER INSURANCE 3. If there be other valid and collectible insurance upon the property with loss payable to the Mortgagee as law or in equity then any amount payable thereunder shall be taken into account in determining the amount payable to the Mortgagee. There was also in existence the policy of insurance between C.T. Financial Services Inc. and General Accident Assurance Company and others, which has been referred to in these proceedings as the "subscription policy". It was subscription policy no. MMF/1023 Pre-Reasol, whereby number of insurance companies undertook to indemnify C.T. Financial Services Inc. and its subsidiaries for the period April 30th, 1990 to April 30th, 1991, which, as the result of subsequent endorsements, continued in effect at the material time. The coverage afforded by this policy pennitted the Mortgagee from time to time to simply notify the insurer of their requirement for coverage of property on which they held mortgage. The triggering event appears to be described in paragraph of Section A: Within the Policy Period, coverage shall attach effective the date requested by the Named Insured, which date will be either the date of possession of the security by the Insured or the date the Insured becomes aware that the property is inadequately insured or uninsured and legal action to obtain the security has been initiated. (My emphasis) On Friday, September 18th, as result of the Notice given or the request made by Angela Paddock, this contract was put in force with respect to the Brown/Jamieson property to the extent of the Mortgagee's interest. Other relevant clauses in this policy include Section B: PROPERTY DAMAGE 1. PROPERTY INSURED: (a) The Interest of the Insured only in Property of Every Description as reported by the Insured, except as excluded specifically elsewhere in this Policy, on which the Insured holds mortgage or Foreclosed Properties prior to title being obtained by the Insured and where there is no other insurance or inadequate insurance on the property or evidence of insurance has not been provided. (My emphasis) 3. THIS POLICY DOES NOT COVER THE FOLLOWING PROPERTY: (e) Property for which there is other valid and collectible insurance. (My emphasis) And Section D: GENERAL CONDITIONS 8. OVERLAPPING COVERAGES CLAUSE: In the event of dispute arising between Insurers because of overlapping coverages, it is understood and agreed that the rules set forth in the "Agreement of Guiding Principles With Respect to Overlapping Coverages Relating to Property Insurance", adopted by the All Canada Insurance Federation in 1958 and subsequent amendments, shall prevail. PREMIUM: The premium charged at inception and at subsequent anniversary dates, is provisional only and shall be adjusted on receipt of the statement of values and policy rate. And SECTION E: STATUTORY CONDITIONS 6. REQUIREMENTS AFTER LOSS: (a)(ii) (To) Deliver as soon as practicable to the Insurer proof of loss ...(4) Showing the amount of other insurances and the names of other Insurers, FRAUD: Any fraud or wilfully false statement in statutory declaration in relation to any of the above particulars, vitiates the claim of the person making the declaration. 12. WHEN LOSS PAYABLE The loss is payable within sixty days after completion of the proof of loss, unless the Contract provides for shorter period. The subscription policy also carried the standard mortgage endorsement clause, including provision for increased rates in the event that the property is vacant or other risks constituting an increased hazard and the following standard provision with respect to other insurance If there be other valid collectible insurance upon the property with loss payable to the Mortgagee at law or in equity then any amount payable thereunder shall be taken into account in determining the amount payable by the Mortgagee. The testimony of the witnesses and the documents establish without any doubt that there were two policies of insurance effective on this property at the time of the loss. The contracting parties were Canada Trustco as Mortgagee and the two insurance companies respectively as insurers. The terms of the policies were virtually identical. The risks insured against were the same and the interest insured was that of the Mortgagee which was ultimately determined to be $89,307.58. Each of the policies carried its own provision with respect to "other insurance" and the requirement that the mortgage company file proof of loss indicating all the insurance coverage outstanding and further providing that the obligation of the insurer would be limited by the extent to which the insured was entitled to contribution from another insurer. have not compared the clauses in their particularities with each other or with the Insurance Act because consider that Section 169 of the Insurance Act, R.S. c.231 would override any deviation in such clause. Section 169 provides: Contribution among insurers 169 (1) Where, on the happening of any loss or damage to property insured, there is in force more than one contract covering the same interest, the insurers under the respective contracts shall each be liable to the insured for its rateable proportion of the loss unless it is otherwise expressly agreed in writing between the insurers. FRAUD ITS EFFECT The remaining issue and the principal subject of dispute between the parties is whether the conduct of Canada Trustco through its employees was fraudulent or their statements or representations to the Defendant false in such manner as to constitute breach of statutory condition 7, thereby vitiating the claim. Statutory condition as contained in the Co-op policy reads: Any fraud or willfully false statement in statutory declaration in relation to any of the above particulars vitiates the claim of the person making the declaration. In the case before me, both parties have emphasized that an insurance contract is one which depends upon the utmost good faith of both the insured and the insurer. The nature and value of the property insured must be frankly disclosed on the one hand and the obligation to indemnify must not be avoided on the other. The insurer is entitled to know the extent of the risks for which they offer indemnification but the insured is entitled to have expeditious settlement of genuine claim without prevarication. claim such as this would be fraudulent only if the party making the claim consciously and knowingly misrepresents the facts so as to gain an advantage; in this case, indemnification to which they are not entitled. It is an action which, when discovered, would result in the Claimant being penalized by losing not only that which they have claimed, but also that to which they were entitled, assuming they were entitled to some lesser indemnification. Motive and intention in this context are essential factors to be established. As the scholars as well as the cases establish, it is the duty of an insurance company to insist "on full and searching examination" of claims in order to discharge "their duty to their shareholders and the public" so that they will avoid the payment of "false" claims, meaning as understand it, claims which are deliberately invented. The law contemplates that those who invent false claims or intentionally exaggerate their claims for the purpose of gaining profit from an occurrence should be punished by having their claim disallowed. The onus of proof on the insurer refusing to pay on the basis of fraud or misrepresentation must be commensurate, then, with that concept of punishment. The Defendant here has taken the position that the formal Proof of Loss filed by Canada Trustco was fraudulent in that it failed to disclose the existence of "other insurance". In addition, it is argued that Canada Trustco, through its employees, withheld or misrepresented facts relevant to the extent of the risk which the Co-operators covered. have referred earlier to the onus of proof which applies in these matters when such issues are raised. I am not satisfied that the Defendant has established on a balance of probability that there was any material misrepresentation with respect to the extent of the risk, nor any fraudulent behaviour with respect to the completion of the Proof of Loss. With respect to the latter, there is a heavy onus on the party making the allegation. find the relevant facts to be as follows: BEFORE THE LOSS: 1. While the Mortgagor was two months in arrears as of September 22nd when Mr. Bedell spoke to Ms. Wadden, there is no evidence that there were any arrears as of August 11th when the initial inquiries were made in the context of the granting of vacancy permit. 2. As of September 15th and 16th, the evidence persuades me that Mr. Higgins and Mr. Bedell, both representatives of the Co-operators, had greater understanding and awareness of the circumstances of Ms. Jamieson, the property and the risks faced by the underwriters than did anyone at Canada Trustco, including Dave Fiander, the manager of this file. 3. There is high probability that if Mr. Bedell's advice to his superiors had been followed, and if security person had been retained to ensure the safety of the property on the 18th of September and until the Co-operators' policy expired, their risk could have been substantially diminished or more likely completely avoided. 4. Dave Fiander was served with Notice of Cancellation of the fire insurance coverage of Co-operators on or about September 15th. As result, he visited the premises, spoke to Ms. Jamieson, spoke to Mr. Bedell, and gave instructions that foreclosure proceedings should be commenced and insurance should be placed on the property under the subscription policy for the purpose of protecting Canada Trustco. In accordance with that request and company policy, Angela Paddock requested coverage under the subscription policy on Friday, September 18th. accept on her evidence that placing such insurance is automatic when foreclosure is instituted; that the coverage was to take effect immediately and that her intention was "to make sure Canada Trust was covered". accept the evidence of Nancy During that corporate policy required that when decision was taken to commence legal action, insurance would be placed on mortgaged premises to protect the interests of Canada Trustco. accept that she understood from Angela Paddock that the Mortgagor's policy was "expiring" on the weekend. AFTER THE LOSS: 1. The evidence of Mr. Higgins makes it clear that as early as the 22nd of September, and in the context of his knowledge of the prior vandalism and general circumstances of Ms. Jamieson and the property, that any claim would be rejected. It was on that day he consulted counsel. infer from his testimony that the subsequent filing of the Proof of Loss by Ms. Jamieson and later by Canada Trustco was simply matter of form and the rejections subsequently issued by his company flowed from that initial rejection of the claim. Indeed, it may be inferred that that intention to deny any claim was being furthered with the instruction to Mr. Bedell that he gather information about the circumstances of Ms. Jamieson and the status of the mortgage payments, which he did on or about September 22nd. 2. After the fire, there were discussions among Dave Fiander, Angela Paddock, and her supervisor, Nancy During, about the need to tell the Defendant insurers of the second insurance coverage. Angela Paddock's evidence was, "I understood Co-op was first and that two insurance companies will not pay". "Co-op was still in place." accept her evidence that she believed processing the claim would be simpler, faster and less complicated if the subscription policy was not mentioned, but that she and Nancy During left it in Dave Fiander's discretion to discuss that coverage or not with the Co-operators people with whom he was in contact. accept the evidence of Nancy During that she "thought" the "blanket insurance" was not needed because the Co-op coverage was still in place in spite of the fact that she knew of the overlapping coverage. accept the evidence of both these witnesses, Ms. Paddock and Ms. During, that they did not discuss the second policy with Mr. Turner who ultimately completed the Proof of Loss. find that these three, During, Paddock and Fiander, knew that there were two policies of insurance in force on the property, but it has not been established that they knew or understood that the existence of two policies diminished the obligation of Co-operators or resulted in any obligation by the subscription insurers to pay, except or unless for some reason, the Co-operators' policy was avoided. It is not established that Alan Turner, who completed the Proof of Loss, knew of the second policy, however, it is established that it was company policy that the subscription policy would be put in place once the decision had been made to initiate legal action. Turner knew or should have known by his own testimony that decision to foreclose had been made on this property and, presumably, would have known of the corporate policy to require coverage of the subscription insurers. 3. It has not been established that Alan Turner knowingly misrepresented the fact of "other insurance". accept the evidence of all the employees of Canada Trustco that this was the first instance in which they had been required to deal with fire insurance claim. INCREASED RISK The Defence has raised the issue of whether the failure of Canada Trustco to advise them of circumstances relating to increased risk or misrepresentations with respect to that issue constitute cause to void the contract of insurance. am satisfied on the basis of Royal Insurance Co. of Canada v. Gordon, cited above, that the only penalty for failure to notify the insurer of increased risk would be liability for an increased premium. Furthermore, as outlined in the review of the circumstances applicable here, Co-operators was in possession of more information relating to any increased risk than was Canada Trustco. The failure of the mortgage company's employees to communicate anything which they knew could not have affected the position of Co-op in any material way. This argument is, accordingly, without merit. FRAUD OR MISREPRESENTATION ON THE FILING OF THE PROOF OF LOSS Short v. Guardian Insurance Company of Canada (1984), 62 N.S.R. (2d) 1, decision of the Nova Scotia Supreme Court, Appeal Division, is authority for the proposition that in order to avoid coverage in such circumstances, it is necessary for the insurer to meet the heavy burden of producing evidence that is clear and satisfactory and leaves no room for any reasonable inference, but that the insured has made "wilfully false statements". In his decision, MacKeigan, C.J.N.S., referred to the comments of the Trial Judge who had said: It is necessary that, when statutory declaration is filed and sworn to, it be done in good faith. find that there have been wilful, false statements which vitiate the entire claim... find that the intention was there to defraud, based upon the overestimation of the value of the items... (My emphasis) The Chief Justice commented Mrs. Short was thus held guilty of fraud and "wilfully false statements" in the sworn proof of loss by knowingly overvaluing numerous items with intention to defraud. Such acts, when so found, vitiated the plaintiff’s entire claim under Statutory Condition and, of course, exposed her to possible prosecution for false pretences, fraud or forgery under the Criminal Code.. To establish such defence...the insurer has heavy burden to produce evidence that is "clear and satisfactory and leaves no room for any reasonable inference but that of guilt". (My emphasis) While it is clear that proof beyond reasonable doubt is not die standard to be applied in civil matter, it is not inconsequential, in my view, that the comments of Chief Justice MacKeigan import the language of the Criminal Code into the discussion. Subsequently, in allowing the appeal of Mrs. Short, the Chief Justice discussed and analyzed the context of the claim and the motives of Mrs. Short in completing the Proof of Loss as she had done. consider it necessary to review the motivations and the context which acted upon the employees of Canada Trustco in connection with placing the subscription policy and in filing Proof of Loss with the Defendant which clearly included the impugned misrepresentation of fact of other insurance. First of all, there is no suggestion of any personal motive of any of the employees in either placing the subscription policy or attempting to recover payout from Co-op. There is no suggestion of any possibility of personal gain or loss as result of the manner in which they handled the claim. Furthermore, the entitlement of Canada Trustco itself is precisely the same, whether coverage is provided by either or both policies. The limit of their coverage is their exposure on the mortgage. There is no suggestion that the employees of Canada Trustco had any thought of collecting double the insurance or of giving preference to either of the insurers. The reasonable inference is simply that they followed corporate policy to obtain coverage under the subscription policy as "backstop" insurance only. There is some suggestion that they may have believed that the subscription insurers were liable only at 12:01 a.m. on September 20th, although careful reading of the policy makes it clear that the coverage went into effect "immediately". There is no evidence that any of the persons involved had any actual knowledge of or access to the specific terms of either policy. While Mr. Turner, in filing the Proof of Loss, must have known of the corporate policy to place insurance immediately with the subscription insurers, there is no evidence to suggest that he ever turned his mind to that fact, nor that he would have had different opinion about the primary liability of Co-operators if he had done so. Like his fellow workers, he had never been involved in fire claim previously. Indeed, even if Mr. Turner or the others had read paragraph of Section of that policy, they might have found some support for their opinion that the policy was effective only after the effective cancellation of the Co-op policy, in view of the words ...coverage shall attach...or the date the Insured becomes aware that the property is inadequately insured or uninsured and legal action to obtain the security has been initiated. (My emphasis) Section B, paragraph 1(a) includes these words: PROPERTY INSURED The Interest of the Insured only in Property ...where there is no other insurance or inadequate insurance on the property... And similarly, paragraph 3(e): THIS POLICY DOES NOT COVER THE FOLLOWING PROPERTY: Property for which there is other valid and collectible insurance. In view of those words appearing in the subscription policy and in view of the context in which the claim was put forward, the Defendant has not satisfied that heavy burden of producing clear and satisfactory evidence that Canada Trustco, through its employees, acted wilfully and knowingly to claim the benefit of coverage to which the corporation was not entitled. I find the Defendant is obliged to indemnify the Plaintiff as it contracted to do. It was put forward as defence by Co-operators that Canada Trustco has already been fully indemnified by the subscription insurers and as consequence, has sustained no loss and consequently possesses no status to claim against Co-op, except for the $5,000 deductible. It is argued further that the subscription insurers, having chosen to indemnify Canada Trustco, might have made claim against Co-op for contribution, but that by choosing to continue the proceedings which had been commenced by Canada Trustco, and exercising their subrogation rights, they are limited to the same recovery which would have been available to Canada Trustco. find these arguments to be without merit and acceding to them would impose an extremely legalistic conclusion entirely at odds with just resolution. In any event, would have concluded that the rights of the respective parties were frozen in time by the commencement of the action by Canada Trustco. This action was commenced before they had received any indemnification from the subscription insurers. RATEABLE PROPORTION Section 169 of the Insurance Act provides: Where, on the happening of any loss or damage to property insured, there is in force more than one contract covering the same interest, the insurers under the respective contracts shall each be liable to the insured for its rateable proportion of the loss unless it is otherwise expressly agreed in writing between the insurers. The Home-Guard policy issued by the Defendant, Co-operators, provides: INSURANCE UNDER MORE THAN ONE POLICY If you have other insurance which applies to loss or claim or would have applied if this policy did not exist, we will not pay any loss or claim until the amount of such other insurance is used up. In all other cases, our policy will pay its rateable proportion of the loss or claim. The subscription policy incorporates similar provision: 8. OVERLAPPING COVERAGES CLAUSE: In the event of dispute arising between Insurers because of overlapping coverages, it is understood and agreed that the rules set forth in the "Agreement of Guiding Principles With Respect to Overlapping Coverages Relating to Property Insurance", adopted by the All Canada Insurance Federation in 1958 and subsequent amendments, shall prevail. In terms of equity, the Plaintiff and the subscription insurers should be entitled to contribution from the Defendants to the same extent as if the Proof of Loss had been correctly completed. Both policies were in force at the time of the loss. Section 169 of the Insurance Act makes it clear that both insurers must contribute. The face amount or the nominal amount of insurance coverage in each policy is irrelevant. Co-operators had contract with Ms. Jamieson/Brown to provide indemnification up to $200,000 in certain circumstances. Under the standard mortgage insurance clause, however, there existed separate contract with the mortgage company to indemnify them to the extent of their loss. The terms of the subscription coverage are identical to the latter contract excepting only that the subscription insurers have the benefit of $5,000 deductible. Otherwise, the limits of their policy similarly provide indemnification only to the extent of the exposure of the Mortgagee on nonpayment by the Mortgagor. In both cases, the limit of coverage subsequent to foreclosure has been determined to be $89,307.58. On this basis, find that the Defendant, Co-operators, is obliged to pay the Plaintiff $5,000, plus 50% of the residue of the claim of $89,307.58, for total of $47,153.79. find further that the obligation of the subscription insurers under the policy was $42,153.79. To the extent that they have overpaid, then, they are entitled to recover from Canada Trustco or, alternatively from the Co-operators. have considered the question of prejudgment interest in the context of Montreal Trust Co. v. Dominion of Canada General Insurance Co. et al (1987), 1987 CanLII 4155 (ON SC), 60 O.R. (2d) 481, decision of the High Court of Justice of Ontario. In that case, there was failure of the insured mortgagee to disclose to the insurer change of ownership of the property and the Trial Judge refused an allowance for pre-judgment interest. He offers no rationale for having done so. Pre-judgment interest is intended to compensate the Plaintiff for the failure of the Defendant to make prompt settlement of the sum ultimately found to be due and owing. Statutory Condition 12 provides that loss shall be payable "within sixty days after completion of the proof of loss, unless the Contract provides for shorter period". The Claimant has responsibility to protect their own interests under the Act by filing the Proof of Loss promptly. Fortunately or unfortunately, there is no obligation on the insurer to provide form for the Proof of Loss, but the obligation to file rests firmly on the insured. In this case, it is apparent that the Insurer somewhat reluctantly provided form of Proof of Loss which was ultimately completed and filed by the insured. Both parties were responsible for some delay. see no reason why either should be penalized in the circumstances here. Interest on the award will be payable by the insurer to the Plaintiff for the period commencing 60 days after the Proof of Loss was filed. expect the parties will be able to agree on the rate of interest applicable. If not, am prepared to hear representations in that regard. The Plaintiff will have its costs on the amount recovered under Tariff A, on Scale 4. J. Digby, Nova Scotia September 12th, 1996 TO: Ms. Gretchen G. Pohlkamp Prothonotary The Law Courts 1815 Upper Water Street Halifax, Nova Scotia B3J 1S7 Mr. W. Dale Dunlop Walker, Dunlop P.O. Box 3366 Halifax, Nova Scotia B3J 3J1 Solicitor for the Plaintiff Mr. Clarence A. Beckett, Q.C. Patterson Palmer Hunt Murphy P.O. Box 1068 Truro, Nova Scotia B2N 5B9 Solicitor for the Defendant CASES AND STATUTES CITED: Reid v. Halifax Insurance Company (1984), 66 N.S.R. (2d) 181 (T.D.) Derry v. Peck (1899), 14 App. Ca. 337 Panzera et al v. Simcoe and Erie Insurance Co. et al (1990), 1990 CanLII 92 (SCC), 74 D.L.R. (4th) 197 Royal Bank of Canada v. North Waterloo Farmers Mutual Insurance Co. (1992), 1992 CanLII 7545 (ON SC), O.R. (3d) 723 London L. So. Co. of Canada v. Union Ins. Co. of Canton Ltd., 1925 CanLII 446 (ON CA), [1925] D.L.R. 676 Royal Insurance Co. of Canada v. Gordon (1981), 1981 CanLII 2757 (NS CA), 125 D.L.R. (3d) 372 Insurance Act, R. S. c. 231 Short v. Guardian Insurance Company of Canada (1984), 62 N.S.R. (2d) Montreal Trust Co. v. Dominion of Canada General Insurance Co. et al (1987), 1987 CanLII 4155 (ON SC), 60 O.R. (2d) 481

The plaintiff held a mortgage on a house destroyed by a suspicious fire. At the time of the fire there were two insurance policies in place for the purpose of indemnifying the plaintiff. One was placed by the mortgagors with the defendant to protect both their interests and those of the plaintiff. When the defendant notified the plaintiff that it was going to cancel the policy, the plaintiff placed a second policy on the property. The fire occurred less than a day before the first policy was to be cancelled. The defendant refused to honour the policy. It claimed that the formal Proof of Loss filed by the plaintiff was fraudulent, as it failed to disclose the existence of the second policy. Finding for the plaintiff, that the defendant has not satisfied the heavy burden of producing clear and satisfactory evidence that the plaintiff, through its employees, acted wilfully and knowingly to claim the benefit of coverage to which it was not entitled.

c_1996canlii472.txt

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 077 Date: September 12, 2017 Information: 90130120 Location: Rosetown Between: Her Majesty the Queen and Brayden Lee Weese Appearing: Robin Ritter For the Crown Ron Piche For the Accused JUDGMENT M.M. BANIAK, [1] The accused, Brayden Lee Weese, was charged as follows: 1) while his ability to operate motor vehicle was impaired by alcohol did operate motor vehicle, contrary to s. 255(1) and s. 253(1)(a) of the Criminal Code; and 2) having consumed alcohol in such quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood did operate motor vehicle, contrary to s. 255(1) and s. 253(1)(b) of the Criminal Code. [2] The Crown’s first witness was Constable Blair De Bruin, an eight year member with the RCMP stationed in Rosetown. [3] On December 18, 2016, he was doing traffic enforcement on highway #31 near Herschel, Saskatchewan, village some thirty kilometres from Rosetown. Around 00:47 hours he noticed vehicle travelling on the main road towards them. When the oncoming vehicle was about 100 150 metres from the police vehicle it veered off the main road and down what Constable De Bruin called “goat trail”. This action triggered response from the police officer: “I stopped the vehicle because it went down the trail.” He also testified that he stopped the vehicle for the purpose of checking for driver’s licence, registration and sobriety. [4] Once he pulled the vehicle over, he noticed an open case of beer in the backseat. The accused, who was the driver, had blood shot eyes. His speech was slurred. He advised Constable De Bruin that he drank three beer. [5] At this point, Constable De Bruin testified “I formed the grounds to suspect that he had alcohol in his body he said his last drink was about five minutes before stopped him. had to wait fifteen minutes before could take sample into the ASD.” [6] The relevant time frame is: formulated grounds at 00:51 hours; ASD demand at 00:56 hours; ASD test administered at 01:06; accused place under arrest at 01:07 hours; breath test 01:08 hours; and right to counsel 01:09 hours. [7] The accused indicated that he understood his right to counsel, but that he did not wish to call lawyer. [8] Constable De Bruin departed the village of Herschel at 1:13 a.m. and arrived at the Rosetown detachment at 1:35 a.m. [9] Once at the detachment, the accused was asked once again if he wanted to call lawyer and he again declined to do so. [10] The area where the accused was held during the observation periods was monitored by surveillance cameras. Constable De Bruin testified that he did not see or hear the accused vomit or do anything that might have compromised or elevated the readings by mouth alcohol. He was also of the view that since both readings were 100 milligrams of alcohol in 100 millilitres of blood this was indicative of no mouth alcohol. [11] During cross-examination, Constable De Bruin acknowledged that the main reason he stopped the accused is because he went down goat trail”, but not that he was also checking for licence, registration and sobriety. He also testified that he would not give the accused his Charter rights to counsel prior to the first ASD test. [12] Constable De Bruin testified that he conducted the observation of the accused and that he did not hear any burps or belches. He also agreed with defence counsel that burp could be silent. He also acknowledged that he left the accused alone for short period of time and that he would not be able to see what happened during his absence. [13] Defence Exhibit D-2, which is video of the Rosetown Detachment hallway (the location where the accused was being observed) show that for period of time Constable De Bruin was attending to some paperwork at the counter. His back was to the accused. At one point he left the hallway location altogether and went into another room. In total, the accused was not observed for approximately two and one-half minutes. [14] During examination-in-chief, Constable De Bruin testified that the detection system on the breathalyzer instrument would indicate if there was mouth alcohol present at the time the test was being administered. [15] During cross-examination, he acknowledged that he is not sure if the detector is 100% accurate. Defence Exhibit D-3 is manual for the INTOX EC/IR 11 it is dated July 11, 2011 and that was the same manual that Constable De Bruin was familiar with: “this is the manual was trained on”. [16] Chapter of this manual deals with the observation period. Page of Chapter states in part as follows: While most breath testing instruments have methods to detect the presence of mouth alcohol in breath sample, they are not 100% effective. As such, it is important that continuous 15 minute observation period be conducted prior to the analysis of each breath sample to allow any alcohol which may be present in the mouth to dissipate [17] Immediately following this paragraph, is directive as to how proper observation period should be conducted: 1. Search the subject to ensure they do not have products containing alcohol on their person. Check the mouth of the subject and ensure it contains no foreign objects such as tobacco, gum, food or other unusual objects that may retain alcohol or present choking hazard. 2. Place the subject in the observer’s field of view and within close proximity where clues of consumption, burps or vomiting can be detected. 3. Observe the subject for at least 15 continuous minutes prior to each breath test, ensuring the subject does not drink any alcoholic beverages or other liquids, and does not place anything in their mouth, burp or vomit. 4. Restart the observation period if the subject is not maintained within close proximity and in the field of view of the observer or if the subject places anything in their mouth, burps or vomits. Position of the Parties [18] The Crown submits that the stop of the accused was proper and lawful. The police officer was checking for licence, registration and sobriety. Defence did not establish on balance of probabilities that this was not so. [19] Secondly, Crown argues that the accused was not deprived of his right to counsel during the time he was waiting to provide sample into the approved screening device as the fifteen minute wait was justified because the accused admitted to just having consumed an alcoholic beverage five minutes before being stopped. Moreover, the accused declined the opportunity to call a lawyer on two occasions after he was advised of his rights to counsel. [20] Finally, with respect to the observation period at the detachment, the Crown takes the position that it was conducted properly. The police officer never saw the accused put anything in his mouth; he never heard the accused burp or belch; and he was in close proximity to the accused. Further, both samples were 100 milligrams of alcohol in 100 millilitres of blood, and the breathalyzer instrument did not detect any mouth alcohol. [21] Defence, for its part, argues that the stop and subsequent detention of the accused was not lawful. Stopping someone “because he drove down goat trail” is not good reason, and the officer’s notes do not provide any other reasons for the stop. Defence further submits the accused’s s. 10(b) Charter rights were violated and relies on Saskatchewan (Attorney General) An[1]. [22] Thirdly, defence takes the position that the observation at the detachment was not properly conducted. The police officer had his back turned to the accused for some two and one half minutes; he actually went to another room for brief time leaving the accused unattended; and, accordingly, having regard to the Court of Queen’s Bench decision in By[2] [By], the Crown cannot rely on the presumption of accuracy in s. 258(1)(c) of the Criminal Code. Analysis 1) On the issue of whether the stop of the accused was lawful I find that it was. [23] The evidence from Constable De Bruin was that he essentially stopped the accused because he had turned off the street he was driving on to what appeared to be “goat trail”. He also testified that he wanted to check for licence, registration and sobriety. [24] Had the only evidence been that the accused was stopped because he turned off to road that resembled “goat trail”, and nothing more, defence’s position would have been stronger. Here, however, we also have evidence that Constable De Bruin wished to check for licence, registration and sobriety. [25] Section 209.1(1) of The Traffic Safety Act, SS 2004, T-18.1 [Act], authorized Constable De Bruin to stop Mr. Weese. Section 209.1(2) imposed an obligation on the driver to answer police officer’s questions with respect to the driver’s identity, address, birth date and whether the driver consumed any alcohol or drug which could affect the driver’s ability to safely operate motor vehicle. [26] Therefore, even if the “random stop” aspect of the Act violates s. of the Charter, it, nonetheless, is justified as reasonable limit pursuant to s. of the Charter.[3] [27] Orbanski[4] [Orbanski] gives police the authority to question driver about his alcohol consumption within the context of random stop authorised by the provisions of the Act. [28] On the issue of whether the accused was deprived of his s. 10(b) Charter rights while awaiting to provide sample into the approved screening device, find that he was not. [29] For while it is true that when roadside demand is made the driver is detained and as such his s. 10 Charter rights would be triggered, it does not follow that breach occurs when valid demand is made pursuant to s. 254(2) of the Criminal Code, as that is viewed as reasonable limit prescribed by law and justified under s. of the Charter.[5] [30] In Orbanski, supra, the Supreme Court held that if the demand is made forthwith, the right to counsel is suspended not only after, but before the demand. In paragraph 52 of Orbanski Charron J. states as follows: In my view, it logically follows from Thomsen that limit on the right to counsel is also prescribed during the roadside screening techniques utilized in these cases. If limit on the right to counsel is prescribed during compliance with s. 254(2) demand for sample for analysis in the roadside screening device, then the limit must necessarily be prescribed during the screening measures preceding the demand, conducted with the very objective of determining whether there is reasonable suspicion justifying the demand. [31] Defence relied on our Court of Queen’s Bench decision in An to support its argument that the accused’s s. 10(b) rights were violated. [32] In my view, An does not stand for the proposition that an accused’s s. 10(b) Charter rights must be implemented at roadside during the screening techniques in every instance. The facts in An are materially different from the facts in this case and are clearly distinguishable. [33] In An the police officer did not have the ASD with him and it was unclear when it would arrive. During this detention period, Mr. An used his cell phone to call his workplace. He also wanted to call his sister who was lawyer, but was not allowed to do so. In An the police officer was not in position to take the breath sample forthwith and could not know when the ASD would become available. Throughout, the police officer in An did not act with any sense of purpose or urgency. [34] This was not the case here. Constable De Bruin had the ASD with him and was ready to administer it forthwith and the reason he waited was because the accused advised him that he had just drank his last beer five minutes before the was stopped. Our Court of Queen’s Bench just recently held that it was incumbent on police officer to ask when the accused had his last drink and to delay the ASD test to ensure that 15 minutes had elapsed.[6] [35] Further, the accused in this case did not attempt to call anyone nor did he ask permission to do so. When he was advised of his rights to counsel after his arrest and demand for breath sample he declined to do so on two occasions. [36] Justice Barrington-Foote in An canvassed various decision of other courts on this issue and concluded at paragraph 45 as follows: These cases demonstrate that the question of whether the police must implement detainee’s s. 10(b) right at the roadside turns on the facts. non‑exhaustive list of the factors that courts have referred to includes the following: Did the police officer reasonably expect that the ASD would arrive before the detainee had reasonable opportunity to exercise his or her rights? Was phone readily available, and if so, did the officer know? Was it possible to provide the accused with privacy? What was the time of day? How much time actually elapsed between the time of the demand and the arrival of the ASD, the arrival of the ASD and the administration of the test? Did the detainee say he or she did not wish to call counsel at the roadside: Veikle, 2016 SKQB 173 (CanLII)? [37] Based on the above, find that the accused’s s. 10(b) Charter rights were not violated. However, even if they were, am of the view that following the Grant Analysis, the breach was of such minor nature as not to favour exclusion pursuant to s. 24(2) of the Charter. 2) Was the observation period at the detachment conducted properly? [38] The Crown takes the position that the observation was conducted properly. The police officer was in close proximity to the accused, and, further, did not hear the accused burp or belch at any time during the time he was observed. As such the Crown is entitled to the presumption of accuracy as per s. 258(1)(c) of the Criminal Code. [39] Defence relies on the By decision and submits that since the observation period was not properly conducted the Crown cannot rely on the presumption. [40] Defence Exhibit D-2, the Rosetown detachment cell block video, shows that the police officer had his back turned to the accused for approximately 2½ minutes. During that time he was attending to some paperwork on the counter and did not appear to be paying much attention to the accused. At one point he actually left the hallway where the accused was sitting to go to another room. The video had no audio component to it, and Constable De Bruin agreed during cross-examination that burp could be silent. [41] While it is true that is not necessary that the police officer look “eyeball to eyeball” at the accused for the entire duration of the observation period, it is necessary that he pay careful attention to the accused and closely observe his behaviour. Close proximity, without more, is not sufficient to constitute proper observation. [42] There is sufficient factual similarity between By and this case that it cannot be distinguished on the facts. In both cases the police officer was attending to other tasks and not focussing on the accused. In both cases the police officer was actually absent for period of time from the accused’s presence. [43] Based on the above, I find that the observation period was not conducted properly. According to By, if it is established that the observation period was not properly conducted, then that constitutes evidence that the breathalyzer test was not properly administered, for By holds that the observation period comprises part and parcel of the breath test itself. [44] Being bound by the decision in By, I find that the Crown cannot rely on the presumption of accuracy and rely on the accuracy of the readings on the Certificate of Qualified Technician. [45] Accordingly, I find the accused not guilty of count 2, over .08. The evidence does not support a finding of guilt on count #1. M.M. Baniak, [1] 2016 SKQB 378 (CanLII) [2] 2015 SKQB 86 (CanLII) [3] Ladouceur, 1990 CanLII 108 (SCC), [1990] [4] 2005 SCC 37 (CanLII) [5] Thomsen (1988), 1988 CanLII 73 (SCC), 40 CCC (3d) 411 (SCC) [6] Schlecter R, 2017 SKQB 189 (CanLII)

HELD: The accused was not guilty of either charge. Although the accused was lawfully stopped, the roadside demand was valid and the accused declined to exercise his right to counsel on two occasions following his arrest, the observation period at the detachment was not conducted properly. The officer was sometimes focused on other things. As the observation period comprised part and parcel of a breath test, the breathalyzer test was not properly administered and the Crown could not rely on the accuracy of the readings.

d_2017skpc77.txt

J. _Q.B. A.D. 1994 No. 2583 J.C.S. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: PCL CONSTRUCTION MANAGEMENT INC. and LES MILLS and KEN JOHNSTON, on behalf of themselves and all members of Canadian Union of Public Employees, Local 47, and DAVE TAYLOR and LOIS LAMON, on behalf of themselves and all members of Canadian Union of Public Employees, Local 59, and STEVE SAUNDERS and PAT HYDE, on behalf of themselves and all members of International Brotherhood of Electrical Workers, Local 319, and DAN BICHEL and PETER PERERA, on behalf of themselves and all members of Amalgamated Transit Union, Local 515, DEFENDANTS RESPONDENTS L.F. Seiferling, Q.C., J.E. Seibel for the applicant plaintiff and S.R. Spencer N. R. McLeod for all of the respondents defendants JUDGMENT GROTSKY J. August 26, 1994 At the conclusion of the hearing of this applicationon August 23, 1994, I reserved my decision thereon andindicated that reasons for my decision would follow shortly;and, that pending my said reasons, the interim injunctiongranted by me on August 19, 1994 would continue. These are those reasons. PRELIMINARY OBSERVATIONS On August 17, 1994, at the request of counsel for the applicant granted an order ex parte abridging the time for the service and return of the notice of motion respecting the within application and, inter alia, subject to compliance with my express directions for service of copy of said order, said notice of motion, and the materials filed in support thereof, gave leave to the applicant to make said motion returnable for hearing at o'clock in the afternoon of August 19, 1994. On August 19, 1994, at o'clock in the afternoon, inquired of counsel for the respondents as to whether he had any preliminary objections or matters to raise to me in connection with the subject application. He advised that he had no preliminary objections or applications and clearly advised that he was unequivocally appearing on behalf of each of the respondents. When inquired of counsel for said respondents as to whether he, in view of the short notice authorized by me for the return of said motion, required an adjournment for any purpose including for the purpose of seeking further advice in the matter and/or for the purpose of preparing, serving, and filing any material(s) in response to those filed, and served, in support of the present application he advised that he did not, and further, that he was prepared to proceed with the hearing of the application. then heard from learned counsel for the applicant. After hearing (in part) from learned counsel for the applicant the hearing was adjourned for short period of time (at my suggestion, as was of the view that counsel for the respondents was obviously not aware of or fully appreciating certain submissions then being made by learned counsel for the applicant, and which appeared to be founded upon, and supported in part by, videotape which had been exhibited to the affidavit of one Abdel Wahab filed for use on the noted ex parte application to me, and which was now part of the materials being relied upon by the applicant on this application, and which had obviously not been viewed by counsel for the respondents albeit copies of said affidavit of said Abdel Wahab had been served on the respondents along with the notice of motion so that they and their counsel ought to have been aware of said videotape and of its contents to the extent deposed to by said Abdel Wahab) so as to permit counsel for the respondents and the respondents present in chambers to view said videotape so as to afford them every opportunity to properly prepare for the subject application. This application was then adjourned, for that purpose, for the period of time requested by counsel for the respondents. After viewing said videotape, or so much thereof as he, and his clients, were able to view during the noted adjournment, counsel for the respondents requested further adjournment of the subject application (which was opposed by learned counsel for the applicant on the ground that counsel for the respondents had earlier been offered and refused an adjournment in consequence of which learned counsel for the applicant then embarked upon his submission) to August 22, 1994, so that in the interim he, and the respondents could view fully said videotape, and prepare, serve and file materials, if so advised, in opposition to the application. Notwithstanding the objection thereto by learned counsel for the applicant, as (1) the respondents were by my ex parte order given very short notice and (2) there was no suggested prejudice to the applicant if such adjournment was granted on terms, I, on specific terms, adjourned the application to be further dealt with at the hour of 10 o'clock in the forenoon of August 22, 1994, or to any subsequent date and time as may be arranged with me by counsel through the office of the local registrar of this Court and leave was given to counsel for the respondents, as an officer of the court, and with the consent of counsel for the applicant, to remove and protect said videotape for the noted viewing purposes and for its return by 10:00 a.m. on August 22, 1994 to the local registrar of this Court. Leave was also given to the respondents, if so advised, to file and serve materials in response to this application, and, if the applicant was so served, then it too was given leave to file and serve materials in response thereto. NATURE OF PRESENT APPLICATION The applicant seeks orders as follows: 1. An interim and interlocutory injunctionrestraining the Defendants, LES MILLS, KENJOHNSTON, DAVE TAYLOR, LOIS LAMON, STEVESAUNDERS, PAT HYDE, DAN BICHEL, PETERPERERA, THE CANADIAN UNION OF PUBLICEMPLOYEES, LOCAL 47, THE CANADIAN UNION OFPUBLIC EMPLOYEES, LOCAL 59, THEINTERNATIONAL BROTHERHOOD OF ELECTRICALWORKERS, LOCAL 319, and THE AMALGAMATEDTRANSIT UNION, LOCAL 615, and all agents,officers, representatives and members ofthe Unions and any person acting on orunder their instructions or authorizationand any other person having notice of thisorder until the trial of this action from: (a) besetting, watching or picketing theConstruction Site and Entrance theretoadjacent to Whiteswan Drive and the H.M.Weir Pollution Control Plant at 470Whiteswan Drive, Saskatoon, Saskatchewan,and legally described as follows: All that portion of NE 1/4-14-37-5-W3rd which lies to the left bank of the South Saskatchewan River as shown on plan of survey of said township dated January 17, 1895, and containing 62.60 acres, more or less, except that part taken by Plan of Survey 78-S-15186. ("the Construction Site") (b) from blocking or obstructing access to and exit from the Construction Site or from interfering with the Construction Entrance to the Site; (c) from interfering or attempting to interfere with, intimidating or attempting to intimidate or inducing or attempting to induce breaches of contract by any employees, agents, suppliers or contractors of the Plaintiff, or any other persons seeking peaceful entrance or exit from the Construction Site; (d) from picketing, parading or congregating at or near the Construction Site; (e) from interfering or attempting to interfere with the performance of the Plaintiff's construction contract; (f) from taking any action designed to or having the effect of inducing breach of contract between the Plaintiff and any of its servants, employees, subcontractors or suppliers; (g) from aiding, abetting, counselling, procuring or encouraging in any manner whatsoever, whether directly or indirectly, any other person to commit the aforesaid acts; (h) from obstructing, interrupting or interfering with the lawful use and improvement of the Construction Site and Entrance by the Plaintiff; 2. Costs of this application; 3. Such further and other relief as this Honourable Court may deem just and equitable. The grounds upon which this application is founded, as stated and set forth in the applicant's notice of motion, 1. The acts complained of are illegal and have caused and continue to cause loss and damage to the Plaintiff, including damage of an irreparable nature; 2. It is just and equitable in all the circumstances that the injunction be granted. THE MATERIALS FILED IN SUPPORT OF THIS APPLICATION INCLUDE: 1. The statement of claim issued in this action on the 17th day of August, A.D. 1994 with proofs of service thereof; 2. The ex parte order granted by me to the applicant on the 17th day of August, A.D. 1994, abridging the time for the service and return of the notice of motion herein on the 19th day of August, A.D. 1994, with proofs of service thereof; 3. The notice of motion returnable on August 19, 1994, with proofs of service thereof; 4. The affidavits filed in support of said ex parte application and, as well, in support of said notice of motion with proofs of service thereof: a.The affidavit of Ron Wurm, the applicant's site superintendent with respect to the construction project hereinafter referred to and, deposed to by him on August 17, 1994 together with the exhibits thereto with proofs of service thereof; b.The affidavit of Tim Sedgewick, the applicant's project engineer with respect to the said construction project hereinafter referred to and, deposed to by him on the 17th day of August, 1994, with proofs of service thereof; c.The affidavit of Shelley Chirpilo, the personnel director of the said City of Saskatoon deposed to by her on the 17th day of August, 1994, with proofs of service thereof; d.The affidavit of Kim Ethier who is employed as an office clerk in the office of Coram Construction at its office at the Construction Site hereinafter referred to and deposed to by him on August 17, 1994, with proofs of service thereof; e.The affidavit of Abdel Wahab, security guard at the Construction Site hereinafter referred to together with the videotape exhibited thereto and deposed to by him on August 17, 1994, with proofs of service of said affidavit; f.The applicant's undertaking as to damages with proofs of service thereof; g.The affidavit of Gerald Wudrich, "management" employee of the City of Saskatoon deposed to by him on August 19, 1994, in response to an affidavit deposed to by one Brad Chant on the 19th day of August, 1994, and filed on behalf of the defendants in opposition to this application; h.The affidavit of Gene Macwillie, "management" employee of the City of Saskatoon deposed to by him on August 19, 1994, in response to the said affidavit deposed to by said Brad Chant; i.The affidavit of C. P. Hwang, "management" employee of the City of Saskatoon deposed to by him on August 19, 1994, in response to the said affidavit deposed to by said Brad Chant; j.The supplementary affidavit of said Ron Wurm deposed to by him on August 19, 1994, in response to the said affidavit deposed to by said Brad Chant and, as well, in response to an affidavit deposed to by the defendant Ken Johnston on the 19th day of August, 1994; k.The supplementary affidavit of said Tim Sedgewick deposed to by him on August 19, 1994, in response to said affidavit of said Brad Chant. Where any of the allegations contained in the foregoing affidavits are founded upon hearsay evidence and thereby violate the provisions of s. 45.20(2) of The Queen's Bench Act, R.S.S. 1978, c. Q-1, as amended, said allegations have not been considered by me on this application. THE MATERIALS FILED IN OPPOSITION TO THIS APPLICATION CONSIST OF: 1. An affidavit deposed to by the defendant, Ken Johnston, vice-president of the defendant, Canadian Union of Public Employees, Local 47, on August 19, 1994; 2. An affidavit deposed to by said Brad Chant on August 19, 1994, who therein identified himself as an employee of the City of Saskatoon and member of the Canadian Union of Public Employees, Local 47, in response to the contents of the original affidavit deposed to by said Ron Wurm, supra; and 3. An affidavit deposed to by the defendant, Les Mills, president of the defendant, Canadian Union of Public Employees, Local 47, on August 23, 1994. It is here significant to observe that notwithstanding the respondents were given an adjournment with leave to serve and file materials if so advised, except for said affidavits above referred to, they have not filed any materials disputing numerous of the substantial allegations deposed to by various of the noted affiants and specifically of various substantive matters deposed to by said Abdel Wahab as supported by the videotape exhibited thereto, or, to my satisfaction, to the very serious and substantial allegations, which accept, contained in paras. 11 and 12 of the said affidavit deposed to by said Ron Wurm on August 17, 1994, which read as follows: 11. On Monday, August 15, 1994: (a) At approximately 8:45 a.m. arrived at the Construction Entrance and waited in line to gain entrance. There were several vehicles in front of and behind me waiting to enter stretching onto Whiteswan Drive, and could also observe several vehicles waiting at the Construction Entrance to exit from the Construction Site; (b) All of these vehicles were prevented for at least several minutes from moving through the gates and on the road across the boulevard by massing of approximately 15 picketers, many wearing signs similar to those described in paragraph hereof. Such signs definitely depicted affiliation with Local 47, but cannot recall what other group or groups may have been identified; (c) observed that the lead vehicle in each of the entry and exit line-ups was prevented from driving on the boulevard road between Whiteswan Drive and the gates of the Construction Entrance for about to minutes, and, therefore, how long vehicle had to wait depended how far back it was in line; (d) When had reached the point in line where was the leading vehicle awaiting entry, was prevented from entering because several picketers continuously walked in front of my vehicle, and at times one or more would stand stock still in front of me, so that there was never an opening in the mass of picketers through which could drive; (e) estimate that was held up for approximately 10 to 15 minutes in the line up before gaining entry; (f) One picketer wearing white shirt with logo bearing the word "BLUE" in three directions on its front and carrying picket sign with long wooden handle walked in front of my truck from the driver's side to the passenger's side headlight, made gesture as if to strike the front right corner of my truck, then turned, walked back past the front of my truck, and as he was just past the front driver's side fender, he swung the sign and used the wooden handle to strike the fender. was then allowed to drive through the gates. Just inside the gates stopped and got out of my truck. noted that there was damage to the truck fender where observed the picketer strike the truck. This picketer has been identified to me by Tim Sedgewick as one Brad Chant. have reported the incident and damage to the Saskatoon City Police. 12. arrived at the Construction Site on Tuesday, August 16, 1994, at approximately 6:30 a.m., and there was mass of picketers present at the Construction Entrance, many of whom carried signs identifying affiliation with Local 615. At that time took series of photographs. Five such photographs are attached hereto as Exhibit "B". The picketers were obstructing the entrance of the Plaintiff's employees to the Construction Site for up to 20 minutes. In fact, the Plaintiff already had two loads of concrete waiting on site for the Plaintiff's concrete finisher employees who were prevented from entering the Construction Site for approximately one- half hour. As well, it is here also appropriate to observe that by paras. 4, and 10 of the affidavit deposed to by said Les Mills, supra, he unequivocally acknowledges (and, on the whole of the evidence before me on this application, accept the following portions thereof) as follows: 4. That there is no question that picketing has taken place at the entrance to the construction site adjacent to the pollution control plant, and have been frequently picketer at that location. 6. That there have been an (sic) number of instances where trucks have arrived with supplies for the construction site, and there is no question that those trucks have been delayed by the presence of picket line. 10. That in reference to the Affidavit of Mr. Wahab, paragraph 7, there were baseball bats brought to the picketing site. On the basis of the materials before me on this application am satisfied that the salient facts, which accept, may be thus summarized: 1. The applicant is body corporate duly licensed and authorized to carry on its business as general contractor in the Province of Saskatchewan with offices at the Cities of Saskatoon and Regina in said Province; 2. The applicant has contract with the City of Saskatoon to perform construction at construction project ("the Construction Site") adjacent to the said City's H. M. Weir Pollution Control Plant situated at or near 470 Whiteswan Drive in said City; 3. The Construction Site is fully enclosed by chain link security fence; 4. The Construction Site entrance is an entrance to said Construction Site only and is separate and apart from the main entrance to the said City's existing facilities at the said H. M. Weir Pollution Control Plant which is south of the said Construction Site entrance; 5. As at the date of this application said Construction Site entrance is used only by the applicant, its employees, its subcontractors, its suppliers, its agents, its patrons and customers and their respective employees; 6. The works being constructed on said Construction Site are not in operation and there are no employees of said City engaged in the construction work being carried on on said 7. The Construction Site entrance is not used by employees of said City to attend at the operating facilities of said H. M. Weir Pollution Control Plant; 8. The City of Saskatoon is presently involved in labour dispute with number of its employees and the Unions representing the said employees; 9. Neither the applicant, or any of its subcontractors, has labour dispute with any of their employees working on said Construction Site; 10. The Construction Site has its own entrance thereto for use by the construction workers employed thereon. 11. Employees of the said City have no reason to work, or to be, on said Construction Site; 12. Picket lines have been set up at the said Construction Site entrance by persons involved in said City of Saskatoon labour dispute thereby causing disruption of the applicant's construction project. Specifically, and without limiting the generality of the foregoing: a. On each working day from the morning of Monday, August 8, 1994 to and including Tuesday, August 16, 1994, picketers were located on and adjacent to the road across the strip of land between said Whiteswan Drive and the gates of said Construction Site entrance; b. On each working day from the morning of Monday, August 8, 1994 to and including Tuesday, August 16, 1994, persons lawfully seeking to access and, as well, exit from said Construction Site have been prevented from so doing by picketers who were in motion and who either continuously walked in front of the vehicles being operated by said persons and/or at times stood stock still in front of said vehicles at the said Construction Site entrance/ exit. Some vehicles were held up for periods of up to 10 or 15 minutes, or more; c. Suppliers (and deliverers) of materials required by the applicant for the performance of its noted contract with the City have refused to cross said picket line(s) to deliver the said materials to said Construction Site; d. The delays, caused by said picketers, in the arrival of construction workers, equipment and materials required therefor, have resulted in delays of said construction work thereby interfering with the plaintiff's performance of its contract with said City, and with its contracts with its own subcontractors and suppliers; e. On one occasion one of the picketers swung wooden picket sign at truck lawfully attempting to enter said Construction Site, struck one of its fenders, and caused damage to it; f. At times picketers have jumped on to vehicles attempting to enter and/or exit said Construction Site and by placing their picket signs over the windshield have obstructed the vision of the operators thereof; g. At times picketers have addressed intimidating language towards the operators of vehicles attempting to enter and/or exit said Construction Site; h. On one occasion picketer took photograph of the license plate of the motor vehicle belonging to said Abdel Wahab and by his language Wahab understood said person to be advising him that "This is going to be useful for the future." THE APPLICANT'S POSITION The applicant submits that in the particular circumstances, the picketing of the subject Construction Site by the specifically named respondents, and by the Union respondents' respective members, agents, officers, representatives and by every other person acting on or under their instructions or authorization: a. amounts to secondary picketing and is unlawful; b. alternatively, even if it is determined that the subject picketing is not secondary picketing, its purpose, as disclosed by the evidence, is unlawful, and ought not to be permitted; c. in the further alternative, if it should be determined that the subject picketing is not secondary picketing and unlawful, but that only the mode of the subject picketing is unlawful, an order ought to issue eliminating those unlawful and/or improper elements of said mode of picketing and particularly prohibiting mass picketing, blocking of the entrance to and exit from said Construction Site and any coercion or intimidation by words or actions or otherwise by the said respondents and their respective agents, officers, representatives and members. THE RESPONDENTS' POSITIONS The respondents each submit that they are not engaged in secondary picketing. That they, their respective agents, officers, representatives and members are engaged in lawful picketing of the subject Construction Site. That, as expressed by said Les Mills in para. 12 of the affidavit deposed to by him on August 23, 1994, supra: Our members need the opportunity to picket in order to communicate their dissatisfaction with this labour dispute and to feel that they are effectively making their point to those individuals who now carry out the work. It should here be observed that except for the affidavits deposed to by Messrs. Ken Johnston, Brad Chant and Les Mills, supra, on behalf of themselves, and Canadian Union of Public Employees, Local 47, none of the other respondents have filed any materials in opposition to this application and the submissions above referred to as being made on their behalf are merely submissions by their counsel none of which are supported by any evidence. ISSUE NUMBER Is the subject picketing secondary picketing as isalleged by the applicant? Picketing of an employer not directly involved in labour dispute has been found to be illegal per se even if conducted in peaceful manner and solely for the purpose of communicating information. Vide: Hersees of Woodstock Ltd. v. Goldstein et al., 1963 CanLII 151 (ON CA), [1963] O.R. 81 (Ont. C.A.); Heather Hill Appliances Ltd. v. McCormack, (1964-65) C.L.L.C. 264, para. 14,083 (Ont. H.C.); Toronto Harbour Commissioners v. Sninsky, (1967-69) C.L.L.C. 313, para. 14,065 (Ont. H.C.) and Edinburgh Developers Ltd. et al. v. Vanderlaan, Sentes et al., 1974 ALTASCAD 31 (CanLII), [1974] W.W.R. 481 (Alta. S.C.). In Hersees, supra, the employees of manufacturer were picketing an independent retailer of the said manufacturer's products. The Ontario Court of Appeal considered the circumstances and determined that any justification that the picketers may raise for their attempt to advance their cause in their relationship with their employer did not warrant the harm that their conduct would bring to the retailer's business. The court stated at p. 86: But even assuming that the picketing carried on by the respondents was lawful in the sense that it was merely peaceful picketing for the purpose only of communicating information, think it should be restrained. Appellant has right lawfully to engage in its business of retailing merchandise to the public. In the City of Woodstock where that business is being carried on, the picketing for the reasons already stated, has caused or is likely to cause damage to the appellant. Therefore, the right, if there be such right, of the respondents to engage in secondary picketing of appellant's premises must give way to appellant's right to trade; the former, assuming it to be legal right, is exercised for the benefit of particular class only while the latter is right far more fundamental and of far greater importance, in my view, as one which in its exercise affects and is for the benefit of the community at large. If the law is to serve its purpose then in civil matters just as in matters within the realm of the criminal law, the interests of the community at large must be held to transcend those of the individual or particular group of individuals. have been unable to find clear and unequivocal precedent for this principle in any of the numerous decisions at all relevant to the question, to be found anywhere in Canada. The court went on to conclude at p. 88: On the other hand these condemnations of the secondary picketing as being illegal do not appear in context which suggests that they are based upon the inclusion in the picketing of the extrinsic unlawful elements mentioned elsewhere in the judgments and view them as declaring secondary picketing to be illegal per se. Upon this ground also would restrain the respondents. (emphasis added) In Heather Hill, supra, Stewart J. held that notwithstanding the picketing at issue was without incident, it was secondary picketing and unlawful in itself. He states at p. 264 as follows: It is important therefore to recognize the completely different aspect that picketing has now assumed, and to accept the fact that damage will be suffered by the person who is picketed. In Toronto Harbour, supra, Stark J. cited Hersees and Heather Hill, supra, and stated at p. 313: it must now be taken to be the law of Ontario that picketing, however peaceful, of the premises of an employer, where there is no direct dispute between him and the picketers or between him and his employees, is per se unlawful and cannot be justified merely because the picketers are engaged in legal strike against another employer who has business relations with the employer being picketed. That is the situation in this case. (emphasis added) accept and adopt the views expressed by Stark J. in Toronto Harbour, supra. The Alberta Court of Appeal too in Edinburgh Developers, per Clement, J.A. clearly accepted that secondary picketing is unlawful per se. The Supreme Court of Canada has also addressed the issue of secondary picketing. In A. L. Patchett Sons Ltd. v. Pacific Great Eastern Railroad Company, 1959 CanLII 41 (SCC), [1959] S.C.R. 271 (S.C.C.) the plaintiff sought damages from the defendant on the basis of breach of statutory duty owed to it by the defendant by reason of its failure to provide cars when the defendant's union employees refused to cross picket line set up around the appellant plaintiff's plant. While in this case the issue of secondary picketing was only addressed by way of obiter, Rand J. at p. 277 appears to have been of the view that secondary picketing was illegal per se, for he is reported as follows: There was, in fact, no labour dispute between the I.W.A. and the appellant and the picketting was illegal. (emphasis added) and Rand J. went on to say: If the appellant had asserted its unquestioned rights, the root of the trouble (the picketers) would have been removed as it was by the immediate and voluntary withdrawal of the pickets when on November an interim injunction against the respondent was obtained; direct move against the pickets by the appellant could not have had less effect than that indirect action. (emphasis added) The issue of secondary picketing was again visited by the Supreme Court of Canada in Retail, Wholesale and Department Store Union, Local 580, Peterson and Alexander v. Dolphin Delivery Ltd. et al., 1986 CanLII (SCC), [1987] W.W.R. 577 (S.C.C.). Although the ratio decidendi of this case relates to the application of the Canadian Charter of Rights and Freedoms to private litigants, the facts related to secondary picketing and resulted in detailed discussion of the issue of secondary picketing by McIntyre J. on behalf of the majority of the court. At pp. 591-593 he is reported as follows: From the evidence, it may well be said that the concern of the respondent is pressing and substantial. It will suffer economically in the absence of an injunction to restrain picketing. On the other hand, the injunction has imposed limitation upon Charter freedom. balance between the two competing concerns must be found. It may be argued that the concern of the respondent regarding economic loss would not be sufficient to constitute reasonable limitation on the right of freedom of expression, but there is another basis upon which the respondent's position may be supported. This case involves secondary picketing picketing of third party not concerned in the dispute which underlies the picketing. The basis of our system of collective bargaining is the proposition that the parties themselves should, wherever possible, work out their own agreement. Professor Weiler in Reconcilable Differences, Toronto (1980), at pp. 64-65, states: The basic assumption of our industrial relations system is the notion of freedom of contract between the union and the employer. There are powerful arguments in favour of that policy of freedom of contract. We are dealing with the terms and conditions under which labour will be purchased by employers and will be provided by employees. The immediate parties know best what are the economic circumstances of their relationship, what are their non-economic priorities and concerns, what trade-offs are likely to be most satisfactory to their respective constituencies. General legal standards formulated by government bureaucrats are likely to fit like procrustean bed across the variety and nuances of individual employment situations The freedom to agree logically entails the right to disagree, to fail to reach an acceptable compromise. Most of the time good faith negotiation does produce settlement at the bargaining table, often without great deal of trouble. But often enough it does not; and of course it is the failures which generate the visible tumult and shouting. And at that point the collective bargaining system diverges sharply from other components in the market economy. When the parties do exercise the right to disagree, picketing and other forms of industrial conflict are likely to follow. The social cost is great, man-hours and wages are lost, production and services will be disrupted, and general tensions within the community may be heightened. Such industrial conflict may be tolerated by society but only as an inevitable corollary to the collective bargaining process. It is therefore necessary in the general social interest that picketing be regulated and sometimes limited. It is reasonable to restrain picketing so that the conflict will not escalate beyond the actual parties. While picketing is, no doubt, legislative weapon to be employed in labour dispute by the employees against their employer, it should not be permitted to harm others. Weiler, at p. 80, again comments: strike action is legal only in order to resolve dispute with an employer about the negotiation of new collective agreement. Logically picket line should be legitimate only on such an occasion. As well the only permissible target of the picket line should be the primary employer that employer with whom the union is negotiating and whom it is trying to compel to make favourable concessions in order to settle the agreement. Putting it the other way, unions should not be permitted to picket the business of third party. Such secondary employer is not involved in the primary dispute, it does not have it within its power to make the concessions that will settle the new contract, and thus it should not be the target of weapon whose legitimate purpose is to extract such economic concessions. It should be noted here that in the province of British Columbia secondary picketing of the nature involved in this case, save for the picketing of allies of the employer, has been made unlawful by the combined effect of of ss. 85(3) and 88 of the British Columbia Labour Code, R.S.B.C. 1979, c. 212, as amended. This statute, of course, does not apply in this case, but it is indicative of the legislative policy, in respect of the regulation of picketing in that province. It shows that the application of s. of the Charter to sustain the limitation imposed by the common law would be consistent with legislative policy in British Columbia. would say that the requirement of proportionality is also met, particularly when it is recalled that this is an interim injunction effective only until trial, when the issues may be more fully canvassed on fuller evidence. It is my opinion then that limitation on secondary picketing against third party, that is, non-ally, would be reasonable limit in the facts of this case. would therefore conclude that the injunction is "a reasonable limit prescribed by law which can be demonstrably justified in free and democratic society". (emphasis added) have also read and considered the following authorities: Garry v. Sherritt Gordon Mines Ltd., [1988] W.W.R. 289, 1987 CanLII 4897 (SK CA), 59 Sask. R. 104 (Sask. C.A.); the unreported fiat of my brother Noble J. in Realty Ltd. and Clearlite Glass Ltd. v. Greg Zaba and Blair Barilla et al. dated December 31, 1992; PCL Construction Ltd. v. Busch, (1982) 19 Sask. R. 331 (Sask. Q.B.); MacMillan Bloedel (Saskatchewan) Limited v. Powell, Pahlke et al., (1968) 1968 CanLII 511 (SK QB), 66 W.W.R. 269 (Sask. Q.B.); PCL Construction Ltd. v. Klein, (1982) 1982 CanLII 2316 (SK QB), 19 Sask. R. 347 (Sask. Q.B.); Potash Corporation of Saskatchewan Mining Limited v. Todd, Heinrich and Energy and Chemical Workers Union, Local 922, (1987) 1987 CanLII 4918 (SK CA), 53 Sask. R. 165 (Sask. C.A.) and McLean Trucking Company et al. v. Public Service Alliance of Canada, (1985) C.L.L.C. 12,242 at para. 14,046 (B.C.C.A.). CONCLUSIONS WITH RESPECT TO ISSUE NO. Applying the principles enunciated in the cases herein (and therein) specifically referred to, on the whole of the evidence before me on this application am satisfied that the applicant has established that: 1. It is not party to the labour dispute between the City of Saskatoon and various of its employees as represented by the said Union respondents and which includes the persons specifically named herein as defendants respondents; 2. The labour dispute between the City of Saskatoon and its said various employees referred to in para. hereof immediately preceding does not involve anyone employed at or working on said Construction Site; 3. It is in full control of the subject Construction Site; 4. The applicant is secondary employer under contract to said City of Saskatoon to perform the noted construction work at the said Construction Site; 5. The applicant is without any ability to settle the existing labour dispute between said City of Saskatoon and its striking employees, including said respondents and/or the said City's employees represented by them or either of them; and that, in the particular circumstances, the respondents, theirrespective agents, officers, representatives and all otherpersons acting upon or under their respective instructions orauthority, are engaged in unlawful secondary picketing. In view of my conclusion with respect to said issueno. 1, it is not necessary that I deal with the other issuesraised by this application, other than to observe that, on thebasis of the (admissible) evidence before me on thisapplication, and the principles enunciated in the authoritiesabove (and therein) referred to, if I had determined that thesubject picketing was not secondary picketing, then, in theparticular circumstances I would still have held that thesubject picketing was unlawful, and ought to be restrained,as, on the whole of said evidence I am satisfied that theapplicant has established that said picketing is not beingcarried on for the purpose of lawful communication, but,rather, is being carried on in a manner designed to obstruct,impede and interfere with the lawful performance by theapplicant of its noted construction contract on the subjectConstruction Site. On the whole of the evidence am satisfied that the applicant has raised substantial question to be tried; it has established prima facie case of the violation by the respondents, their respective agents, officers, representatives and all other persons acting upon or under their respective instructions or authority of right or rights that the applicant might have. The applicant has shown more than the mere prospect or apprehension of injury; it has shown that the respondents, and their respective agents, officers, representatives and all other persons acting upon or under their respective instructions in doing that which the applicant alleges is in violation of its rights and that it is suffering in consequence thereof and that such suffering cannot be adequately compensated for by the award of damages in money. Further, that the balance of convenience in the matter favours the applicant. There will, therefore, be an order granting to theapplicant an interim injunction until trial, or until furtherorder, the terms of which are as follows: TERMS OF INTERIM INJUNCTION The respondents, and all agents, officers, representatives and members of said respondent Unions and any person acting on or under their instructions or authorization and any other person having notice of this order are enjoined until the trial of this action, or until further order, from: (a) besetting, watching or picketing the Construction Site and Entrance thereto adjacent to Whiteswan Drive and the H.M. Weir Pollution Control Plant at 470 Whiteswan Drive, Saskatoon, Saskatchewan, and legally described as follows: All that portion of NE 1/4-14-37-5-W3rd which lies to the left bank of the South Saskatchewan River as shown on plan of survey of said township dated January 17, 1895, and containing 62.60 acres, more or less, except that part taken by Plan of Survey 78-S-15186. ("the Construction Site") (b) from blocking or obstructing access to and exit from the Construction Site or from interfering with the Construction Entrance to the Site; (c) from interfering or attempting to interfere with, intimidating or attempting to intimidate or inducing or attempting to induce breaches of contract by any employees, agents, suppliers or contractors of the Plaintiff, or any other persons seeking peaceful entrance or exit from the Construction Site; (d) from picketing, parading or congregating at or near the Construction Site; (e) from interfering or attempting to interfere with the performance of the Plaintiff's construction contract; (f) from taking any action designed to or having the effect of inducing breach of contract between the Plaintiff and any of its servants, employees, subcontractors or suppliers; (g) from aiding, abetting, counselling, procuring or encouraging in any manner whatsoever, whether directly or indirectly, any other person to commit the aforesaid acts; (h) from obstructing, interrupting or interfering with the lawful use and improvement of the Construction Site and Entrance by the Plaintiff. At the request of counsel for the respondents, and with the consent of counsel for the applicant, the issue of costs is reserved with leave to the parties to speak to same on date and time convenient to them and myself and as may be arranged by counsel with me through the office of the local registrar of this Court.

PCL applied for an interlocutory injunction restraining the members of the Defendant unions from picketing the entrance to a construction site at which PCL was constructing an addition to the City's sewage treatment plant. The picketers were completely blocking the entrance to the construction site, were threatening the occupants of vehicles using the entrance and damaged one vehicle as it entered the site. No City employees were working on the site. ISSUES: 1)Is the picketing secondary picketing? 2)Is the manner of picketing unlawful in any event? HELD: Application allowed. 1)Picketing of the premises of an employer, where there is no direct dispute between him and the picketers or between him and his employees, is secondary picketing, is per se unlawful and cannot be jusified merely because the picketers are engaged in a legal strike against another employer who has business relations with the employer being picketed. 2)If the court had determined that the subject picketing was not secondary picketing, then, in the particular circumstances it would still have held that the subject picketing was unlawful, and ought to be restrained, as, on the whole of said evidence it was satisfied that the applicant had established that said picketing was not being carried on for the purpose of lawful communication, but, rather, was being carried on in a manner designed to obstruct, impede and interfere with the lawful performance by the applicant of its construction contract on the construction site.

9_1994canlii4999.txt

R. Green, IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2011 SKPC 089 Date: June 1, 2011 File: 9/10 Location: Yorkton 101093126 Saskatchewan Ltd. (The Whitewood Inn) and BMR Business Systems Ltd. Jeffrey Deagle For the Plaintiff Ms. An For the Defendant JUDGMENT BRENT KLAUSE, [1] The Defendant sold business equipment to the Plaintiff in September of 2007. The Defendant alleges that the equipment sold never worked properly and seeks damages for breach of contract and in the alternative, damages for fraudulent misrepresentation, damages for negligent misrepresentation, damages for unjust enrichment, all in the amount of $20,000.00. [2] The majority of the facts are not in serious dispute. The Plaintiff operates the Whitewood Inn in Whitewood, Saskatchewan and in September of 2007, entered into an agreement with the Defendant to supply and install business equipment at the Inn. [3] The equipment consisted of two groups of computerized business equipment which can be loosely categorized as the “Cash Equipment” and the “Camera Equipment”. The Cash Equipment as its name implies is designed to enter and receive payments for purchases at the Inn, mostly restaurant purchases. The Camera Equipment is designed to provide security and to monitor the actions of the employees of the business. [4] Rod Kletcho was at all times the operating mind of the Defendant and he entered into an agreement with the Plaintiff to supply and install number of pieces of equipment which were to be compatible with each other. The cost of the Cash Equipment was invoiced July 10, 2007, in the amount of $10,939.05 and the cost of the Camera Equipment was invoiced on July 27, 2007, in the amount of $10,983.45. No service contract was ever signed between the Plaintiff and the Defendant. [5] Contemporaneously with this agreement, the Plaintiff entered into financing agreement with Irwin Financial Canada Corporation dated October 31, 2007. Irwin owned all the equipment and amortized the cost back to the Plaintiff over time frame of 66 months at an agreed rate of interest with the monthly payment being $445.11. [6] The equipment was subsequently installed by employees of the Defendant in September and October of 2007. On October 31, 2007, the Plaintiff signed the Equipment Rental Agreement between The Whitewood Inn and Irwin Financial: Exhibit P1 and D1. [7] The last paragraph of that agreement which contains the date of the agreement and the signature of the officers for the Plaintiff states as follows: You have read, understand, and accept this Agreement, including the attached Terms and Conditions, and hereby affirm that you are authorized to execute this Agreement. You agree that facsimile copy of this Agreement with your facsimile signature(s) and Irwin’s original signature shall constitute the original of this Agreement. You further confirm and acknowledge: (1) that the Equipment described in the Equipment Rental Details has been inspected and received in satisfactory condition not more than ten (10) days prior to the date you execute this Certificate; (2) that there are no maintenance, service, or other agreements which attach to this Agreement; (3) that Irwin is not an agent of the Vendor(s) nor manufacturer or distributor, and that the essential element of this Agreement is equipment rental only; and (4) that Irwin is authorized to pay the Vendor(s) for the Equipment and to commence the Agreement on the date to be established by Irwin. [8] In the pleadings of the Plaintiff, he alleges that the Cash Equipment is not working and has never worked properly. This was supported by his testimony in-chief. He testified that the technicians sent by BMR did not know how to successfully install the equipment and that despite repeated efforts by their technicians and repeated calls to BMR, that the equipment was never installed properly and is unusable. [9] The Plaintiff has always made his payments to Irwin Financial and is not in breach of any of his financial obligations to Irwin. When questioned as to why he would sign P1 and D1, and thereby affirm that the equipment was working, he stated that Irwin forced him to sign as he believed that BMR would not come back to finish the installation unless he signed the document and further avers that the document was not true when he signed it. [10] He further testified that he made repeated efforts to have BMR’s technician “Jerry” return to finish the installation and to ensure that all the equipment was working but that at no time did the Cash Equipment work and that to this day, it sits idle. The last contact he had with BMR was early in 2009 and at that time, the Defendant wanted more money to come out and correct the problem. [11] Essentially the Plaintiff feels he has been deceived by the Defendant and that he has not received the product he contracted and has paid for. The lawsuit was commenced January 27, 2010 and the trial heard January 5, 2011. [12] The Defendant agrees that he had business arrangement to supply and install the equipment as described in his invoice of July 2007, but differs with the Plaintiff in many respects. He indicates that as far as he was aware his technicians had installed the equipment and that the Plaintiff was satisfied with the installation as evidenced by his agreement with Irwin. He further indicated that he tried to respond to the Plaintiff’s complaints but that some of the things that the Plaintiff wanted done were not part of any agreement that he had with the Plaintiff (ie. the installation of cable) and that after point in time, the Plaintiff no longer seemed to be interested in following through on his suggestions; essentially the arrangement had fallen apart. [13] He further testified that his technicians were familiar with this equipment and its installation and that it had been done successfully over 150 times and that in this case, as far as he was aware the installation had been successful, and that as part of his arrangements with Irwin, he has to certify to Irwin that it had been installed, the leasing company then confirms the install as was evidenced by the agreement dated October 31, 2007 and then Irwin pays him out his costs. His position is that any further difficulty with the equipment was because of improper use or programming by the Plaintiff and that he cannot be held responsible for that. [14] He further testified that his technician “Jerry” died in January of 2009 of cancer and this makes it nearly impossible to discover what was done or what was said by one of his most competent technicians. It is also his position that former employee of his is now one of his competitors in the business and that he has ‘tinkered” with the equipment he originally installed. It is his position that he tried at all times to make things right with the Plaintiff but that the Plaintiff was difficult to deal with and that he would not try to reach mutually acceptable compromise with the Defendant or his agents. Position of the Plaintiff [15] The Plaintiff’s position is that the Defendant is in breach of the agreement to successfully supply and install the business equipment; that they had continuing agreement until at least the summer of 2009, due to the continuing representations of the Defendant; that P2 is valid written contract between the two parties; and that the Defendant is in fundamental breach of their contract. Position of the Defendant [16] The Defendant’s position is that the claim of the Plaintiff is statute barred as any agreement they had was entered into prior to October of 2007; that there was never any written agreement between the two parties; that they have performed their part of the agreement and are therefore not in breach and that no service agreement was ever entered into between the two parties. [17] There are two questions which are required to be answered: (1) Is this action barred by The Limitations Act? (2) If not, is the Defendant liable for breach of contract or for fraudulent and or negligent misrepresentation or unjust enrichment? [18] In my view there was never valid written contract entered into between the Plaintiff and the Defendant. There was certainly an oral agreement to provide and install certain equipment and the parties had agreed upon price for those services. This was reduced to an invoice which later became the subject of financing agreement and contract between the Plaintiff and Irwin Financial. [19] find that when the Plaintiff entered into that agreement with Irwin in October of 2007, he acknowledged that the equipment was in proper working order and that he was essentially happy with the work that had been done. Why else would responsible adult businessman sign such an agreement? If he was in fact unhappy with the work and the installation which he now says he was, why would he sign this agreement and why would he continue to make payment after payment for equipment that was at best, in his opinion, only working part-time. It makes no sense for business person who can be assumed to routinely enter into complicated business transactions on regular basis to make that sort of error. [20] In my opinion, The Limitations Act, s. and does apply in this situation. Those sections read as follows: Unless otherwise provided in this Act, no proceedings shall be commenced with respect to claim after two years from the day on which the claim is discovered. Unless otherwise provided in this Act and subject to subsection (2), claim is discovered on the day on which the claimant first knew or in the circumstances ought to have known; (a) that the injury, loss or damage has occurred; (b) that the injury, loss or damage appeared to have been caused by or contributed to by an act or omission that is the subject of the claim; (c) that the act or omission that is the subject of the claim appeared to be that of the person against whom the claim is made; and (d) that, having regard to the nature of the injury, loss or damage proceeding would be an appropriate means to seek or remedy it. (2) claimant is presumed to have known of the matters mentioned in clauses 1(a) to (d) on the day on which the act or omission on which the claim is based took place, unless the contrary is proved. [21] Section 18 of the same Act states: 18 If in proceeding, limitation period is raised against claimant, the claimant has the burden of proving that: (a) the limitation period has not expired; or (b) there is no limitation period that applies to the claim. 19 If, after the commencement of proceeding, it is established that limitation period applicable to the claim had expired before the commencement of the proceeding, the claim is barred and the proceeding shall not be maintained. [22] As far as the Defendant knew in October of 2007, the Plaintiff was content with the installation and that the equipment had been properly supplied and tested to his satisfaction. The Plaintiff now claims that he signed that agreement under duress and that to his knowledge, the equipment was not working prior to October 31, 2007. [23] The Limitations Act allows an action to be commenced within two years of the claim being discovered. This claim here was discovered prior to October 31 of 2007, and therefore the Plaintiff had at the latest, until October 31, 2009, to commence his action. His action was not commenced until January of 2010. [24] The Limitations Act sets forth finite period so that the party being sued can properly defend an action. It is precisely the sort of situation that occurred in this case that The Limitations Act is designed to prevent. [25] The Saskatchewan Court of Appeal in Josvanger v. Fold, 2005 SKCA 138 (CanLII), 275 Sask. R.101 at paragraph 20 stated as follows: [20] One of the purposes is that of “Peace and Repose”, which has been described this way: 3.1 “Peace and Repose” It is said that statutes of limitation are acts of “peace” and “repose”. The theory is that, at some point after the occurrence of conduct that might be actionable, defendant is entitled to peace of mind. When period of limitation has expired, potential defendant should be able to assume that he is no longer at risk from stale claim. He should be able to part with his papers if they exist and discard any proofs of witnesses which has been taken; discharge his solicitor if he has been retained; and order his affairs on the basis that his potential liability has gone. That is the whole purpose of the limitation defence. [21] This need to give defendant peace of mind is based on concerns that over time the quality and availability of evidence will diminish and memories will fade. There are also economic and public interest considerations, and there may be judgmental reasons arising from changes in values and standards. [26] Our Supreme Court considered similar issue in Stoddard and Watson, 1993 CanLII 59 (SCC), [1993] S.C.R. 1069 at paragraph 11: 11 This Court recently described the purpose of limitations legislation in M. (K.) v. M. (H.), 1992 CanLII 31 (SCC), [1992] S.C.R. 6. M. (K.) v. M. (H.) was claim for damages for incest brought well after the expiration of the limitation period, even allowing for the plaintiff to reach majority. La Forest J. stated at pp. 29-30: In order to determine the time of accrual of the cause of action in manner consistent with the purposes of The Limitations Act, believe it is helpful to first examine its underlying rationales. There are three, and they may be described as the certainty, evidentiary, and diligence rationales: see Rosenfeld, "The Statute of Limitations [page 1080] Barrier in Childhood Sexual Abuse Cases: The Equitable Estoppel Remedy" (1989), 12 Harv. Women's L.J. 206, at p. 211. Statutes of limitations have long been said to be statutes of repose; see Doe on the demise of Count Duroure v. Jones (1791), T.R. 301, 100 E.R. 1031, and A'Court v. Cross (1825), Bing. 329, 130 E.R. 540. The reasoning is straightforward enough. There comes time, it is said, when potential defendant should be secure in his reasonable expectation that he will not be held to account for ancient obligations ... The second rationale is evidentiary and concerns the desire to foreclose claims based on stale evidence. Once the limitation period has lapsed, the potential defendant should no longer be concerned about the preservation of evidence relevant to the claim ... Finally, plaintiffs are expected to act diligently and not "sleep on their rights"; statutes of limitation are an incentive for plaintiffs to bring suit in timely fashion. While these rationales benefit the potential defendant, the Court also recognised that there must be fairness to the plaintiff as well. Hence, the reasonable discovery rule which prevents the injustice of claim's being statute barred before the plaintiff becomes aware of its existence: Kamloops (City of) v. Nielsen, 1984 CanLII 21 (SCC), [1984] S.C.R. 2; Central Trust Co. v. Rafuse, 1986 CanLII 29 (SCC), [1986] S.C.R. 147; M. (K.) v. M. (H.), supra. limitations scheme must attempt to balance the interests of both sides. [27] In my opinion, both of these Superior Court cases have an instant application to this case and adopt and follow their rationales explicitly. [28] Here the technician who installed the equipment and who had the most direct contact with the Plaintiff is now deceased and cannot offer his opinion or evidence on what occurred past October of 2007. That evidence in my opinion would be critical to the proper defence of this case and that is one reason why this statute was enacted. The mere fact that there was some communication between the parties after that time does not in my opinion help the Plaintiff as there was never service contract entered into between these two parties. The only agreement that they had was to supply and install the equipment - not to maintain, service or reprogram it. Their contract, if it can indeed be termed that was complete by October 31, 2007, when on that date the Plaintiff entered the formal financing agreement with Irwin Financial. [29] If however, I am incorrect in my application of the law in regard to The Limitations Act, I would further find that there was an agreement to supply and install the business equipment but that in my view of the evidence, the Defendant completed his part of the transaction. He supplied and installed the equipment and as far as he was aware, the Plaintiff was satisfied with the work done. He tried to address subsequent complaints but in my opinion, these were outside the parameters of the original agreement as no service contract between the parties existed. [30] I further find there was no material representation and no fraud. The Defendant supplied the equipment that they agreed to provide and in their view, and which accept, installed it correctly. The Plaintiff signed the agreement with Irwin indicating that they were satisfied with that equipment and have had two and half years with the equipment to inspect it or have someone else look at it to establish if anything was wrong with it. Apparently they have not done this and despite continuing to make all the regular payments on that equipment, have done nothing further to ensure that it is working for the purposes for which it was designed. One would assume that if business owner continues to make payments on equipment, that he is content with that equipment. [31] I must conclude from the evidence I have heard that there is no evidence of fraud or any concealment of facts that would allow the Plaintiff’s claim to succeed. There is further no evidence of unjust enrichment. The Defendant supplied the equipment that they agreed to supply and it has been in the exclusive possession of the Plaintiff at all material times. [32] In my opinion, the Plaintiff has not established any element of its case on a balance of probabilities and I therefore must dismiss this action. B.M. Klause,

The plaintiff entered into a verbal agreement for the defendant to supply and install business equipment. The plaintiff alleged that the equipment sold never worked properly and sought damages for breach of contract and, in the alternative, damages for fraudulent misrepresentation, damages for negligent misrepresentation, and damages for unjust enrichment in the amount of $20,000. HELD: The Court dismissed the action as the plaintiff did not establish its case on a balance of probabilities. The Limitations Act applies and the action was barred. The defendant agreed to supply and install the equipment which was done; there was no agreement to maintain, service or reprogram equipment. There was no material misrepresentation or fraud or concealment of facts, nor unjust enrichment.

4_2011skpc89.txt

J. IN THE PROVINCIAL COURT OF SASKATCHEWAN SMEATON, SASKATCHEWAN HER MAJESTY THE QUEEN UPON THE INFORMATION OF MANLEY J.K BURLEIGH, PEACE OFFICER against CALVIN JOHN KLIMEK OF CANDLE LAKE, SASKATCHEWAN ACCUSED Mr. Gary Parker ........................................................................ Crown Prosecutor Mr. Ron Piche ............................................................... Counsel for the Accused Decision B.D. HALDERMAN, P.C.J. April 18, 2000 R. v. Calvin John Klimek S. 264.1 Criminal Code Decision Background and Initial Findings of Fact [1] Calvin John Klimek is charged that on October 12, 1999 at Candle Lake and Prince Albert District he did knowingly utter a threat to Lena Klimek to cause death to Lena Klimek, Merril Klimek and Garry Klimek, contrary to s. 264.1 of the Criminal Code. [2] Lena Klimek, age 77, has lived on a farm approximately 30 km. east of Prince Albert for some 64 years. She is the mother of the Accused Calvin Klimek, age 44. One of Mrs. Klimek’s sons, Merril, lives with her. [3] Adam Klimek, another son of Lena Klimek, had recently passed away, and very bitter family fight had developed over dealings with and entitlement to his rather substantial estate. The Accused, and to some extent one other sister, were in opposition to Lena Klimek and her other children, including Merril Klimek and Garry Klimek. [4] Sometime after 10 a.m. on October 12, 1999 Michael Klimek, age 29, dropped in to visit his grandmother Lena at her farm home. Michael is the son of Merril Klimek. female friend of Lena Klimek’s was there when he arrived, as the two women were preparing to go bowling in Prince Albert. The friend, though present throughout the telephone conversation which forms the basis of the charge before the Court, was not witness at trial. [5] Soon after Michael Klimek arrived the telephone rang and Mrs. Klimek answered it. It is common ground that the Accused was the caller, and that he was calling from his residence about 100 km. away. Calvin Klimek was extremely agitated about the sale of Adam Klimek estate cattle that was taking place at that moment. His voice was very loud, and his speech was full of coarse language. The Accused’s wife, Camille, was present at the Calvin Klimek residence and testified that during the course of the conversation, the Accused became so angry, and his voice was so loud that he woke the baby granddaughter sleeping in the next room. [6] Although Michael Klimek said there were some parts of the conversation he didn’t catch or ceased listening to, he said that he was sitting about four feet from the phone, and that Lena Klimek held the phone away from her ear because the Accused was speaking so loudly. find that Michael Klimek was able to clearly hear those portions of the conversation which he testified to with respect to the alleged threat. [7] Michael Klimek testified that his uncle’s voice was extremely high-tempered about the selling of cattle which was going, that the Accused said everybody at the farm was bunch of liars, that he was going to blow away Lena, Merril and Garry Klimek, and that they would be put in plastic bags. Michael’s interpretation of what Calvin Klimek said was that these three individuals would no longer be living. Michael also heard the Accused say he was coming down to the farm to take some pictures off the walls, and anything else he thought was his. He said his grandmother didn’t talk much during the telephone call, which lasted 10 to 15 minutes. He said he saw fear in his grandmother’s face. Her friend whispered to him couple of times during the course of the conversation that this was “a terrible thing to happen”. He said that at the conclusion of the conversation, Lena wasn’t sure what to do, that she and her friend went to their bowling, that Michael went to the cattle auction to report the incident, and that Garry Klimek immediately called the RCMP. [8] Lena Klimek testified with respect to the phone conversation. She said there was lot of anger in the Accused’s voice, and lot of swear words. The Accused had never spoken to her this way before, she hadn’t expected it, and it was hard to take. She said her friend was “just petrified” and that she, Lena, was “really shook up”. [9] Lena said that the Accused asked her who gave Merril permission to sell the cattle, and that “I will kill that crippled son of bitch”, (referring to Merril who had had back operation), and that “you will all go out in plastic bags”. She testified he said he would come and would take his pictures and his kid’s pictures off the wall, or if not off the wall would smash all the pictures. Lena told him not to come, and he said he would come any damn time he wanted. He further said he would come and bring friend, and they would “clean us all out”. [10] In cross-examination, Lena Klimek agreed that nowhere in her statement to police had she used the word “kill”. She said Calvin probably used both the words “kill” and “get rid of”. She wasn’t sure in her statement to the police whether the Accused had used the words “blow away”. In her evidence, she was adamant that the Accused had spoken of blowing someone away, referring to herself, Merril and Garry. She said she had looked at her statement before testifying, but that she didn’t really need it because it wasn’t hard to remember the gist of what was said. She agreed that she didn’t remember everything that was said during the conversation word for word. She was prepared to say that her memory was better on the stand than at the time she gave her statement to police, “but it was good then too”. [11] In his testimony, Calvin Klimek agreed that during the course of the telephone call, his tone “elevated somewhat”, that he spoke loudly and that he probably did use profane language. He said that this was not the case at the start of the conversation his tone of voice was “concerned”, and he was not yelling. He said that prior to making the call, he had had call from his sister advising him of the imminent sale of cattle, and that he had only made the call to his mother after being advised to do so by his sister, and after telling his wife, daughter and daughter’s fiancé what was happening. He said he had never been verbally abusive to his mother previously although they had had disagreements, they had walked away from them. [12] The Accused testified that he told his mother he was going to come out to the farm and get his belongings, which he estimated were worth $15 $20,000. (On cross-examination, he estimated his net worth at $155,000). He said that he was going to bring someone from the law with him, that she couldn’t sell off the estate assets. He said that by his reference to “the law”, he intended to bring with him Cst. Jim Kidney of the Prince Albert City Police. He said his mother said to him that if he brought the police out, “we’ll shoot them”, and that he said “If you point firearm at them, they’ll shoot you.” In examination-in-chief, he said he did not recall using the words “I will kill you” to his mother, but that he did say that “if you pull gun on policeman they will shoot you”. He also said he said to his mother that “the police will take you away in body bags”. He said he was tired of hearing that the cattle were hers, that his mother spoke very loudly to him, and told him “you’re not wanted here”. In answer to his counsel’s question “Did you say anything you would construe as threat to any of the three, or cause them death”, the Accused answered “No”. [13] In cross-examination, the Accused said that during the telephone conversation, he did not name the police officer, but that the officer would be along to help him get justice. He said that he was taking the officer along so he wouldn’t get shot at. He said his mother had never threatened to shoot him, but that his brothers Merril and Garry had on some occasions threatened to shoot him or to create bodily harm. He initially agreed he had said he wanted to physically cut his family members out of the pictures hanging on his mother’s wall, then denied that he said he wanted to cut them out. He admitted using the words “body bags” in the conversation, and agreed he had used the words “blown away”, but maintained that what he said was “they will probably blow you away”. He believed there was conspiracy amongst the other brothers to get Adam Klimek’s estate for less than it was worth. He would not admit that he “lost it” in talking to his mother. [14] Camille Klimek is the wife of the Accused. They have been married 19 years. As noted above, Camille related how loud the telephone conversation was at her end of the line. She said that as the conversation proceeded, her husband got louder, red in the face, was using profanity, and that “when he starts swearing, he swears”. She heard reference to “bags” but not to body bags. Significantly, her evidence regarding the reference to “getting the law involved” was somewhat different than her husband’s: she said the Accused said he was going to take “Jim” with him, understanding the above-mentioned Jim Kidney. [15] As permitted by s. 12 of the Canada Evidence Act the Accused was questioned as to his criminal record. With respect to an alleged conviction for theft in Saskatoon in 1987, he said it was possible he had been so convicted. He also admitted to number of convictions in the 1970's, including break and enter, possessing stolen credit cards and property, and Narcotic Control Act convictions for trafficking and possession for the purpose of trafficking. He denied having been convicted for certain other offences during the period 1972 to 1987. The convictions denied were not proven by the Crown. Admissibility and Weight to be Given to Evidence of Previous Record: [16] At the point the Crown commenced questioning the Accused on his record, Defence Counsel objected, arguing that the convictions were dated and highly prejudicial. permitted the application, based on s. 12 of the Canada Evidence Act and the case law. [17] It is always open to the Accused to make Corbett application and have ruling on it before electing to call evidence. See R.v. Underwood (1998) 1998 CanLII 839 (SCC), 12 C. R. (5th) 241, per Lamer, C. J.; R.v. Corbett (1988) 1983 CanLII 28 (SCC), 36 C.R. (3rd) (S.C.C.). [18] Most reported cases respecting Corbett applications deal with jury trials, where it is of fundamental importance to keep the jury from hearing potentially-prejudicial evidence until its admissibility is determined. In those situations, voir dire is mandatory, as stated in Underwood., supra, at p. 245. [19] As noted in the very useful annotation by Peter Sankoff at (1994) 12 C. R.(5th) 228 at p. 240 respecting post-Corbett decisions: “... it is worth pointing out that with the jury trial comprising small percentage of the criminal persecutions (sic) in Canada, there has yet to be serious discussion as to whether Corbett has any real application in trial by judge alone. In practice, it seems as if criminal records are tendered as matter of course in non-jury trials, with the assumption made that trial judge can properly ignore the prejudicial effects of the record.[footnote omitted] So long as the prevailing approach in Canada is to have all pre-trial and interlocutory motions heard by the trial judge, there would seem to be little point in raising Corbett application as the evidence will have to be put before the trier of fact in order to get ruling on the motion anyway....” [20] In non-jury trial, it is my view that there is ordinarily no need for the defence to formally make Corbett application, requesting an order excluding evidence of convictions whose prejudicial effect outweighs their probative value. Rather, at whatever point the issue of the Accused’s record is raised (either on formal application prior to calling defence evidence, or when the prosecutor proceeds under s. 12), the duty of the judge sitting alone is to indicate that he is instructing himself that he must not treat the record of the Accused as tending to show that the Accused is the kind of person who would be disposed to commit the offence charged that is, that he must not infer from the record that the Accused has propensity to commit criminal offences. See for example R. v. McIlvride 1979 CanLII 3090 (BC CA), [1979] W. W. R. 93 (B.C.C.A.), where the trial judge wrongly instructed the jury that “having criminal record brands the Accused as an unreliable person to give evidence under oath”. [21] In most cases involving judge alone, (and in this case), the evidence adduced during the Crown’s case, together with the submissions of Defence counsel during or at the close of the case, will enable the judge to properly instruct him or herself without the need for voir dire or the attendant concerns regarding defence disclosure. In the event counsel wishes to specifically draw particular convictions to the Court’s attention, in order to highlight probative or prejudicial effect and consequent inclusion or exclusion from the Court’s consideration, this can ordinarily be done during final argument. [22] In this case, have instructed myself as follows: 1. The Accused’s record may not be taken as tending to show that the Accused has propensity to commit crimes, or that he has criminal disposition; 2. The probative versus prejudicial effect of any particular conviction must be weighed, in the context of preserving the right to fair trial; 3. It is then discretionary whether to include or exclude any particular conviction when considering and weighing the evidence; complete exclusion means that the judge treats the excluded evidence as if he or she never heard it; 4. It is proper for the judge to take into account and have “full picture” of who the Accused is, especially if the Accused in cross-examination has launched strong attack on the Crown witnesses’ credibility, i.e. the ability to tell the truth as opposed to the ability to recall events accurately; 5. Convictions for offences involving dishonesty are ordinarily admissible, as they may especially bear on the assessment of credibility permitted by s. 12 of the Canada Evidence Act. See Corbett, supra, at p. 37, per LaForest, J.; R.v.Saroya (1995) 1994 CanLII 955 (ON CA), 36 C.R.(4th) 253 at p. 257 (Ont.C.A.). [23] In the process of giving his or her decision regarding guilt or innocence, the judge should ordinarily acknowledge the self-instruction regarding the admissibility of prior convictions, and should relate the self-instruction to how and why the discretion to admit or exclude has been exercised. Depending on the length and nature of the record, this may merely necessitate reiteration of the prohibited inferences regarding criminal disposition. The purpose of the exercise is to provide asssurance that the judge has not decided the matter on an improper basis, as in McIlvride, supra, but which because the basis is unstated is immune from review. [24] In the present case, the most recent dishonesty-related conviction to which the Accused admitted was in 1978. The most recent such conviction to which the Accused did not admit but which he said was “possible” was 1987. [25] In R.v. S.G.G. (1997) 1997 CanLII 311 (SCC), C.R.(5th) 198 (S.C.C.), Sopinka, J. (in dissent) said at para. 123: “... when evidence as to disposition is tendered for the purpose of proving guilt, it is logically relevant. It is excluded by reason of our system’s aversion to convicting person charged because he or she is bad person. If an accused could be convicted on the basis of past misconduct which disclosed disposition to commit the offence charged, an old offender might never be able to obtain fair trial on the basis of evidence relating to that charge....” [26] accept the Crown and defence evidence that the Accused is presently in the contracting business. He has been married for 19 years, and has an adult daughter and grandchild. He appears to have built up modest net worth. In my view, where there is lengthy period (in this case 12 years, or 22 years if the alleged 1987 conviction is excluded) between the date of the alleged offence and the last conviction, the Court should look charily at admitting such convictions or giving them any probative value whatever. Common experience suggests that for many people convicted in their younger years, rehabilitation occurs and many such individuals become honest law-abiding citizens. Absent evidence to the contrary, their dated criminal past should not be prejudicially used against them forever. [27] Given the age of the record, and the above-noted factors, have concluded that all of the prior convictions should be disregarded insofar as they relate to the Accused’s credibility. While none of the convictions is for an offence that would prima facie be expected to prejudicially influence jury, and hence might properly be put before them, have completely excluded the Accused’s record from my consideration regarding credibility. The only conclusion draw from the record is that the Accused has in the past been familiar with the workings of the criminal justice/court system, and that he accordingly is not neophyte witness. This is not negative inference it is merely the common sense proposition that every witness brings his background with him to the stand, and that the fact-finder is entitled to consider it. Further Findings of Fact and Credibility: [28] If believed, the evidence of Calvin Klimek respecting the telephone conversation would raise reasonable doubt, and would entitle him to an acquittal. As noted, he agreed that he used the words “body bags” and “blown away”. He said that what he would have said was “they will probably blow you away”, and that he was responding to his mother’s alleged comment to him that “if you bring the police with you, we’ll shoot them”. [29] disbelieve the evidence of the Accused regarding his version of this portion of the conversation. find that he did not tell Lena Klimek that he was going to bring Prince Albert City Police officer with him. He admitted on cross-examination that he didn’t tell his mother the officer’s name; his wife’s evidence, however, was that she heard the Accused say during the conversation that he was going to take “Jim” with him, meaning Cst. Kidney. Significantly, in my view, no question was put to Michael Klimek as to whether he heard his grandmother say anything about the police attending or that she would shoot them. Even accepting that Michael agreed that he did not hear everything that the Accused said, he could not have missed hearing his grandmother talk about shooting someone. It is not the sort of remark that grandson would ordinarily forget if his grandmother said it during such telephone conversation. [30] also disbelieve the Accused’s evidence that he wanted police officer along with him so that he wouldn’t be shot at, and that his brothers had threatened to shoot him some five times. There is no suggestion that he reported any such threats. Given his high degree of anger regarding the estate winding up, both during and before the conversation (he believed that there was conspiracy among his brothers to get the Adam Klimek estate for less than it was worth), reporting of such threats to police would be likely, to say nothing of prudent step for him to have taken. [31] disbelieve the Accused’s evidence that he did not say anything to his mother which he would construe as threat to cause death to his three family members. An indicator of his level of anger, in addition to the loud vulgar manner he admitted he had never used with his mother before, is his stated intention to come and take certain family pictures off the walls. find that he did say to his mother that he intended to physically cut out those parts of the pictures portraying him or his immediate family. Although the Accused would not admit to the prosecutor that he “lost it” during the conversation, the common meaning of which is to completely lose control of one’s emotions, actions or speech and act in an irrational, unpredictable and possibly violent or criminal manner,) find based on the overwhelming evidence of the Crown witnesses and his wife, that the Accused did in fact “lose it”. [32] find the evidence of Michael Klimek to be straightforward and believable. There was no basis to find that his evidence was coloured by the bad feelings which obviously existed between his aunts and uncles regarding the estate, nor that he was in any way part of the family fight. He happened to drop in to see his grandmother, and his only emotional involvement was that he was offended by what he heard Calvin Klimek say to his grandmother. [33] am not left in any doubt as to whether Michael Klimek was able to hear those portions of the telephone conversation regarding the alleged threats. His own evidence was clear in this regard, and was not weakened on cross-examination. number of questions were put to other witnesses concerning the location of the telephone vis vis an adjoining wall, and the extent to which the wall would interfere with Michael’s ability to hear what the Accused was saying. However, no questions were put to Michael, who drew the diagram of the kitchen/telephone area, which caused me to have any doubt about what he heard. [34] find that he heard the Accused say that he would come to the farm, that he would blow away Lena, Merril and Garry Klimek, and that in immediate temporal proximity, he said that they would be put in plastic bags. Michael Klimek interpreted those words to mean that the three people would no longer be living. Mr. Piche objected to Michael Klimek being permitted to give his interpretation. In my opinion, the meaning of most words must be taken from the context in which they are used. Many words have, in context, powerful and precise connotations. Having regard to any ordinarily-informed adult in today’s society, use of the words “blown away” and “being put in plastic bags”, in temporal proximity, connote death and admit of no non-lethal interpretation. In this regard, also find that Michael Klimek did see fear in his grandmother’s face as result of the words which were spoken by the Accused. [35] At trial, Lena Klimek said that the Accused said he was coming out to kill her. She agreed that in her earlier statement to police, she did not include the word “kill”. She told Mr. Piche that the Accused probably used the words “kill” and “get rid of” during the call, and that in this regard her memory was better at trial than it was when she gave her statement to police. find that her recollection of the actual words spoken was not as accurate as that of Michael Klimek. also find, however, that the words said to her were clearly understood by her to be menacing that she and her sons were being threatened with death. [36] Mr. Piche argued that there must be precision as to what was said during the conversation, and in what order. In the absence of tape recording, it is not reasonable, in my view, for anyone to be able to recall verbatim everything that is said in the course of 10 15 minute telephone conversation, and to relate the precise order in which each sentence was spoken. Mr. Piche’s submission puts the matter too broadly. The Crown is required to place sufficient evidence before the Court as to each of the elements of the offence which, when taken in the context of all the evidence presented, satisfies the Court beyond reasonable doubt that the offence is made out. Obviously, in case such as this, the words used and the meaning of those words, is important. have doubt as to whether Lena Klimek heard the Accused use the word “kill” do not have doubt that the other words were spoken by the Accused, in the manner referred to previously. [37] Having decided that the Defence evidence is not believable, is there any other evidence which raises doubt in my mind? Mr. Piche suggested that Lena Klimek did not take the words seriously, as evidenced by the fact that instead of calling the police immediately, she proceeded unconcernedly to her bowling with her friend. He suggested to her in cross-examination that the conversation couldn’t have been as scary for her as she alleged that she was so scared that she went bowling. [38] do not find this argument to have merit. Although it is clear in observing and listening to Mrs. Klimek on the witness stand that she can be feisty herself and can make her own decisions when required, conclude the following: a) she had already arranged to go bowling. Her friend was there, and Lena was embarrassed that her friend heard the conversation. The friend was petrified; b) she wasn’t sure what to do after hanging up the phone. She told Michael to go to town and report the conversation to his father, which he did. The police were immediately notified. For 77-year-old woman to be uncertain as to what to do, and to want her sons to deal with the police on difficult family matter makes eminent sense; c) if Calvin Klimek was coming to the farm to do as he said he would do, she would be safer away from the farm; d) Mrs. Klimek and Michael both took the words of the Accused seriously there was no delay in calling the police and giving statements. [39] In R.v.Clemente (1994) 1994 CanLII 49 (SCC), 31 C. R. (4th) 28 at paras. ,7 and 12, the Supreme Court held that the mens rea, or requisite intent, required under s. 264.1 is established (a) if the words were uttered with the intent to intimidate or instill fear, or (b) if it is shown that the threat was uttered with the intent that it be taken seriously. At para. 13 and 14, Cory J. said: “To determine if reasonable person would consider that the words were uttered as threat the court must regard them objectively, and review them in light of the circumstances in which they were uttered, the manner in which they were spoken, and the person to whom they were addressed. “Obviously words spoken in jest or in such manner that they could not be taken seriously could not lead reasonable person to conclude that the words conveyed threat....” [40] In Clemente, the accused did not testify, and Cory J. referred to the court making its determination in the absence of any explanation of the accused. In the present case, there has been an explanation by the Accused, but have disbelieved the evidence given on his behalf in this regard. Therefore, the statement of the law set out above is equally applicable with respect to Klimek. [41] Mr. Piche argued that the Accused didn’t mean what he said, and that he was simply making idle threats, blurted out in anger and frustration in the context of family disagreement. He referred to R. v. LeBlanc (1989) 1988 CanLII 131 (NB CA), 66 C. R. (3rd) 134 (N.B.C.A.), reversed and trial judgement upheld, (1989) 1989 CanLII 56 (SCC), 70 C.R (3rd) 94 (S.C.C), in support of the proposition that the words used by Klimek could not lead reasonable person to conclude that the words conveyed threat. [42] In LeBlanc, the hypothetical example used by the trial judge was to situation where person is playing cards, and says to his partner after the partner’s misplay caused them to lose the hand, “Oh gees! could kill you”. In such case there would be no threat, because there was no actual menace or hostile determination of pain or suffering or death. In my view, an analagous instance of lack of menacing intent is that referred to in the evidence of the Accused in the present case, is when he alleged that his mother said to him “I should have drowned you”. The bare words “I should drown you” won’t ordinarily attract criminal liability. However, all of the surrounding circumstances will bear on whether the words are innocently spoken, or whether there is something in all the circumstances which would convey to reasonable person the menace that harm or ill will befall you. [43] In my view the words spoken by the Accused were clearly meant to be taken seriously, and implied menace to the listeners They cannot on any reasonable construction of their meaning lead reasonable person to doubt that they conveyed threat. Decision [44] As indicated, I disbelieve the Accused’s evidence. do not consider it reasonably capable of being true. In my opinion, the Accused, in much cooler frame of mind than on the day of the incident, has constructed story in explanation of what occurred. The story does not “hang together”, for the reasons I have given. Considering all of the evidence, I find that the Crown has proven its case against Calvin Klimek beyond a reasonable doubt, and I accordingly find him guilty of the charge as amended. Dated at Melfort, Saskatchewan on April 18, 2000. B. D. Halderman, P. C. J.

The accused was charged with uttering threats to his 77 year old mother to cause death to her and his brothers contrary to s.264.1 of the Criminal Code. HELD: The accused was found guilty. 1)The words spoken by the accused were clearly meant to be taken seriously and implied menace to the listeners. The accused's evidence was disbelieved. His constructed story did not 'hang together'. 2) In a non-jury trial there is ordinarily no need for defence to formally make a Corbett application, requesting an order excluding evidence of convictions whose prejudicial effect outweighs their probative value. The judge must not infer from the record that the accused has a propensity to commit criminal offences. Given the age of the record and other factors considered including his present work and family life, it was concluded that all of the prior convictions should be disregarded as they relate to the accused's credibility. The only conclusion drawn was that the accused had been familiar with the workings of the criminal justice system which was not a negative inference.

c_2000canlii19597.txt

J. IN THE SUPREME COURT OF NOVA SCOTIA Citation: Cuvelier Cuvelier v. Bank of Montreal, 2002 NSSC 284 Date: 20021231 Docket: S.H. 155910C Registry: Halifax Between: Hugh Cuvelier and Doreen Cuvelier v. Bank of Montreal Defendant Judge: The Honourable Justice Donald M. Hall Heard: July 31, Aug 1, 3, 2000, in Halifax, Nova Scotia. Final submission on costs received January 3, 2002. Counsel: William M. Leahey, for the plaintiffs Joel E. Fichaud, Q.C., for the defendants By the Court: [1] Counsel have been unable to agree on costs in this proceeding where, after four day trial, the plaintiffs were successful in recovering the base amount claimed but did not succeed in their claims for aggravated and punitive damages. [2] Mr. Leahey, counsel for the plaintiffs, submitted that costs should be substantially increased above the usual party and party costs because, as he contended, the defendant ought to have admitted liability at the outset rather than forcing the plaintiffs to trial. Mr. Leahey proposes that the court fix costs in the amount of $15,000.00 plus disbursements. [3] On behalf of the defendant, Mr. Fichaud contended that the defendant was justified in contesting the plaintiff's claim as it did and that it did not unduly prolong the proceeding. He does, however, agree that costs be calculated on the amount involved under scale of Tariff A. [4] Both counsel agree that the "amount involved" is the amount of the recovery, $29,150.00. Applying scale to this amount would provide costs of $4,725.00. [5] In his submission, Mr. Leahey stated that his solicitor and client fees totaled $18,705.65 plus H.S.T. of $2,957.83 for total of $21,663.48. To my mind, considering that the trial extended over four days and that good deal of preparation would have been involved, this is not an unreasonable amount for Mr. Leahey to charge to his clients. Of course, what portion the other party is obliged to pay under party and party award is another matter. [6] As counsel have noted, Rule 63.04 of the Civil Procedure Rules sets out the factors that the Court may consider in fixing costs. These include: (c) the conduct of any party which tended to shorten or unnecessarily lengthen the duration of the proceeding; (d) the manner in which the proceeding was conducted; (e) any step in the proceeding which was improper, vexatious, prolix or unnecessary; (f) any step in the proceeding which was taken through over-caution, negligence or mistake; (g) the neglect or refusal of any party to make an admission which should have been made; (j) any other matter relevant to the question of costs. [7] do not accept Mr. Leahey's proposition that the defendant's ought to have admitted liability at the outset. As the decision indicates, the case turned entirely on whether the plaintiff's had established that the money was in the safety deposit box at the relevant time as they alleged. The court accepted their evidence in this respect, but did not condemn the defendant for contending otherwise and defending the claim. The court found no fault on the part of the defendant in its conduct of the proceeding. Accordingly, find that none of the factors (c) to (g) militate against the defendant. [8] Under paragraph (j), however, the court may consider any other matter relevant to the question of costs. In my opinion, the reasonable cost to successful party to obtain recovery of just claim is relevant matter. Here it appears that it will cost the plaintiffs $21,663.48 in legal fees to recover $29,150.00. This may appear to be disproportionate amount of costs in view of the relatively moderate recovery. However, it was necessary for the plaintiffs to expend this amount in order for them to recover the money they had lost through no fault of their own, which in their circumstances was not an insignificant amount. [9] I have concluded, therefore, that it is appropriate to go outside the tariffs in determining what is a reasonable amount for the defendant to contribute to the plaintiffs\' costs. In my view the plaintiff should contribute $10,000.00 toward the plaintiffs\' costs plus disbursements. Counsel have agreed on disbursements of $1,213.16. [10] Accordingly, fix the plaintiffs costs at $11,213.16, including disbursements.

Following a four day trial, the plaintiffs were successful in the recovery of the sum of $29,150 against the defendant. Under the usual tariff, costs would be fixed at $4,725. The plaintiffs sought substantially increased costs on the basis that the defendant should have admitted liability at the outset rather than forcing the plaintiffs to trial. Solicitor and client fees totaled over $21,000. Costs fixed at $10,000 plus disbursements; there was no obligation on the defendant to admit liability but considering the amount of legal fees incurred in relation to the amount recovered, it was appropriate to go outside the tariffs.

2_2002nssc284.txt

J. Q.B.G. A.D. 1995 No. 3050 J.C. R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: THE OWNERS: CONDOMINIUM PLAN 84R16835 and JEFFREY JAMES SOUTH, KAREN JOAN RILKOFF, WESTERN LITHO LIMITED, GORDON JAMES KEIR NEILL, THE ROYAL BANK OF CANADA, HELEN RILKOFF, KEVIN JACQUES, and BALFOUR MOSS and JEFFREY JAMES SOUTH and KAREN JOAN RILKOFF PLAINTIFFS BY COUNTERCLAIM and THE OWNERS: CONDOMINIUM PLAN 84R16835 DEFENDANT BY COUNTERCLAIM P.J.D. Tyerman for The Owners: Condominium Plan 84R16835 D.D. Kowalishen for Jeffrey James South and Karen Joan Rilkoff FIAT MATHESON J. September 22, 1997 The plaintiffs have applied for an order, pursuant toQueen's Bench Rule 173, striking out the statement of defenceand counterclaim of Jeffrey James South and Karen Joan Rilkoff(the defendants) and the separate statement of defence ofHelen Rilkoff. It has been asserted that the issues raised in thedefendants statement of defence, and in the statement ofdefence of Helen Rilkoff, do not disclose a reasonabledefence, nor do the issues in the counterclaim show areasonable cause of action. The plaintiffs have also alleged that paragraphs 6, and of the defendants statement of defence, which are incorporated into paragraph 10 of the counterclaim, raise issues which have been dealt with in final decision of court of competent jurisdiction and the defendants are therefore barred by the doctrine of res judicata, or issue estoppel, from pursuing such issues. Consequently, it has been asserted that the raising of such issues is an abuse of the process of the court. Finally, it has been submitted that the defendants statement of defence and counterclaim are frivolous, vexatious and otherwise an abuse of the process of the court. CLAIMS The plaintiffs claim against the defendants as owners of condominium unit number 14. The plaintiffs claim that the defendants have not paid, since 1994, their share of assessments against all unit owners. It is alleged that the plaintiffs claim forms charge against the defendants condominium unit which is analogous to municipal tax lien and can therefore be enforced against, and survives the enforcement by, prior encumbrances. It has been further alleged that the plaintiffs' claim can be enforced in the same manner as mortgage charge. Consequently, the principal claim against the defendants is for an order foreclosing their equity of redemption in their condominium unit. No claim has been asserted against Helen Rilkoff. She has been added as defendant on the basis that she has registered mortgage against condominium unit number 14. It has been alleged that because the plaintiffs' charge against condominium unit number 14 takes priority to all encumbrances, Helen Rilkoff appears to have an interest in the equity redemption. The amount claimed to be owing by the defendants, as of June 1, 1997, is $29,598.19, calculated as follows: Arrears of assessment 7,665.21 Interest on arrears 5,860.67 Solicitor/client costs 16,072.31 Total $29,598.19 DEFENCES The defendants have admitted that they have not paid assessments since 1994 but assert that they are entitled to set off against the assessments damages incurred to their condominium unit as result of the plaintiffs failing to have maintained the common property immediately adjacent to their condominium unit. The defendants have also counterclaimed for those damages. It has also been asserted that the resolutions, pursuant to which the plaintiffs made the assessments, were enacted under the authority of The Condominium Property Act, R.S.S. 1978, c. C-26 but that none of the resolutions make provision for charging interest or solicitor/client costs. It has further been alleged that the bylaws enabling the plaintiffs to claim interest and solicitor/client costs are ultra vires the powers granted to the plaintiffs by the foregoing statute. The defendants have also asserted that the right of the plaintiffs to claim lien against the condominium unit arose only by virtue of The Condominium Property Act, 1993, S.S. 1993, c. C-26.1, which did not come into force until January 1, 1995. Helen Rilkoff has alleged that her mortgage charge was registered prior in time to the lien claimed by the plaintiffs in their caveat and should therefore not be affected by the claim. If the plaintiffs' lien does take priority, however, it has been alleged that it can only do so with respect to unpaid assessments arising after January 1, 1995. SUBMISSIONS The plaintiffs have argued that the doctrine of resjudicata applies to the defendants claim for damages by virtueof two Small Claims court judgments in 1989 and 1992. Thedefendants have asserted that their damages arose in 1994 andthat the cause thereof was a different cause than those causesdealt with in the 1989 and 1992 judgments. The defendants have referred to judgment of this Court in support of their allegation that if the resolutions authorizing the assessments do not also contain resolutions authorizing the plaintiffs to recover interest and solicitor/client costs, the plaintiffs are not entitled to do so. The plaintiffs, on the other hand, have insisted that the judicial decision referred to is erroneous. The plaintiffs have submitted that no right of set off for damages exists with respect to the claim for arrears of mortgage loan. Both parties have referred to statutory provisions, and judicial decisions, in support of their respective positions as to the validity of the bylaws of the plaintiffs allegedly entitling the plaintiffs to claim interest on unpaid assessments and solicitor/client costs. The plaintiffs filed a 55 page brief in support oftheir submissions, and the defendants filed a 14 page brief inresponse thereto, evidencing, to some extent, the fact thatthe issues raised do not appear susceptible of being simplyresolved, and certainly not on a summary basis. CONCLUSION When plaintiff applies for an order striking out statement of defence, and counterclaim, on the basis that no justiciable issue is raised in the defence, or any reasonable cause of action in the counterclaim, or that the pleadings are frivolous, vexatious, and an abuse of the process of the court, the court is not permitted to embark upon the resolution of legal questions in order to determine whether the pleadings should be struck as requested. If no facts are in dispute, the parties may resort to Queen's Bench Rule 188, which permits resolution of questions of law prior to trial if the resolution thereof will resolve the dispute between the parties or significant aspects of the dispute. Counsel for the plaintiffs proposed that the court convert the plaintiffs' application, as matter of convenience, into Queen's Bench Rule 188 application. However, it was pointed out that the preconditions for hearing applications pursuant to Queen's Bench Rule 188 are quite different to those relating to Rule 173, in that an application to strike out pleadings basically permits only an examination of the impugned pleadings to determine if any justiciable dispute is revealed. Only if the defendants consented to the application being converted into an application pursuant to Queen's Bench Rule 188 could the court proceed to resolve what appeared to be rather serious questions of law. The consent by the defendants to do so was not forthcoming. The application of the plaintiffs must therefore bedismissed with costs to the defendants in any event of thecause.

FIAT. The plaintiffs applied for an order striking out the statement of defence and counterclaim and separate statement of Helen Rilkoff as not disclosing a reasonable defence or cause of action. The plaintiffs claimed the doctrine of res judicata applied to the claim for damages by virtue of two Small Claims court judgments in 1989 and 1992. The defendants asserted their damages arose in 1994 and that the cause thereof was different than those previously dealt with. HELD: The application was dismissed with costs to the defendants in any event of the cause. 1)The fact that the plaintiffs filed a 55 page brief in support of their submissions and the defendants filed a 14 page brief in response evidenced that the issues were not easily resolved and certainly not on a summary basis. 2)An application to strike out pleadings basically permits only an examination of the impugned pleadings to determine if any justifiable dispute is revealed. If no facts are in dispute, the parties may resort to Rule 188. Only if the defendants consented to the application being converted into an application pursuant to Queen's Bench Rule 188 could the court proceed to resolve the questions of law.

b_1997canlii10986.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2012 SKQB 513 Date: 2012 12 10 Docket: Q.B. No. 454/2005 Judicial Centre: Prince Albert BETWEEN: SASKATCHEWAN GOVERNMENT INSURANCE, Plaintiff (Defendant by Counterclaim) and JOHN MEDYNSKI, operating sole proprietorship under the name LAKELAND TOWING, and ASTRO TOWING (P.A.) LTD., Defendants (Plaintiffs by Counterclaim) Counsel: Kenneth A. Stevenson, Q.C. for the plaintiff Neil C. Raas for the defendants JUDGMENT R.S. SMITH J. December 10, 2012 [1] granted judgment in this matter on April 18, 2012 (Saskatchewan Government Insurance v. Medynski, c.o.b. Lakeland Towing, 2012 SKQB 157 (CanLII), 396 Sask.R. 104, the “Original Judgment”). Paragraphs 103, 104, 113 and 114 of the Original Judgment read: [103] There is no objective evidence which supports the proposition that the Admin Fee is reasonable. Accordingly, conclude that the Admin Fee is not recoverable under the doctrine of quantum meruit. therefore grant judgment against the defendants in the amount of the Admin Fees charged and paid by SGI to the individual claimants. Specifics of judgment are: (i) Judgment against Astro for improperly charged Admin Fees in the amount of $148,850. In addition, SGI shall have judgment against Astro for any Admin Fees charged and paid by SGI subsequent to November 14, 2011. (ii) SGI shall have judgment against John Medynski, operating as Lakeland Towing for improperly charged and paid Admin Fees in the amount of $345,755.52. (iii) In addition, SGI shall have judgment for any Admin Fees charged and paid by SGI subsequent to November 14, 2011. [104] will remain seized with this matter respecting any dispute as to the amount of the judgment to be taken by SGI against the defendants. [113] conclude that SGI is entitled to recover from the defendants those charges made by the defendants for towing and other related services that were greater than 15% above the SGI Fee Schedule. In sum, conclude that the reasonable range is within 15% of the SGI Fee Schedule. [114] Fortunately, SGI’s detailed tracking of the charges by the defendants should permit this mathematical calculation to be made. I will leave to the parties the clerical task of engaging in that process. In the event the parties are unable to reach an agreement on what the judgment amounts to from the above formula, then I remain seized with this and they are to contact the registrar in order to arrange a time for argument on any points in debate. [2] The parties have not been able to reach an agreement as to how to calculate the final judgment. The solicitors for Saskatchewan Government Insurance (“SGI”) have submitted detailed calculations for the Court’s review. Mr. Raas, on behalf of the defendants, does not concede their accuracy but, at the same time, advances no specific objections nor does he submit his own calculations. [3] The defendants object to the request by SGI that I finalize judgment as contemplated by the above paragraphs 103, 104, 113 and 114. The defendants invoke Rule 15 of The Court of Appeal Rules which provides, in part: 15(1) Unless otherwise ordered by the judge appealed from or by judge, the service and filing of notice of appeal does not stay the execution of judgment or an order awarding mandamus, an injunction, alimony, or maintenance for spouse, child or dependant adult. Unless otherwise ordered by judge, the service and filing of notice of appeal stays the execution of any other judgment or order pending the disposition of the appeal. (4) Where the execution of judgment or order is stayed pending an appeal, all further proceedings in the action, other than the issue of the judgment and the taxation of costs under the judgment, are stayed unless otherwise ordered. [4] The defendants maintain that by reason of Rule 15, the service and filing of a notice of appeal stays the execution of a judgment until disposition of the appeal, unless otherwise ordered. There are certain exceptions, including orders of mandamus, injunctions and the like, none of which are in play here. The defendants complain that the calculation of judgment is proceeding on the judgment and thus barred by Rule 15. [5] SGI replies that the calculation of the judgment, essentially a mathematical process, is not acting on the judgment and thus is not a violation of the stay created by reason of the appeal. Further, SGI suggests it is appropriate and logical that the calculation of what is owing on the judgment be completed at this juncture, rather than waiting for the disposition of the appeal. [6] have found guidance in Silver Developments Ltd. (Trustee of) v. Investors Group Trust Co., [1999] S.J. No. 301 (QL) (Q.B.), wherein they referred to Mayrand v. Mayrand (1982), 1982 CanLII 2381 (SK CA), 20 Sask.R. 263, [1982] S.J. No. 861 (QL) (C.A.): [19] In Mayrand wife applied for relief against her husband. The husband applied for an order transferring the proceedings from the Unified Family Court in Saskatoon to the Court of Queen’s Bench at Humboldt. The Saskatchewan Unified Family Court dismissed the application. The husband filed notice of appeal. The wife applied to have lifted the stay she thought was imposed by then Rule 15(1). The relevant part of Rule 15(1) as it then was is the same in effect, if not the exact words, as the present Rule 15(1). [20] The application was heard by Chief Justice Bayda who dismissed it after saying at pp. 264‑65: Both parties appear to have misconceived the effect of the stay imposed by Rule 15(1) insofar as it affects the present appeal. The parts of the Rule material to the present case provide “... upon an appeal being filed, execution of the judgment appealed from shall be stayed pending the disposition of the appeal.” (my emphasis) It is noted that only “execution of the judgment” is stayed. Here, the “judgment appealed from” consists of an order of dismissal of an interlocutory application. The judgment does not direct that anything be executed. There is, therefore, nothing to stay. Accordingly, Rule 15(1) in the present factual situation is of no moment. The parties appear to have attributed to the stay imposed by Rule 15(1) scope that is totally unwarranted. The Rule does not impose general stay of proceedings bringing to halt all proceedings in the action as would an order of court directing stay of all proceedings. The Rule imposes stay of only one proceeding: the execution of the judgment appealed from. It follows that the wife may make her application to the Unified Family Court without any order of this court under Rule 15(1). [7] In this instance, all SGI has requested is to finalize the calculation of the judgment. In my view, this step is completely consonant with the reasoning of Chief Justice Bayda in Mayrand. [8] In Silver Developments Ltd., supra, Justice Armstrong was addressing the scope of Rule 15. In the judgment dated May 13, 1999, which was an addendum to prior judgment in the matter dated February 19, 1999 (Silver Developments Ltd. (Trustee of) v. Investors Group Trust Co. (1999), 1999 CanLII 12521 (SK QB), 182 Sask.R. 64 (Q.B.)), Justice Armstrong opined: [26] For “all further proceedings in the action” as stated in Rule 15(4) to limit the judge’s authority over his or her own judgment prior to it being formally issued would require exercise of such authority to be “proceeding” in the action and in my view it is not. Furthermore, the Court of Appeal would have to have jurisdiction to prohibit judge of the Court of Queen’s Bench from making any change to his or her own judgment even though the judge is not functus officio. With respect, such jurisdiction is something do not believe the Court of Appeal has. ... [27] The expression “... other than issue of the judgment ...” does not in my view mean either that making or changing the judgment is “proceeding” or assuming it is, that “all further proceedings in the action” are stopped regardless of the judgment not having been formally entered. Had this been intended think the rules would have said so. ... [9] The Saskatchewan Court of Appeal had occasion to comment upon the appropriate procedure in somewhat similar circumstance. In Bart v. Phoenix Farms, 1997 CanLII 9718 (SK CA), [1997] W.W.R. 353, 152 Sask.R. 203 (C.A.), the trial decision was appealed, and the successful party at trial applied for the stay of execution to be lifted. It would appear from the judgment that the matter had gone on for some time, and the calculation of judgment was in hot dispute. [10] In addressing the application to lift the stay, Justice Cameron made the following observation: [8] In the light of all of this, and in the whole of the circumstances, it might have been better had the parties gone back to the chamber judge for clarification of the order and for further directions. might say the nature of the interlocutory matters now in issue, the form of the order, and the way in which the remainder of the dispute has evolved since the making of the order, rather suggests return to the chamber judge for such purposes. In the circumstances, he would not appear to be functus. Nor would the Court of Queen’s Bench appear to be foreclosed by the existence of the appeal from further acting upon the matters now in dispute. [Emphasis added] [11] Additionally, in Lac La Ronge Indian Band v. Dallas Contracting Ltd., 2002 SKQB 407 (CanLII), 228 Sask.R. 46, Justice Baynton was dealing with an application to determine costs at trial in the face of an appeal that had been launched. Determining costs is specific exception contemplated under Rule 15(4). However, Justice Baynton had occasion to observe that stay arising from the appeal does not affect all aspects of judgment. He also emphasized the practical considerations of expense, delay and providing accurate information to the Court of Appeal. He provides guidance commencing at paragraph of his judgment: [5] Counsel for the respondents have quite properly cited Mayrand v. Mayrand (1982), 1982 CanLII 2381 (SK CA), 20 Sask.R. 263 (C.A.), Prince Albert Credit Union Ltd. v. Diehl et al., 1985 CanLII 2646 (SK CA), [1986] W.W.R. 635 (Sask. C.A.) and Silver Developments Ltd. (Trustee of) v. Investors Group Trust Co., [1999] S.J. No. 301 (Q.B.). They also quite properly distinguish these cases on their facts and submit that while subsection (1) has been interpreted to effect stay only on the execution (and not all aspects of judgment), subsection (4) effects stay of all further proceedings in the action other than the issue of the judgment and the taxation of costs under the judgment. They maintain that an application for an order respecting costs is “proceeding in the action” and is accordingly stayed pursuant to subsection (4) of Rule 15. [6] fail to appreciate the merit in this fine distinction. From policy perspective, if the submission is accepted, the parties will be put to unnecessary delay and expense. The determination of costs cannot be made until the Court of Appeal releases its decision on the appeals of the judgment. As requested by counsel at trial, reserved the matter of costs when released my reasons for judgment. The respondents acknowledge that if they fail in their appeals, the costs issue must necessarily be referred back to me for determination. as the trial judge am not functus respecting the matter of costs. Once ultimately make the costs determination, further appeal can then be taken by any of the parties respecting my decision on costs. In such event, the costs and delay occasioned by multiple appeal hearings will be visited on the parties. [7] However, if determine the costs issue at this time, this potential delay and expense will be avoided. The Court of Appeal will have my decision on costs before them when they determine the appeals that are now pending. confirmed with counsel that the appeals will not be heard for some time so that any party to the action will have the opportunity to appeal my determination of the costs issue and have it heard at the same time as the appeals that have been undertaken. [Emphasis added] [12] Accordingly, do not regard the calculation of the judgment as contemplated by the Original Judgment as “proceeding” in the action. Attending to the clerical task now will avoid costs and delay and will hopefully be of some assistance to the Court of Appeal. [13] Accordingly, it is appropriate for me to calculate the judgment owing to the date of my Original Judgment based on the materials submitted by SGI. [14] Therefore, there will be judgment in favour of SGI against Astro Towing (P.A.) Ltd. (“Astro”) calculated as follows: As per paragraph 103 of the Original Judgment $148,850.00 Additional Admin Fees charged to April 18, 2012 200.00 Other overcharges as provided for in paragraphs 113 and 114 of the Original Judgment 26,159.63 Pre‑judgment interest 15,737.54 Total judgment by SGI against Astro as at April 18, 2012 $190,947.17 [15] SGI shall have judgment against John Medynski, operating as Lakeland Towing, as follows: As per paragraph 103 of the Original Judgment $345,755.53 Additional Admin Fees charged to April 18, 2012 28,850.00 Other overcharges as provided for in paragraphs 113 and 114 of the Original Judgment 146,381.91 Pre‑judgment interest 17,133.51 Total judgment by SGI against John Medynski as at April 18, 2012 $538,120.95 [16] As discussed, any proceedings on the judgment are stayed pending the appeal. Once the appeal is disposed of, SGI should prepare formal judgment rolls based on the above, subject, of course, to any changes emanating from the Court of Appeal. [17] There will be no costs of this application.

In the original judgment, the manner in which certain calculations should be made with respect to the amount owing to the plaintiff was left to the parties, with the provision that the judge remained seized if they could not reach an agreement. After judgment, the defendants appealed the judgment. The plaintiffs then submitted detailed calculations of the final judgment for the trial judge's review. The defendants objected to the finalization of the judgment on the ground that, pursuant to Court of Appeal Rule 15, the notice of appeal had stayed the execution of the judgment until the disposition of the appeal. The plaintiff submitted that the calculation of the judgment was not acting on it. HELD: The defendant misconstrued the scope of Rule 15 as it does not stay proceedings. The appeal does not affect the ability of the Court to finalize the judgment. In fact, to do so will avoid costs and delay, and will hopefully be of some of assistance to the Court of Appeal.

d_2012skqb513.txt

LANE J.A. C.A. No. 02922 NOVA SCOTIA COURT OF APPEAL Jones, Chipman and Roscoe, JJ.A. BETWEEN: DONNA MARCHAND and ABLE ELECTRIC LTD., body corporate Respondent L.W. Scaravelli for the Appellant David P. S. Farrar for the Respondent Appeal Heard: January 26, 1994 Judgment Delivered: January 26, 1994 THE COURT: Appeal dismissed without costs per oral reasons for judgment of Jones, J.A.; Chipman and Roscoe, JJ.A. concurring JONES, J.A.: This is an appeal from a decision of Mr. Justice Kelly in the Supreme Court which held that the action herein by the appellant is barred by s. 18 of the Workers\' Compensation Act R.S. 1989, c. 508. The appellant was employed by MacKenzies Eastern Transport Limited. MacKenzies carried on business in commercial warehouse at Musquodoboit Harbour owned by the respondent and leased to MacKenzie. On October 7, 1991 the appellant, while in the course of her employment was struck by tile which fell from the office ceiling. MacKenzies and the respondent were employers under Part of the Workers' Compensation Act. The appellant received benefits under the Act. The appellant commenced the present action against the respondent for damages with the consent of the Workers\' Compensation Board. chambers application was made before Mr. Justice Kelly to determine whether the action was barred by s. 18 of the Act. There was an agreed statement of facts. The following provisions of the Act are relevant: "17(1) Where an accident happens to worker in the course of his employment in such circumstances as entitle him or his dependants to an action against some person other than his employer, the worker or his dependants if entitled to compensation under this Part may claim such compensation or may bring such action, provided written notice of election to bring such action or to claim compensation shall be made to the Board within six months from the date of the accident. 18 In any case within the provisions of subsection (1) of Section 17, neither the worker nor his dependants nor the employer of such worker shall have any right of action in respect of such accident against an employer, his servants or agents, in an industry to which this Part applies, and in any such case where it appears to the satisfaction of the Board that worker of an employer in any class is injured or killed owing to the negligence of an employer or of the worker of an employer in another class to which this Part applies, the Board may direct that the compensation awarded in such case shall be charged against the last mentioned class. 20 The provisions of this Part shall be in lieu of all rights and rights of action, statutory or otherwise, to which worker or his dependants are or may be entitled against the employer of such worker for or by reason of any accident in respect of which compensation is payable hereunder or which arises in the course of the worker's employment in an industry to which this Part applies at the time of the accident, and no action in respect to such accident or any injury arising therefrom shall lie." After reviewing the provisions of the statute and the authorities Mr. Justice Kelly concluded: "In that case, Justice Patterson held that the messenger boy's action was barred. Although again, that decision did not deal specifically with the type of fact situation before this Court, in that case, and in the other Nova Scotia cases, there is no indication that s. 18 should be restricted in any way from what Justice Patterson has referred to as 'its clear language'. In s. 18, the ban is against actions of \'an employer\', not \'his employer\', and would appear to extend the ban to all employers to which Part I of the Act applies. We agree with the reasons for judgment of the learned chambers judge. The appeal is dismissed without costs. J.A. Concurred in: Chipman, J.A. Roscoe, J.A. 1992 S.B. No. 81720 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: DONNA MARCHAND and ABLE ELECTRIC LTD., body corporate DEFENDANT HEARD: Before The Honourable Justice Wm. Kelly, in Chambers, at Halifax, Nova Scotia DATE: September 21, 1993 DECISION: September 21, 1993 (orally) COUNSEL: Paul B. Miller, Esq., solicitor for the Plaintiff David P.S. Farrar, Esq., solicitor for the Defendant Graham Steele, Esq., solicitor for Workers' Compensation Board C.A. .No. 02922 NOVA SCOTIA COURT OF APPEAL BETWEEN: DONNA MARCHAND and ABLE ELECTRIC LTD., body corporate Respondent REASONS FOR JUDGMENT BY: JONES, J.A.

The respondent owned a warehouse and leased it to the appellant's employer. During the course of her employment, a ceiling tile fell and struck the appellant. Both the respondent and the appellant's employer were employers under the Workers' Compensation Act. The appellant received benefits under the act. She commenced the action against the respondent with the consent of the Workers' Compensation Board. The trial judge held the action barred pursuant to the act. Dismissing the appeal, that s. 18 of the Act bars actions against any employer to which Part I of the Act applies. It is not necessary that the employer be the appellant's employer.

1994canlii4106.txt

THE COURT OF APPEAL FOR SASKATCHEWAN EDMUND CHRISTOPHER BANKOWSKI and PATRICIA MARIE EDMISON CORAM: The Honourable Mr. Justice Cameron The Honourable Mr. Justice Sherstobitoff The Honourable Madam Justice Jackson COUNSEL: Ms. C.R. Werry for the appellant Mr. E.F.A. Merchant for the respondent DISPOSITION: Appeal Heard: November 1993 Appeal Decided: December 1993 On Appeal From: Q.B. 014241 of 1992, J.C. of Regina Appeal File: 1441 Reasons by: The Honourable Mr. Justice Sherstobitoff In concurrence: The Honourable Mr. Justice Cameron and The Honourable Madam Justice Jackson SHERSTOBITOFF J.A. This appeal is from judgment of Maurice J. under The MatrimonialProperty Act, R.S.S. 1985, c. M-6.1. The main issue is whether the judge erred in his distribution of assetsacquired with the proceeds of a severance package which the appellantreceived when his employment of twenty- three years was suddenly andunexpectedly terminated. The following excerpts from his judgment give the background facts, his reasoning leading to the disposition and the disposition itself: The wife, age 50, and the husband, age 50, were married October 8, 1988. They lived together until February 1, 1991, when they commenced living separate and apart under the same roof. The wife left the matrimonial home on March 21, 1992, and commenced proceedings for divorce and division of matrimonial property on May 14, 1992. On September 28, 1990, the husband's employment with Co- Operative Trust Company was terminated. severance package of $110,000.00 was ultimately agreed upon. The husband rolled $46,000.00 over into an R.R.S.P. and used $8,585.00 to purchase his company car. The balance was used for various expenses. At the date of application, the husband still retained the car and $36,000.00 was still invested in R.R.S.P.'s with Maritime Life Assurance. The husband says that he should not have to share these assets equally with the wife. The assets are matrimonial property owned by the husband, at the date of application, and subject, unless it would be unfair and inequitable, to equal sharing. The Act mandates equal sharing of assets acquired during the marriage. Section 20 of the Act states: That inherent in the marital relationship there is joint contribution that entitles each spouse to an equal distribution of the matrimonial property. Assets acquired before the marriage or after its breakdown are not subject to the same constraints. In my opinion, if the severance pay is additional remuneration given as reward for past service, it should be shareable to the extent that it is attributable to past service during the existence of the marital relationship. If the payment represents compensation for remuneration that would have been paid after the cessation of the marital relationship, then it should not be shareable. The termination of his employment came as complete surprise to the husband. After 23 years of service, he was told `It is not working out'. In the circumstances, it is obvious the severance package hereceived was not a reward for past service; it was for payment in lieuof reasonable notice of termination. As part of the settlement, the husband signed release acknowledging `That have received sufficient notice of termination of my employment by the employer or payment of salary in lieu thereof.' It is common ground that the severance packagewas based on 20.4 months of future earnings. If the severance package represented future wages for 20.4 months from the date of termination, then from that date (September 28, 1990) to the cessation of the marital relationship (if we take the date of the application, May 14, 1992, as the date of breakdown of the marriage) is 19.4 months: only one month of future wages can be said to have accrued after the breakdown of the marriage. It would be fair and equitable to exempt one month's salary ($5,392.16) from the matrimonial property in the possession of the husband, that is subject to equal sharing. The judge was indisputably correct in his determination that the property in question was matrimonial property as defined by s. 2(h) of the Act and that it was prima facie subject to equal distribution to each spouse under ss. 20 and 21(1) of the Act. Under s. 21(2), the judge had discretion, based upon considerations of equity and fairness, to adjust the equal distribution. While we do not all agree with the formula used by him to arrive at his disposition, and expressly refrain from approving it as applicable to all such cases, the result was well within his discretionary power and was reasonable result in the circumstances of the case. We can therefore find no basis upon which to change the disposition. Another ground of appeal was that the judge either overlooked or failedto take into consideration that the wife had taken a quantity offurniture and household goods and that, as a result, he failed to givethe husband credit for his one-half share of them. The record shows that to be the case. The items in question shall be valued at the amounts stated in an appraisal, exhibit P-4, and the appropriate credit given to the husband according to which items each of the parties, in the end, received, and the judgment shall be varied accordingly. In the event that the parties fail to agree on the amount of the adjustment, the matter shall be referred to the trial judge for determination. The last ground of appeal concerned failure to allow for depreciation in the valuation of an automobile. Since the judge used the only value put in evidence, he can hardly be faulted for assigning that value to the car. The appeal is allowed to the extent referred to above. In all other respects, it shall be dismissed. Since success was divided, each party shall bear his and her own costs. DATED at the City of Regina, in the Province of Saskatchewan, this 7th day of December A.D. 1993. SHERSTOBITOFF J.A. concur. CAMERON J.A. concur. JACKSON J.A.

Appeal from 107 SaskR 135, 44 RFL(3d)185. Appeal from a judgment directing matrimonial property. The main issue was whether the judge erred in his distribution of assets acquired with the proceeds of a severance package which the appellant received when his employment of twenty-three years was suddenly and unexpectedly terminated. The couple's marriage had lasted less than four years. HELD: The QB judgment was upheld regarding the severance package. The severance package was not a reward for past service; it was for payment in lieu of reasonable notice of termination. The severance package was based on future earnings, which would have occurred within the duration of the marriage. The QB judge did however fail to take into consideration that the wife had taken a quantity of furniture and household goods and that, as a result, he failed to give the husband his one-half share of them. Judgment varied accordingly.

a_1993canlii6596.txt

Q.B.G. A.D. J.C. R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: AGRI RESOURCE MGT. 2001 LTD. RESPONDENT (PLAINTIFF) and SASKATCHEWAN CROP INSURANCE CORPORATION APPLICANT (DEFENDANT) J.C. R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: AGRI RESOURCE MGT. 2001 LTD. RESPONDENT (PLAINTIFF) and SASKATCHEWAN CROP INSURANCE CORPORATION APPLICANT (DEFENDANT) J.P. Ellson for Saskatchewan Crop Insurance Corporation M.W. Milani for Agri Resource Mgt. 2001 Ltd. JUDGMENT KYLE J. February 16, 1996 The applicant seeks to have the firm, RobertsonStromberg, barred from acting for the plaintiff by reason ofMs. Schirr, a member of that firm, having been active inrepresenting the defendant, a Crown corporation, during theyears prior to 1991 when the defendant changed lawyersfollowing a change of government in Saskatchewan. This action was commenced after the change of solicitors and there is no suggestion that the subject matter of the action, the contractual issues giving rise to the cause of action, were ever the subject of any consultation between the defendant and its former solicitors. In 1993 in a similar application respecting anothermember of the same firm I ruled against the plaintiff. In sodoing I was being consistent with a prior ruling involving asimilar attempt to displace the applicant\'s present solicitorsfrom certain litigation then existing following the 1982change of government. It has been argued by the plaintiff that the situation in this case is exactly the same as that previously decided because Mr. Willner, the subject of the previous application, and Ms. Schirr, the present target, were partners or associates at all material times and if ruled in favour of the plaintiff then must do so now as all knowledge of one is for these purposes attributed to the other. This point is well taken and might well provide the basis for dismissal of the plaintiff's motion. (Other arguments have been raised, however, and propose to deal with them.) Much is made bythe applicant of the confidential nature of its adjusting andinvestigation of loss claims and internal policy proceduresand litigation strategies in relation to the denial of claims. By such reference to strategy counsel seems to suggest that the company has such litigation strategy and internal policies and procedures of confidential nature that is, one which could not be deduced from the pleadings and examinations for discovery by any competent lawyer. review of the file herein suggests that no such confidential strategy exists. The only identifiable strategy (or perhaps tactic) adopted to date has been excessive delay requiring applications to force compliance with the Rules and two applications, including this one, to deprive the plaintiff of its chosen legal representation. In the earlier application decried the tendency to use applications of this sort as harassment technique. As noted in that decision, once it is determined that there is no actual knowledge of the case in question and that there could be no actual knowledge by reason of the matter in question having arisen after the change of solicitors, the onus to establish the existence of confidential information justifying the requested order shifts to the party asserting the concern. went on to say Obviously, the information itself cannot be disclosed, however, it is reasonable to insist that the nature of the information be disclosed. For example, had Mr. Willner participated in an action factually similar to the present one, such that he was privy to the corporation's strategy in dealing with the matter or its willingness to settle and if he were aware of its response to his advice, then he might well be possessed of confidential information sufficient to disqualify him in this case. No such allegation has been made. Counsel for the applicant asserts that such is the situation in this case, perhaps because of Ms. Schirr's more extensive involvement in the litigation side of the applicant's affairs. The cases referred to, however, involved simply the construction of the statute and the regulations under it, as well as the statutory form of contract, all of which are public documents. As the applicant is a public corporation itis doubtful that it has or should have secret strategies withwhich to defeat persons claiming under its insurance scheme. It is, of course, entitled to have its own preordainedpolicies in respect of disputed claims and these may well havecome to the attention of the solicitors in this case, but ifsuch policies exist they probably should be made known to thepublic for whose benefit the applicant corporation exists. As well, such policies may well have changed since 1992. Therefore, for all of the reasons expressed in myjudgment of October 15, 1993, as well as those set forthherein, the application is dismissed with costs to therespondent in any event of the cause.

The applicant sought to have the law firm barred from acting for the plaintiff because a member of that firm had been active in representing the defendant prior to 1991 when the defendant changed lawyers following a change in government. This action was commenced after the change of solicitors and there was no suggestion that the subject matter of the action was ever the subject of any consultation between the defendant and its former solicitors. The applicant raised arguments about the confidential nature of its adjusting and investigation of loss claims and internal policy procedures and litigation strategies in relation to the denial of claims. HELD: The application was dismissed with costs to the respondent in any event of the cause. 1)In 1993 in a similar application respecting another member of the same law firm the judge ruled against the plaintiff. This was consistent with a similar attempt following the 1982 change of government. 2)The only identifiable strategy (or perhaps a tactic) adopted to date has been excessive delay requiring applications to force compliance with the Rules and two applications to deprive the plaintiff of its chosen legal representation. 3)Once it is determined that there is no actual knowledge of the case in question the onus to establish the existence of confidential information shifts to the party asserting the concern. 4)As the applicant is a public corporation it is doubtful it has or should have secret strategies with which to defeat persons claiming under its insurance scheme. It is entitled to have its own preordained policies in respect of disputed claims but if such policies exist they probably should be made known to the public for whose benefit the corporation exists. Also such policies may well have changed since 1992.

4_1996canlii6648.txt

Dated: 19991214 Docket: C.A. No 3243 THE COURT OF APPEAL FOR SASKATCHEWAN Coram: Cameron, Vancise, and Lane JJ.A. MILDRED ROSE SCOTT and DONALD WALTER SCOTT COUNSEL: Ms. Jo-Ann Parker for the appellant Mr. James Vogel for the respondent DISPOSITION: On Appeal From: Q.B.F.L.D. 730/106 J.C. Regina Appeal Heard: December 14, 1999 Appeal Dismissed: December 14, 1999 (orally) Written reasons: December 15, 1999 Reasons By: The Honourable Mr. Justice Cameron for the Court CAMERON J.A. [1] In light of the standard of appellate review (laid down in cases such as Lensen v. Lensen, 1987 CanLII 4 (SCC), [1987] 2 S.C.R. 672 and Fontaine v. British Columbia (Official Administrator), 1998 CanLII 814 (SCC), [1998] 1 S.C.R. 424), and having regard for the evidence in support of the findings of fact made by Mr. Justice Maurice, we are of the view there is no tenable basis to interfere with his judgment, both as it pertains to the inventory and valuation of the matrimonial property of the parties and to the issue of spousal support. [2] Accordingly, the appeal is dismissed, with costs to the respondent, such costs to be taxed in the usual manner.

No facts were cited. HELD: The appeal was dismissed with taxed costs to the respondent. There was no tenable basis to interfere with the judgment with respect to the inventory and valuation of matrimonial property and issue of spousal support given the standard of appellate review and the evidence in support of the findings of fact.

2_1999canlii12349.txt

SUPREME COURT OF NOVA SCOTIA Citation: King v. RBC Dominion Securities Inc., 2012 NSSC 225 Date: 20120613 Docket: Syd. No 246513 Registry: Sydney Between: Henry David King and Joyce Carmel King v. RBC Dominion Securities Inc./RBC Dominion Valuers Mobiliers Inc. body corporate, and Frank Youden Respondents LIBRARY HEADING Judge: The Honourable Justice Cindy A. Bourgeois Heard: June 11, 2012, in Sydney, Nova Scotia Decision: June 13, 2012 Subject: Consolidation of proceedings Civil Procedure Rules 37.02 and 37.03 Summary: The Applicants sought to consolidate their claim against the Defendants, with three other actions, all involving the same Defendants and allegations regarding the improper negligent conduct of an investment advisor. Issue: Should the matters be consolidated, heard at the same time, or heard in sequence? Result: After reviewing the Rules, case authorities and material before the Court, the motion was dismissed SUPREME COURT OF NOVA SCOTIA Citation: King v. RBC Dominion Securities Inc., 2012 NSSC 225 Date: 20120613 Docket: Syd. No 246513 Registry: Sydney Between: Henry David King and Joyce Carmel King v. RBC Dominion Securities Inc./RBC Dominion Valuers Mobiliers Inc. body corporate, and Frank Youden Respondents Judge: The Honourable Justice Cindy A. Bourgeois Heard: June 11, 2012 in Sydney, Nova Scotia Decision: June 13, 2012 Counsel: Robert Risk and Jennifer Anderson, for the Applicants Roderick Rogers, Q.C., on behalf of Nigel Campbell, for the Respondents By the Court: Introduction: [1] This is motion brought by Henry and Joyce King, originally seeking consolidation of an action in which they are plaintiffs with three other named actions. All four matters have common defendants, namely RBC Dominion Securities Inc. and Frank Youden. [2] It would appear that all four plaintiffs are represented by Mr. Risk and Mr. McPhee of Sampson McDougall. In all four actions, the defendants are represented by Mr. Campbell of Blakes. Mr. Rogers responded to this motion on behalf of Mr. Campbell. [3] It appears to be unrefuted that the plaintiffs in all four actions were former clients of the Defendant RBC, having held investment accounts during certain periods of time. It is alleged that the investment advisor personally responsible for the respective accounts was Mr. Bagnell. Mr. Bagnell was allegedly supervised by Mr. Youden. [4] In the four actions, each plaintiff claims that Mr. Bagnell negligently managed their respective accounts, and all are seeking the same type of financial damages, along with “aggravated, punitive and exemplary damages”. It is further alleged in each action, that the Defendant Youden negligently failed to supervise Bagnell, and that RBC, as the employer of both men, is vicariously liable. [5] Although the position of the parties will be canvassed in greater detail herein, at this juncture it may be helpful to comment upon the somewhat shifting nature of the remedy being sought by the Applicants. [6] In their thorough written submissions, the Applicants clearly focussed upon establishing why consolidation (pursuant to Rule 37.02) of the four actions was an appropriate remedy. Although the Applicants did reference the possibility of the matters being heard together (pursuant to Rule 37.03) in their written submissions, such was clearly not the preferred remedy sought. What was clearly indicated was that the Applicants did not seek, or want the actions heard in sequence. [7] At the outset of oral arguments, Mr. Risk advised the Court that although the Applicants were still seeking consolidation, based upon his view of the uncertainty of the law of consolidation in light of the new Rules, such was giving rise to concern. Mr. Risk did not want to create, by consolidation, situation where the determination of the issues relating to one plaintiff would be conclusive of the other three actions. If such would be the effect of consolidation, Mr. Risk advised that the Applicants would want the matters to be heard together, pursuant to Rule 37.03. [8] Following the Respondents’ oral submissions, Mr. Risk again altered the nature of the remedy being sought by the Applicants. Specifically, it was requested that the Court consider as an appropriate remedy, directing that all four matters be heard sequentially. As noted above, in the Applicants’ written submissions, this was remedy that was opposed. [9] In their Notice of Motion, the Applicants rely upon Civil Procedure Rules 37.02 and 37.03 which read: 37.02 judge may order consolidation of proceedings if the proceedings to be consolidated are of the same kind, that is to say, actions, applications, applications for judicial review, or appeals, and one of the following conditions is met: (a) common question of law or fact arises in the proceedings; (b) same ground of judicial review or appeal is advanced in the applications for judicial review or appeals and the ground involves the same or similar decision-makers; (c) claims, grounds, or defences in the actions or applications involve the same transaction, occurrence, or series of transactions or occurrences; (d) consolidation is, otherwise, in the interests of the parties. 37.03 judge may order that proceedings be tried or heard together, or in sequence. [10] Although not specifically plead or mentioned by either party, given the arguments raised by both Counsel, the Court has taken note of Rule 37.04 which provides: 37.04(1) judge may order common issues in two or more proceedings be tried, or heard, together. (2) The judge who orders the trial, or hearing, together of common issues may provide times for the trial, or hearing, of the issues that are to be tried, or heard, separately. [11] have also considered Section 41(g) of the Judicature Act, R.S.N.S., 1989, c.240 which provides: 41. In every proceeding commenced in the Court, law and equity shall be administered therein according to the following provisions: (g) the Court, in the exercise of the jurisdiction vested in it in every proceeding pending before it, shall have power to grant, and shall grant, either absolutely or on such reasonable terms and conditions as to the Court seems just, all such remedies whatsoever as any of the parties thereto appear to be entitled to in respect of any and every legal or equitable claim properly brought forward by them respectively in the proceeding so that as far as possible all matters so in controversy between the parties may be completely and finally determined and all multiplicity of legal proceedings concerning any of such matters avoided. [12] Consideration of consolidation motion is also guided by common law authority. Although there have been several decisions rendered under the new 2009 Rule, it is recognized that authorities made under the 1972 Rules have continuing applicability (See Comeau v. Ballam Insurance Services Ltd. 2010 NSSC 404 (CanLII)). [13] Most, if not all case authorities from this jurisdiction refer to the principles outlined by Saunders, J. (as he then was) in Stone v. Confederation Life Insurance Co. (1993), 1992 CanLII 6302 (NS SC), 117 N.S.R. (2d) 194. Adopting the approach endorsed by the Prince Edward Island Supreme Court, His Lordship outlined six factors for consideration on motion for consolidation, as follows: [10] Prince Edward Island’s Procedure Rule 39.01 is identical to our Civil Procedure Rule 39.02. In Re Hillcrest Housing Ltd. and Clans Ltd., supra, the court in considering whether an order should be made for consolidation, referred to six factors relevant to this determination. The factors are stated at p.247 of the decision and can be summarized as follows: (1) the general convenience and expense; (2) whether jury notice is involved; (3) how far the actions have progressed; (4) whether the plaintiffs have separate solicitors; (5) actions should not be consolidated where matters relevant in one action have arisen subsequent to the commencement of the other, and the actions have proceeded to considerable extent; and (6) where consolidation is otherwise proper, the fact that on discovery questions would be unobjectionable in one action which might be privileged in the other action is not sufficient reason for refusing an order consolidating the actions. [14] In addition to the above, Saunders, J. further noted as follows: “In addition, the court recognized the principle formulated in number of cases and stated at p.247: ‘The common element in these decisions is that in order for consolidation to be ordered decision in one case would dispose of the essential cause of action in the other case.’” [15] It is the above principle which appears to be the source of angst for the Applicants, and the root of the alternate remedies being advanced in this motion. Mr. Risk is fearful that the application of the above principle may result, if the matters are consolidated, in the Plaintiff King’s claim being completely disposed of based upon the outcome of another plaintiff’s claim. [16] This fear is unfounded in my view for two reasons. Firstly, the above quote is not intended to reflect mandatory outcome should two or more actions (or other matters) be consolidated. It was intended to be statement of one of the determining factors required to support consolidation motion in the first instance. Secondly, recent case law has indicated that as factor in consolidation motion, it is not mandatory. [17] Although the continuing relevance of the six factors outlined by Saunders, J. has been continually endorsed, including recently by the Court of Appeal in Best Pontius, 2009 NSCA 39 (CanLII), there has been some divergent consideration as to whether it is mandatory in order to successfully argue for consolidation that “a decision in one case would dispose of the essential cause of action in the other case.” [18] Although that remains an important consideration favouring consolidation, the absence of same does not preclude it. As noted by Hood, J. in MacNutt Nova Scotia (Attorney General) 2005 NSSC 337 (CanLII), and very recently by Rosinski, J. in Jeffrie v. Hendriksen, 2011 NSSC 351 (CanLII), an alternate consideration is whether the proceedings in question are “inextricably intertwined”. With respect, disagree with Counsel for the Applicant that the law with respect to consolidation has become unclear since the advent of the new Rules. It remains, as it was in the past, balancing of factors. Position of the Parties: [19] Having now reviewed the framework in which this motion is to be considered, turn to the positions advanced by the parties. [20] The original and primary position of the Applicant is nicely summarized in their Counsel’s brief as follows: It is submitted that the four actions sought to be consolidated in this motion meet the test contained in Rule 37.02. Firstly, the four proceedings sought to be consolidated are of the same kind, each being an action initiated under the Nova Scotia Civil Procedure Rules (1972). Further, each action involves common questions of law and fact arising out of the management and supervision of similar investment accounts over similar period of time. Finally, consolidation is otherwise in the interests of the parties. [21] The Applicants highlight that the actions brought against the Defendants are identical, raising the same issues as it relates to the negligent management by Mr. Bagnell with each plaintiff during an overlapping period of time. It is submitted that judicial economy is very important consideration, as expert evidence will be adduced in each matter relating to the standard of care and quantification of damages. The Court should avoid duplication. Further, as each plaintiff intends to elect trial by civil jury, it is argued in support of its preferred remedy of consolidation, that it would be highly duplicitous and an unreasonable use of court resources to undertake four separate trials. [22] In support of the alternate remedy of sequential trials, the Applicants submit that this is remedy within the Court’s discretion to grant, if consolidation is found to be inappropriate. The Applicants rely upon the decision of the Alberta Court of Queen’s Bench in Jeerh v. Yorkton Securities Inc. 2004 ABQB 975 (CanLII). [23] The Respondents take very contrary view. Although acknowledging the pleadings establish that the Defendants and the nature of the claims against them are identical in all four matters, the Respondents submit that the legal and factual issues to be determined in each action are very individualized, and certainly not common across all four actions. Similarities are acknowledged, but such are not sufficient to justify consolidation. The Respondents submit the same concerns apply to having the actions heard together. [24] By way of example, as it relates to the standard of care, the Respondents assert as follows in their written submissions: “For the same reason, there is little to no overlap in the issues of law amongst the claims of the Moving Parties. The abstract professional standards to which the Respondents are subject, such as the jurisdiction of the IDA over the Respondents, are not controversial and will take minimal time to establish. The more contentious questions of law, namely what professional and legal standards applied in the context of given relationship with each Moving Party, will turn on the unique circumstances and preferences of each specific Moving Party. Conduct that may be breach of legal or professional obligation for one Moving Party could be perfectly acceptable for another. As such, determination on the questions of law raised by one Moving Party will say nothing about the same issue with respect to another Moving Party.” [25] As to whether consolidation is in the best interest of the parties, the Respondents assert that the Applicants’ wish to have single jury hear the matter is problematic. It is asserted that having the jury hear allegations of negligence arising from series of transactions involving four different plaintiffs would be tantamount to permitting similar fact evidence. The perils of such evidence, and in particular the improper influence such may have on single jury ought to be, in the Respondents’ submission, fatal to motion for consolidation, or having the actions heard together. [26] The Respondents further submit that given the lateness in which it was raised, this Court should not consider the alternative remedy of sequential trials. Even if it is considered, the Respondent submits that the material before the Court does not support the appropriateness of an order in that regard. Determination: [27] have considered the excellent written and oral submissions of both Counsel, the applicable Rules and case authorities. have also considered the evidence filed in support of the motion, consisting of affidavits from the Applicant, as well as the Plaintiffs in the other three actions. From those affidavits note, that there is consent to the consolidation and all plaintiffs intend to proceed by way of jury. It is also apparent from the evidence provided that the time frames in which Mr. Bagnell interacted with the individual plaintiffs did overlap, to certain extent, but also covered differing periods of time. By way of example, the time frame asserted by the Plaintiffs in which they allege Mr. Bagnell and Mr. Youden “employees of RBC, were negligent in the handling of accounts” in their respective affidavits are as follows: Applicants King February 28, 1998 to March 31, 2003; Plaintiff Fraser February 1, 2000 to March 31, 2003; Plaintiffs Murphy July 23, 1998 to October 28, 2004; Plaintiff Black April 1, 1997 to May 30, 2003. [28] Each affidavit also confirms the nature of the causes of action contained in the respective pleadings. [29] Turning now to Rule 37.02, given that these matters are all actions, can proceed to the other considerations as outlined. (a) common question of law or fact arises in the proceedings: [30] Based on the identical nature of the pleadings, accept that there are shared questions of law amongst the four actions. In all actions the standard of care of reasonable investment advisor and supervisor will need to be determined. Should negligence be established, the Court will also likely rely upon the same principles in terms of proper quantification of financial losses. [31] Beyond the assertions contained in the pleadings, however, there is little evidence in support of the motion to assist the Court in fully appreciating just how similar, and potentially duplicitous the evidence at four separate trials will be. [32] In my view, in order to be supportive of consolidation, there should, except perhaps in the most simple of cases, be more than just single common question of law or common question of fact. The Court in most instances will be tasked at looking at the degree of commonality between two or more matters the more issues and facts in common, the more supportive such will be of consolidation. [33] It should be remembered however, that it is the Applicant who bears the burden of proof, and must marshal evidence accordingly. Although from the pleadings and submissions of Counsel, the Court accepts that expert evidence will be called, there is nothing before the Court to permit me to assess the degree of overlap in the evidence to be adduced on behalf of each plaintiff. [34] Are the same experts being called in relation to each claim? In terms of financial quantification do the expert(s)’ reports overlap in terms of duplication of content, and if so, to what degree? Are experts being called to prove and quantify the aggravated damages claimed in the four actions? If so, are there common facts and issues as between some or all of the four claims? [35] The answers to the above queries are just examples of the type of information the Court would find helpful in understanding the extent of commonality in the evidence to be adduced at trial, and in particular how such impacts on trial time and risk of evidence being duplicated. When raising this concern with Mr. Risk, it was suggested that the pleadings and submissions of Counsel should suffice, and that nothing more could or should reasonably be presented to the Court in terms of evidence. [36] In support of this view, Mr. Risk relies upon the opening comments of Rosinski, J. in Jeffrie v. Hendriksen, supra who writes: “[1] Contested Motions to Consolidate two proceedings involve the application of well established legal principles to uncertain facts. The decision to do so is necessarily discretionary, and particularly difficult to justify to rigorous standard, because the judge is asked to predict the timing and context of not just one, but two previously separate proceedings, and compare the consequences expected should the matter proceed separately as opposed to together. [2] Into this uncertain terrain, now tread.” [37] certainly agree with the sentiment expressed by Justice Rosinski that motions for consolidation do, by their nature, call upon the Court to gaze to some degree into the future. However, what must be kept in mind is that the Court needs to be afforded some evidentiary foundation upon which to base the endeavour. In that instance, Justice Rosinski was considering the proposed consolidation of two applications. Therefore, the Court would have had the benefit of some affidavit evidence upon which to embark upon the comparison of “the consequences expected should the matters proceed separately as opposed to together.” That is not the case here. [38] Rather, appear to find myself in similar position as Moir, J. in Shane v. Allen, 2011 NSSC 28. Although the Notice of Motion there indicated that consolidation was being sought, much like here, the remedy changed during Counsel’s submissions. There, the motion was dismissed due to lack of evidence establishing sufficient commonality regarding the nature of evidence intended to be called at trial. [39] Consolidation was originally sought of nine actions involving investor plaintiffs, an individual investment advisor defendant, and several other corporate defendants. Through submissions it became apparent that complete consolidation of all issues was not being sought, but rather some issues to be dealt with in common, others separately. The motion was ultimately dismissed with the Court explaining: ... do not consider that the court is at this stage sufficiently furnished with information about the claims to be able to make reasonable assessment of which issues could be tried in common and which issues have to be set to be tried individually.” [40] As the matter presently before the Court appears to be quite similar to that addressed by Moir, J., his additional comments are instructive, and in my view, equally applicable to the matter before me: “[4] As Mr. Awad suggests, the issue of vicarious liability is likely one that could be common. It may even be one that could be determined separately as question of law. Negligent supervision could be common issue. There may be sub-issue about causation that would have to be set off as individual. simply do not have enough evidence about the case to make that conclusion. The supervision issue could be common issue if we see it to allege systemic problems as opposed to one time failure. Again, would need to be furnished with information to make that kind of assessment. [5] Punitive damages cannot be determined until after the assessment of compensatory damages because compensatory damages have to be taken into consideration in settling the amount of punitive damages. It is also the case that any liability for punitive damages will depend upon the culpability toward each individual not culpability toward the group as whole. Again, am not furnished with information by which can assess whether individual culpability is that important or not. [7] Turning to the cause of action in negligence. As Mr. Pierce points out, even the duty itself, when it goes beyond an investment advisor’s obligation to see to the execution of the client’s orders and the fundamental and simple obligations of an investment advisor becomes rather individualistic. Again, it may be of that all of the cluster of issues around negligence can be reduced to something common and the differences will not matter, but have not been furnished, by evidence, with enough information to make that kind of assessment. [8] The consequential damages are individual to each client. must say that the process of assessing the individual damages will be eased great deal by findings that are common if the cases have enough commonality between them. At this stage, all can say is that the consequential damages require their individual assessment. [9] The issue of aggravated damages is individual because it is meant to compensate the plaintiff for the plaintiff’s own loss and that is not exactly the same in every case. Again, unless evidence shows that everyone was treated the same way and everyone had roughly the same reaction to the treatment aggravated damages requires individual assessments. have not been furnished with evidence suggesting that.” [41] Based on the material before me, although there are some common legal issues as plead, cannot determine what degree of commonality exists between the four actions. There will be common issues and facts. However, it is not possible at this juncture to determine the degree of commonality, in what the pleadings disclose as being four relatively complex actions. (b) same ground of judicial review or appeal is advanced in the applications for judicial review or appeals and the ground involves the same or similar decision-makers. [42] This condition does not apply in the present instance. (c) claims, grounds, or defences in the actions or applications involve the same transaction, occurrence, or series of transactions or occurrences. [43] The Applicants rely on this condition as supportive of their request for consolidation. They assert that all four causes of action arise from series of negligent financial transactions undertaken by Mr. Bagnell. [44] The Respondents characterize the transactions much differently. Although acknowledging the transactions are similar in nature and have the commonality of Mr. Bagnell’s involvement, they do not fall into the condition as specified in the Rule. [45] agree with the approach put forward by the Respondents. Rule 37.02(c) contemplates the actions involving the “same transaction, occurrence, or series of transactions.” The use of the word “same” as opposed to “similar” is instructive. [46] In all four actions, the allegations of negligence arise from transactions undertaken in each respective plaintiffs’ investment accounts. Although some were in the same time frame, some are separated widely in time. By way of example, according to the affidavits Plaintiff Black will be raising concern about transactions undertaken in April, 1997. Plaintiff Murphy will be raising concern about transactions undertaken until October 2004. There does not appear to be connection among the transactions undertaken in all four actions, other than Mr. Bagnell’s involvement. The pleadings clearly state each plaintiff had their own investment accounts which are the subject matter of their litigation. There is no evidence before the Court to establish that the series of transactions are all part of the “same” transaction as contemplated by the Rule. (d) consolidation is otherwise, in the interests of the parties: [47] This conditions allows broad approach to assessing motion for consolidation. [48] The six factors outlined in Stone, supra can, in my view, be considered as part of this final condition. [49] Considering the six factors, note that the plaintiffs have all indicated that jury trial will be selected, there is also commonality of counsel, and Mr. Risk in his submissions indicates that all four actions are at the same stage of litigation. Factors and do not appear to have application in the present case. [50] The factor heavily relied upon by the Applicants, is that general convenience favours consolidation, as expense will be greatly lessened, if the matters are consolidated. [51] Based on Counsel’s submission, accept that similar expert evidence will need to be called in support of all four claims. As noted earlier, this would be in relation to standard of care, and quantification of damages. The Applicants seek to avoid having the same experts testify about the same matters at four trials. This of course, would also be in the best interest of all parties and the Court. [52] am not, however, based on the material before me, satisfied as to the extent of evidentiary overlap which would result should the trials remain separate. In fact, based on the individual pleadings, it seems as if much of the expert evidence adduced would have to be specific to each individual plaintiff’s claim. Each of their financial losses would be particular to the quantum invested, the nature of the investments made, and the market conditions. Even if some time savings could be had by witnesses testifying once as to common matters, it seems more likely that experts will spend considerable time addressing the unique claims of each plaintiff. am reminded of the words of Saunders, J. in Stone, supra, where he states at para. “[9] While on its face, there may be some attraction to the argument that judicial economy would invite combination of cases where some of the medical experts may be the same persons, there is much more to an application for consolidation than that. must consider all of the circumstances, all of the issues that have been raised by the parties in their respective litigation and determine whether or not it would be just and appropriate to combine those two cases. Having done so, am convinced there are cogent reasons for refusing consolidation.” [53] As final matter, share the Respondents’ concern with respect to the impact on single jury of hearing multiple allegations of negligence relating to four sets of plaintiffs. Perhaps this concern could be minimized if further evidence in relation to the commonality of issues had been before the Court, however, at this stage, it is valid concern. [54] Having considered all of the above, cannot conclude that the four actions are “inextricably intertwined”, nor that the outcome of one will be conclusive of the other three. Although the Applicants have demonstrated that they can bring themselves, to some degree within the conditions in Rule 37.02, and the Stone factors, am not convinced that consolidation is appropriate. [55] Having determined consolidation is not appropriate, turn now to the alternative remedies sought, namely that the matters be heard together, or in sequence. The Applicant has made it clear that they intend to have civil jury trial, regardless of how the matters are ultimately formulated. This would include the intention of having one jury hear four consecutive trials. [56] In terms of having the trials heard together, again, am not satisfied that the nature of the evidence to be called at the trials of these matters would make such an outcome appropriate. There is inadequate evidence before the Court to appreciate the consequences on the form, length and structure of the resulting proceedings to knowledgeably make such determination. [57] As for the Applicant’s request to have the trials heard in sequence, decline to consider that matter. That request was raised for the first time by the Applicants in their reply oral submissions. Their written submissions had specifically indicated they were not seeking sequential trials. It is unreasonable in my view, to “switch gears” at such late stage, without giving the Respondents any type of reasonable opportunity to meaningfully address the request. [58] As an observation, Rule 37.04 may have the most applicability to the present instance. It was, however, not relied upon by the Applicant. Perhaps, should the common issues and factual matters be better articulated, the Court could, in future consider the appropriateness of remedy thereunder. [59] The motion is accordingly dismissed. Should the parties be unable to agree with respect to costs, written submissions should be filed no later than July 6, 2012.

, motion denied. The court considered Rule 37.02(c) and distinguished between the terms 'same' and 'similar' with respect to claims involving the 'same transaction' and determined the use of the term 'same' indicated it must involve the same transaction and not merely similar transactions. The court stated that there should be more than a single common question of law or question of fact except in the simplest of cases to grant a motion for consolidation. The more issues and facts in common, the more supportive those factors will be toward consolidation. The court found there was insufficient evidence of commonality between the actions and dismissed the applicants' motion for consolidation on the basis that the actions were based on similar transactions but not the same transactions. The court did not consider the applicant's request to have the matters heard sequentially because it was raised only during their reply oral submissions to the court. The court suggested that Rule 37.04, which would have allowed for common issues to be tried or heard together, would have been most applicable but was not relied upon by the applicants. The court dismissed the motion.

b_2012nssc225.txt

Q.B. A.D. 1994 No.354 J.C.P.A. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF PRINCE ALBERT BETWEEN: DARRYL WILLOUGHBY, Litigation Guardian for ANGELA WILLOUGHBY, An Infant and EDITH LARSEN, HAROLD LARSEN, and THE BOARD OF EDUCATION OF THE PARKLAND SCHOOL DIVISION NO. 63 OF SASKATCHEWAN, ROBERT EARL KRAFT and MORGAN DRIVE AWAY INC. DEFENDANTS R. J. Lane for the plaintiff (applicant) J. A. Bailey for the defendants, Edith Larsen and Harold Larsen R. J. Rath for the defendant, The Board of Education of the Parkland School Division No. 63 of Saskatchewan FIAT ROTHERY J. February 18, 1998 This is an application pursuant to Rule 188 of TheQueen's Bench Rules of Court for a determination of thesepoints of law: 1. Whether the defendant, Edith Larsen is liablepursuant to s. 86(1) of The Highway Traffic Act,R.S.S. 1978, c. H - 3.1, for the personal injuriessustained by the infant plaintiff, AngelaWilloughby, or whether Edith Larsen is immune fromsuch liability by virtue of s. 228 [now s. 232] ofThe Education Act, R.S.S. 1978 (Supp.), c. E - 0.1[now The Education Act, 1995, SS. 1995, c. E - 0.2]. 2. In the event Edith Larsen is immune fromliability by virtue of s. 228 of The Education Act,whether the co-defendant, Harold Larsen, is liablepursuant to s. 86(1) of The Highway Traffic Act forthe infant plaintiff's personal injuries. The parties proceeded on the following agreed statement of facts: 1. The infant plaintiff, Angela Willoughby, was student at Canwood School, school operated by the defendant, the Board of Education of the Parkland School Division, No. 63 of Saskatchewan. 2. On or about May 20, 1993, the infant plaintiff was passenger in an automobile driven by the defendant, Edith Larsen, owned by the co-defendant, Harold Larsen. At all material times, the automobile was not stolen or otherwise wrongfully taken out of the possession of Harold Larsen, nor out of the possession of any person entrusted by him with his care. 3. The said automobile was involved in collision with another vehicle owned by the defendant, Morgan Drive Away Inc., and operated by the defendant, Robert Earl Kraft, at or near Saskatoon, Saskatchewan, resulting in the infant plaintiff's bodily injury, loss and damage. 4. The aforesaid collision and the infant plaintiff's bodily injury and resulting loss and damage was caused by the negligence of the defendant, Edith Larsen. 5. The aforesaid motor vehicle accident occurred while the infant plaintiff was being transported to recreation area on field trip, approved by the defendant School Board, and Edith Larsen was the teacher within the meaning of the provisions of The Education Act, S.S. 1988 89, c. 0.1. The plaintiff discontinued its action against both Robert Earl Kraft and Morgan Drive Away Inc. Counsel for the plaintiff supports the position enunciated by counsel for the Board of Education. The Board argues that Edith Larsen is liable for the plaintiff's personal injuries. If she is not liable, Harold Larsen, the owner of the motor vehicle driven by Edith Larsen, is liable for the plaintiff's injuries. cannot find in favour of the Board. Edith Larsen is immune from liability byoperation of The Education Act. Harold Larsen, as theowner of the motor vehicle, is only liable to the sameextent as the driver. That is, Edith Larsen's immunity extends to Harold Larsen. STATUTORY PROVISIONS Section 86(1) of The Highway Traffic Act states: When any loss, damage or injury is caused to person by motor vehicle, the person driving it at the time is liable for the loss, damage or injury if it was caused by his negligence or improper conduct, and the owner of the motor vehicle is also liable to the same extent as the driver, unless at that time the motor vehicle had been stolen from the owner or otherwise wrongfully taken out of his possession or out of the possession of person entrusted by him with its care. Section 228(1) of The Education Act (basically the same as the present s. 232(1)) states: Where board of education, principal or teacher approves or sponsors activities during school hours or at other times on school premises or elsewhere, no teacher, principal or other person responsible for the conduct of pupils shall be liable for damage caused by pupils to property or for personal injury suffered by pupils during those activities. Section 91 (bb) [now s. 85(1)(bb)] of The Education Act requires the board of education to: keep in force policy of insurance for the purpose of indemnifying: (i) the board and its employees in respect of any claim for damages to property or for personal injury or death arising from any program, activity or service authorized or provided by the board, or from any approved activity mentioned in section 228, and the board may, in its discretion, also indemnify parents and citizen volunteers; (ii) the board and teachers employed by the board in respect of any claim for damages arising from the performance of duties and functions of teachers under this Act that are required or approved by the board; (iii) the division in respect of any claim for damages arising out of arrangements of the board for the transportation of pupils to and from school or to and from other places for the purpose of engaging in activities authorized by ANALYSIS Counsel for the school board argues that s. 86(1) of The Highway Traffic Act and s. 228(1) of The Education Act are in conflict. The Highway Traffic Act imposes liability on negligent driver, but The Education Act grants teacher immunity from liability. Counsel for the school board submits that the conflict may be avoided by applying the statutory interpretation principle of generali specialibus non derogant. This principle of statutory interpretation explained in Sullivan's text, Driedger on the Construction of Statutes (3d) (Butterworths Toronto) at pp. 186-187 refers to R. v. Greenwood (1992), 1992 CanLII 7750 (ON CA), O.R. (3d) (Ont. C.A.) at p. 7: The maxim generalia specialibus non derogant means that, for the purposes of interpretation of two statutes in apparent conflict, the provisions of general statute must yield to those of special one Applying this maxim of construction, the provisions of the special statute are not construed as repealing the general statute, but as providing an exception to the general By treating the special statute as creating an exception to the general, the two statutes are then brought into harmony. Counsel for the School Board argues that, in thiscase, The Education Act is the general statute dealingwith teacher's liability and immunity in a general way. Oppositely, The Highway Traffic Act is specifically directed to liability arising from motor vehicle negligence. Therefore, counsel submits the specific creates an exception to the general, and negligent teacher/driver, even acting within the scope of s. 228 of The Education Act, is liable for the injury to the plaintiff pupil. I cannot agree with this analysis. First, there isno apparent conflict between the statutes. When they are read together, the legislation provides that negligent teacher/driver is granted immunity from liability if the teacher has acted within the scope of s. 228 of The Education Act. Even if there were an apparent conflict between the two statutes, careful analysis would lead one to conclude that The Highway Traffic Act is the general statute, governing liability of all drivers of motor vehicles. The Education Act specifically provides an immunity toteacher's liability when acting within the scope of s.228 of The Education Act. The immunity only applies toteachers and principals. (See Thompson v. The Board of Education of the Eston-Elrose School Division No. 33 et al (1997), 1997 CanLII 11450 (SK QB), 154 Sask.R. 182 (Q.B.). Section 91(bb) [now s.85(1)(bb)] of The Education Act requires that the school board maintain insurance to indemnify the board and its teachers acting within the scope of their duties. This further illustrates that the teacher's immunity is an exception to the general liability provisions of The Highway Traffic Act. TheEducation Act ensures that the school board is liable forany negligence of its teachers and principals and thatplaintiffs have recourse for negligence against theschool board and its insurer. The injured plaintiff isnot denied a party to sue for negligent operation of avehicle. The party is the school board, not the teacher. On the basis of this analysis and the agreed facts,I find that Edith Larsen was acting within the scope ofher duties under s. 228 [now s. 232] of The EducationAct. She is therefore immune from liability in thisaction commenced by the plaintiff pupil. Secondly, find Harold Larsen, the owner of the motor vehicle driven by Edith Larsen, to be immune from liability as well. This conclusion is based on the wording of s. 86(1) of The Highway Traffic Act itself. Counsel for Harold Larsen submits that the case of Neault v. Pollard (1996), 1996 CanLII 6967 (SK QB), 140 Sask. R. 26 (Q.B.) is on point and ought to be followed. Neault is authority for the principle that because The Workers' Compensation Act restricts the right of action that worker might have against co-worker for injuries sustained while acting in course of employment, the wording of s. 86(1) of The Highway Traffic Act extends that restriction to the owner of the motor vehicle involved in the accident. Counsel for the school board argues that the Neault case is distinguishable on its facts, because the parties to that Rule 188 application agreed that the plaintiff and driver were both "workers" as defined by The Workers' Compensation Act. That distinction is illusory. The parties to the Neault case agreed The Workers' Compensation Act applied. The parties to this application agree that Edith Larsen falls squarely within the provisions of s. 228 of The Education Act. That being so, because s. 86(1) of The Highway Traffic Act provides that the "owner of the motor vehicle is liable to the same extent as the driver", the teacher's immunity extends to the owner. Counsel for the School Board asked me to consider the Thompson case, supra, and McKay and McKay v. Board of Govan School and Molesky (1967), 1967 CanLII 430 (SK CA), 60 W.W.R. 513 (Sask. C.A.) as authority for maintaining liability against the owner of the motor vehicle. Those two cases are of no assistance. They deal solely with the interpretation of The Education Act and the extent to which the school board remains liable, even though the teacher might be immune from liability. find the reasoning in Neault to be directly on point. Just as The Workers' Compensation Act and The Highway Traffic Act prevent the injured worker from suing the owner of the vehicle because he is prevented from suing the driver, The Education Act extends the same immunity to the owner as it does to the driver by operation of the same s. 86(1) of The Highway Traffic Act. For the reasons stated, find Edith Larsen's immunity under The Education Act extends to the owner of the motor vehicle, Harold Larsen. Because Edith Larsen is not liable to the plaintiff pupil, neither is Harold

FIAT. An application pursuant to Rule 188 for a determination of whether the defendant was liable pursuant to s86(1) of the Highway Traffic Act for the personal injuries of the infant plaintiff or was immune from liability by virtue of s228 [now s232] of the Education Act. The second point of law to be determined was whether the co-defendant as car owner was liable if the driver was found to be immune from liability. The motor vehicle accident occurred while the infant plaintiff was being transported during a field trip, approved by the defendant school board, and the defendant was the teacher. HELD: 1)The teacher/driver was acting within the scope of her duties and was immune from liability by virtue of the Education Act. 2)The owner was only liable to the same extent as the driver. The reasoning in Neault was directly on point. Just as the Workers' Compensation Act and the Highway Traffic Act prevent the injured worker from suing the owner of the vehicle because he is prevented from suing the driver, the Education Act extends the same immunity to the owner as it does to the driver by operation of s86(1) of the Highway Traffic Act. 3)There was no apparent conflict between the statutes. When read together, the legislation provides that a negligent teacher is granted immunity from liability if the teacher has acted within the scope of the Education Act. The Traffic Act is the general statute, governing liability of all drivers. The Court did not agree with the School Board's analysis that the Education Act was the general statute. 4)The injured plaintiff was not denied a party to sue for negligent operation of a vehicle as he had recourse against the school board and its insurer. The immunity under the Education Act only applies to teachers and principals.

c_1998canlii14058.txt

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 30 Date: February 4, 2011 Information: 30105329 Location: Regina Between: Her Majesty the Queen and Curtis Russell Francis Appearing: Mr. L. Hnatiuk For the Crown Mr. C. Demmans For the Accused VOIR DIRE AND TRIAL DECISION M.J. HINDS, [1] A trial took place before me regarding Curtis Russell Francis who is charged that on or about the 10th day of January A.D. 2009, at or near Regina, Saskatchewan, he did:1. While his ability to operate a motor vehicle was impaired by alcohol or drug operate a motor vehicle contrary to sections 255(1) and 253(1)(a) of the Criminal Code. 2. Having consumed alcohol in such quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, operate a motor vehicle, contrary to sections 255(1) and 253(1)(b) of the Criminal Code. [2] The Crown called five witnesses to testify at the trial: Constable Ahren Strueby, Constable Melissa Boxall, Dave Fowler, Lisa McDonnel and Constable Todd Gottselig. No witnesses testified for the defence. [3] At the onset of the trial, counsel for the Crown and the accused advised the Court that Constable Strueby obtained Warrant to Search for Blood samples from Justice of the Peace on January 10, 2009. The warrant resulted in blood samples being taken from the accused. The Court was further advised that the blood samples were subsequently analysed and the Crown would be seeking to have Certificate of Analyst setting out the concentration of alcohol in the accused’s blood and report from the analyst dated April 20, 2010, setting out the blood alcohol concentration of the accused at the time of the accident, admitted as evidence at the trial. [4] granted leave to cross-examine on the Information to Obtain Search Warrant. Guided by the Supreme Court of Canada’s decisions in R. v. Garafoli, [1990] S.C.R. 1461 and R. v. Lising, 2005 SCC 66 (CanLII), [2005] S.C.R. 343, found that the defence had established there was reasonable likelihood (i) that cross-examination is necessary to enable the accused to make full answer, and (ii) that cross-examination could elicit relevant and material evidence of probative value that may discredit the existence of the requisite reasonable grounds. [5] In this case counsel for the Crown and defence agreed that Constable Strueby should testify on voir dire for the purpose of the Court making determination of the validity of the warrant and the admissibility of Certificate of Analyst. Counsel for the Crown and accused also agreed that evidence heard on the voir dire of Constable Strueby could be applied to the trial proper. [6] The first issue before the Court arises from the voir dire and concerns whether the Information to Obtain blood samples contained sufficient grounds in support of the warrant. I found that it did not and as a result there was a breach of the accused’s rights under s. 8 of the Charter to be free from unreasonable search and seizure. I then conducted an analysis pursuant to s. 24(2) of the Charter respecting the violation of the accused’s s. 8 rights. I determined that the Certificate of Analyst and the report from the analyst dated April 20, 2010, should be admitted into evidence at trial. [7] then considered all of the evidence before me at trial. found the Crown had proved that the accused was operating his vehicle and was guilty of the offence of operating motor vehicle while over .08. entered judicial stay of proceedings on count one. The facts arising from the evidence at the voir dire [8] Constable Strueby was performing general patrol duties with Constable Dodds during the early morning hours of January 10, 2009. At 1:19 a.m., the officers were dispatched to attend motor vehicle collision which had occurred at 2007 6th Avenue in the City of Regina. The officers arrived at the scene in their patrol car at 1:22 a.m. Constable Strueby observed grey 1991 Ford Tempo vehicle wrapped around power pole on the north side of 6th Avenue. After observing the scene of the accident, Constable Strueby was of the view that the Tempo vehicle had been driving eastbound on 6th Avenue when it veered in northerly direction and struck power pole on the north side of 6th Avenue. [9] Constable Strueby observed male in his mid 20’s that was the sole occupant of the Tempo vehicle. He observed the male to be unconscious, with his feet located in the driver’s leg/foot area of the vehicle. The rest of the male’s body was slumped across the passenger’s seat. Emergency Medical Services personnel (hereinafter referred to as “EMS”) were on the scene of the accident and attending to the male, who was unresponsive. After short time, EMS extracted the male from the Tempo vehicle and put him in an ambulance. [10] Constable Strueby was advised by his police partner, Constable Dodds, that the registered owner of the Tempo vehicle was Curtis Francis. Constable Strueby later, independently, confirmed that the male he observed was Curtis Francis, using police database. [11] Constable Strueby accompanied EMS and Mr. Francis to the Regina General Hospital and to trauma room number seven, where Dr. Radford attended to him. [12] Constable Strueby initially testified that while he was at the scene of the accident, he smelled beverage alcohol in the interior of the Tempo vehicle. He testified that it was not an overly strong smell of alcohol. Constable Strueby testified that after Mr. Francis was extracted from the Tempo vehicle he could smell strong odour of alcohol in the ambulance and at the Regina General Hospital. [13] Dr. Radford and nurse worked on Mr. Francis in trauma room number seven. Constable Strueby observed that during this time, Mr. Francis lapsed in and out of consciousness. He also observed that at times Mr. Francis flailed his arms around. Dr. Radford was concerned that Mr. Francis had head injury. CT scan and X-rays were done on Mr. Francis. Constable Strueby was advised that Mr. Francis was in stable condition, however, the CT scan was positive for brain bleed. [14] Sergeant Bray attended at the hospital. Sergeant Bray directed Constable Strueby to get “blood warrant” for Mr. Francis. Constable Strueby testified that warrant was necessary for the following reasons: (1) he thought Mr. Francis had been driving his vehicle that early morning, (2) the vehicle had been in an accident, (3) it was apparent that Mr. Francis had been drinking alcohol, and (4) Mr. Francis was in no condition to consent to providing samples of his breath. [15] Constable Strueby had standard police “blood warrant kit” delivered to him at the hospital. [16] Constable Strueby completed an Information to Obtain Warrant For Blood Samples by writing in several areas of the form. Constable Strueby then went to Justice of the Peace Corey Boychuk’s home in the City of Regina. Constable Strueby testified that he signed the Information to Obtain before Justice of the Peace Corey Boychuk at 3:30 a.m. on January 10, 2009. The Information to Obtain reads as follows: This is the information of Constable Ahren Strueby Peace Officer in the Province of Saskatchewan, hereinafter called the informant, taken before me. The informant says that he has reasonable grounds to believe that the suspect, Curtis Francis has within the preceding four hours committed, as result of the consumption of alcohol, an offence under section 253 of the Criminal Code and was involved in an accident resulting in the injury to Curtis Francis person, to wit: brain bleed. The informant further says that there are reasonable grounds to believe that Dr. Radford, qualified medical practitioner is of the opinion that by reason of any physical or mental condition of the suspect that resulted from the consumption of alcohol, the accident or any other occurrence related to or resulting from the accident, the suspect is unable to consent to the taking of samples of blood and that the taking of samples would not endanger his life or health. The informant further says that his/her reasonable grounds for belief are as follows: Interior of vehicle smelled strongly of beverage alcohol. Accused Curtis Francis smelled of beverage alcohol. Wherefore the informant prays that warrant may be granted authorizing peace officer to require qualified medical practitioner to take, or to be taken by qualified technician under the direction of qualified medical practitioner, such samples of blood of Curtis Francis as in the opinion of the person taking the samples are necessary to enable proper analysis to be made in order to determine the concentration, if any, of alcohol in the blood. SWORN BEFORE me at 0330 hours this 10th day of January, A.D. 19 2008 at Regina, in the Province of Saskatchewan “Cst. A. Strueby 695” Signature of the Informant) Justice of the Peace in and for the Province of Saskatchewan [17] Constable Strueby testified that he incorrectly filled in the date in the jurat as being January 10, 2008, rather than the correct date of January 10, 2009. Constable Strueby did not, however, testify as to the reason, if any, that Justice of the Peace did not sign as the witness to the Information to Obtain. [18] Justice of the Peace Corey Boychuk issued Warrant to Search for Blood Samples from Curtis Francis on January 10, 2009 (Exhibit P-1 on the voir dire). The warrant specified that the blood samples were authorized to be taken between the hours of 1:22 o’clock a.m. and 5:22 o’clock a.m. [19] Constable Strueby went back to the hospital and gave the blood warrant to Dr. Radford. At 4:02 a.m., Dr. Radford drew two samples of Mr. Francis’ blood. Constable Strueby took possession of the blood samples and exhibited them at 4:58 a.m. on January 10, 2009. The samples were sent away for analysis. On June 28, 2009, Constable Strueby received Certificate of Analyst respecting the blood samples taken from Mr. Francis. [20] The Certificate of Analyst, Certificate of Qualified Medical Practitioner (Dr. Radford) and curriculum vitae of the analyst, Tracy Cherlet and her written report dated April 20, 2010, were marked as Exhibits P-2, and respectively, at the voir dire. [21] During cross-examination on the voir dire, Constable Strueby admitted: (a) The only information that he provided to Justice of the Peace Boychuk in support of the warrant was contained in the Information to Obtain. (b) The Information to Obtain did not contain any details of the accident. (c) He and EMS personnel arrived at the scene at the same time. Due to the severity of the accident, EMS took control of the scene. As result he does not know if EMS personnel moved Curtis Francis before he saw him in the vehicle. (d) He observed that Curtis Francis was not wearing seat belt. (e) He observed Mr. Francis’ buttocks to be situated on the driver’s side of the vehicle. (f) There was lot of damage done to the Tempo vehicle. The passenger side door was bent in as result of colliding with the power pole. (g) Despite his testimony during the voir dire that Curtis Francis “smelled strongly of beverage alcohol”, the Information to Obtain says that Curtis Francis “smelled of beverage alcohol”. (h) The Information to Obtain does not include the source of his belief that Mr. Francis was the driver of the vehicle. Nor does it speak to the reliability of the source of his belief. (i) There were witnesses at the scene of the accident. He was advised by Constable Dodds that these witnesses had not seen anyone flee from the Tempo vehicle. The Applicable Law Charter Voir Dire [22] The burden of proof rests upon the accused to establish on balance of probabilities that the warrant to seize his blood samples was invalid and that there was an infringement of his rights as guaranteed by s. of the Charter. [23] Section of the Charter states as follows: Everyone has the right to be secure against unreasonable search or seizure. [24] Section 256 of the Criminal Code deals with Warrants to Obtain Blood Samples. It reads as follows: (1) Subject to subsection (2), if justice is satisfied, on an information on oath in Form or on an information on oath submitted to the justice pursuant to section 487.1 by telephone or other means of telecommunication, that there are reasonable grounds to believe that (a) person has, within the preceding four hours, committed, as result of the consumption of alcohol, an offence under section 253 and that person was involved in an accident resulting in the death of another person or in bodily harm to himself or herself or to any other person, and (b) qualified medical practitioner is of the opinion that (i) by reason of any physical or mental condition of the person that resulted from the consumption of alcohol, the accident or any other occurrence related to or resulting from the accident, the person is unable to consent to the taking of samples of his blood, and (ii) the taking of samples of blood from the person would not endanger the life or health of the person, the justice may issue warrant authorizing peace officer to require qualified medical practitioner to take, or to cause to be taken by qualified technician under the direction of the qualified medical practitioner, such samples of the blood of the person as in the opinion of the person taking the samples are necessary to enable proper analysis to be made in order to determine the concentration, if any, of alcohol in his blood. justice of the peace may issue warrant to seize blood samples where the conditions prescribed in s. 256(1) of the Criminal Code are met. [25] In R. v. Clark, [1995] S.J. 566, Gerien J. discussed the requirements of s. 256(1) of the Criminal Code and the test to be applied on judicial review of the validity of warrant and the sufficiency of the information underlying it as follows at paragraphs 10 11: 10 Section 256(1) of the Criminal Code speaks of justice being satisfied “that there are reasonable grounds to believe that” person has committed an offence under s. 253 and was involved in an accident resulting in death or bodily harm. Section 253 creates the offences of driving while impaired or while the concentration of alcohol in person’s blood exceeds 80 milligrams in 100 millilitres of blood. The standard to be applied by the justice is that the grounds be such that “credibly-based probability” is established. Suspicion alone is insufficient. See: Director of Investigation and Research, Combines Investigation Branch et al v. Southam Inc. (1984), 1984 CanLII 33 (SCC), 41 C.R. (3d) 97 (S.C.C.). The justice must consider and weigh the grounds as presented and then decide whether they meet the standard. 11 When court is called upon to review the validity of warrant and the sufficiency of the information underlying it, the test to be applied is that stated in R. v. Garofoli (1990), 1990 CanLII 52 (SCC), 60 C.C.C. (3d) 161 at 188 (S.C.C.) and quoted in R. v. Grant (1993), 1993 CanLII 68 (SCC), 84 C.C.C. (3d) 173 (S.C.C.), at p. 195: The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. The approach to be taken has been set forth in R. v. Grant, supra, R. v. Wiley (1993), 1993 CanLII 69 (SCC), 84 C.C.C. (3d) 161 (S.C.C.) and R. v. Plant (1993), 1993 CanLII 70 (SCC), 84 C.C.C. (3d) 203 (S.C.C.) and adopted in this province in R. v. Richter (1994), 1994 CanLII 4663 (SK CA), 120 Sask. R. 257 (C.A.). [26] In R. v. Morelli, 2008 SKCA 62 (CanLII), [2008] S.J. No. 300, Hunter J.A. of the Saskatchewan Court of Appeal provided comprehensive summary of the standard of judicial review when there is challenge to the issuing of search warrant, at paragraphs 19 24: 19 In the instant case, the trial judge reviewed the information provided to the justice to obtain the search warrant. Counsel agree that in her review of the decision of the issuing justice, the trial judge correctly set out the applicable standard of review in R. v. Garofoli as follows: 2. The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge. The reviewing judge should not set aside this decision unless he or she is satisfied on the whole of the material presented that there was no basis for the authorization. 20 The standard of review set out in Garofoli has been affirmed in many subsequent cases including, R. v. Araujo, which confirm that the analysis of the affidavit in support of the search warrant is undertaken after any incorrect information has been excised and the information contained therein is amplified by the evidence given on the voir dire. 21 In R. v. Hopkins this Court noted that errors in the information provided to the justice do not automatically invalidate search warrant: [11] The reviewing court must still assess the facts placed before the authorizing justice in light of the additional evidence brought out at trial to determine whether there continues to be basis upon which the search warrant could have been issued: Araujo. Where an officer has reasonable grounds, acted in good faith, and made minor and technical mistakes in drafting the affidavit material, amplification evidence is permissible to determine whether the requisite grounds were present. 22 Further, with respect to the treatment of informant information and referring to Garofoli, the Court in Hopkins stated: [15] Thus, the “totality of the circumstances” must be considered. Weaknesses in one area can be offset by strengths in others. The issue is whether having regard for the totality of the information sworn to by the officer, the information is compelling, credible and corroborated (see: Debot and Plant, 1993 CanLII 70 (SCC), [1993] S.C.R. 281). [16] In Debot the Court considered number of factors with respect to whether the information provided by an informant was compelling, credible and corroborated. An informant’s tip may be found more compelling and credible according to the degree of detail and its specificity, such as the names of the participants in the offence; the location of the event; the time of day when the event was to take place; and whether the informant’s information came from first-hand observations or “mere rumour or gossip?” [19] The fact that more detail can lend greater credibility to an information does not mean that the police must provide more, The police officer has to provide sufficient detail so as to permit the justice of the peace to determine that reasonable grounds exist for the warrant to issue. [Footnotes omitted] 23 In R. v. Pires; R. v. Lising, the Supreme Court commented on the purpose of the Garofoli hearing as follows: [30] However, the Garofoli review hearing is not intended to test the merits of any of the Crown’s allegations in respect of the offence. The truth of the allegations asserted in the affidavit as they relate to the essential elements of the offence remain to be proved by the Crown on the trial proper. Rather, the review is simply an evidentiary hearing to determine the admissibility of relevant evidence about the offence obtained pursuant to presumptively valid court order.. .The reviewing judge on Garofoli hearing only inquires into whether there was any basis upon which the authorizing judge could be satisfied that the relevant statutory preconditions existed. Hence, there is relatively narrow basis for exclusion. Even if it is established that information contained within the affidavit is inaccurate, or that material fact was not disclosed, this will not necessarily detract from the existence of the statutory pre-conditions. The likelihood that the proposed challenge will have an impact on the admissibility of the evidence will depend on the particular factual context 24 The reviewing court examines whether the statements in the information are supported by the material contained therein, or whether they are more in the nature of conclusions. This question must be assessed against the “totality” test, looking to the whole information and excising any misleading parts. [See: R. v. Breton and R. v. Pastro.] [emphasis added] Analysis Re: Validity of Blood Warrant [27] In the present case, having reviewed the whole of the material presented, am of the view that there was no basis upon which the authorizing judge could be satisfied that the relevant statutory preconditions of s. 256 of the Criminal Code existed. [28] While do have concerns with the absence of Justice of the Peace Boychuk’s signature on the witness portion of the jurat on the Information to Obtain and with the date in the jurat (10th day of January A.D. 2008), am satisfied having heard the testimony of Constable Strueby (amplification) concerning the events of January 10, 2009, that he swore the information before Justice of the Peace Boychuk at 3:30 a.m. on January 10, 2009. am of the view this is technical error and is not fatal to the warrant. [29] In this case am of the view that Constable Strueby did not provide sufficient detail in the Information to Obtain so as to permit the Justice of the Peace to determine that reasonable grounds exist for the warrant to issue. [30] The Information to Obtain largely consists of boiler-plate. This is to be expected in such document. In R. v. Morelli, supra, Hunter J.A. made the following comment on the use of boiler-plate in Informations to Obtain: Boiler-Plate Statements 51 Some latitude must be allowed to those who prepare the materials in support of search warrant since the same are not prepared by lawyers. As is often the situation, as in the instant case, the Information is less than perfect and, of course, more information could have been disclosed. However, as noted earlier, errors, omissions and inaccuracies do not necessarily mean the search warrant should not have issued. [See: R. v. Hopkins and R. v. Pires.] [31] The first paragraph of the Information to Obtain is largely boiler-plate. It requires an individual to write in their name as the Peace Officer providing the information (Constable Ahren Strueby). The third paragraph requires the informant to write in the name of the physician whom they believe is of the opinion that the suspect is unable to consent to the taking of blood samples and that such blood samples would not endanger the suspect’s life or health (Dr. Radford). Likewise, paragraph five requires the informant to write in the name of the person who the blood samples are to be taken from (Curtis Francis). [32] The second paragraph of the Information of Obtain requires more of the informant. The informant must write in the name of the suspect whom they have reasonable grounds to believe has within the preceding four hours committed, as result of the consumption of alcohol, an offence under s. 253 of the Criminal Code and was involved in an accident. The informant must also write in who was injured as result of the accident (injury to Curtis Francis) and the nature of the injury (a brain bleed). [33] The fourth paragraph of the Information to Obtain is the critical paragraph. The informant is no longer simply filling in blanks on boiler-plate. The informant is now required to provide his reasonable grounds for belief. In this case those reasonable grounds consist solely of two pieces of information: (1) “Interior of vehicle smelled strongly of beverage alcohol”, and (2) “Accused Curtis Francis smelled of beverage alcohol”. [34] In my view, Constable Strueby omitted crucial ground for his belief. He did not depose that he believed that Mr. Francis was the driver of any motor vehicle, let alone the driver of the Tempo motor vehicle which was registered in his name and which crashed into a light standard around 1:19 a.m. on January 10, 2009. Nor did Constable Strueby depose that he believed that Mr. Francis was in care and control of the motor vehicle which could have been accomplished by writing that he observed that Mr. Francis was the sole occupant of the vehicle, was unconscious, with his feet located in the driver’s leg/foot area of the vehicle and the rest of his body slumped across the passenger’s seat. Constable Strueby knew all of this information when he applied for the warrant. He failed to communicate this basic information to Justice of the Peace Boychuk. [35] I am of the view that the information which Constable Strueby deposed in the Information to Obtain, when reviewed as a whole, did not constitute reasonable grounds for the belief that the accused had committed an offence under s. 253. Accordingly, I hold that the Warrant to Search for Blood was invalid. [36] find that the taking of the blood samples from the accused constituted warrantless search. further find that the taking of the blood samples from the accused constituted violation of the accused’s right to be secure against unreasonable search and seizure as guaranteed by s. of the Charter. As the accused's section Charter right was breached, what is the appropriate action to be taken under section 24(2) of the Charter? [37] Section 24 of the Charter states as follows: (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. [38] The main authorities on the exclusion of evidence, under s. 24(2) of the Charter, prior to the release of the Supreme Court decisions on July 17, 2009, were R. v. Collins, 1987 CanLII 84 (SCC), [1987] S.C.R. 265 (Collins), and R. v. Stillman, 1997 CanLII 384 (SCC), [1997] S.C.R. 607 (Stillman). The judgments of the Supreme Court of Canada in R. v. Grant, 2009 SCC 32 (CanLII), [2009] S.C.J. No. 32 (Grant) and R. v. Harrison, 2009 SCC 34 (CanLII), [2009] S.C.J. No. 34 (Harrison) now replace the previous approach that was taken when considering whether to exclude evidence under s. 24(2) of the Charter. [39] Under the Collins/Stillman approach to s. 24(2) of the Charter where the Court found Charter breach, Certificate of Analyses evidencing the results of conscripted breath samples would almost automatically be excluded on the basis of trial unfairness. Grant and Harrison have altered the inquiry that must be made by trial judge in determining whether, notwithstanding Charter breach, the evidence should be excluded. Pursuant to the approach set out in Grant, it does not automatically follow that conscripted evidence obtained following Charter breach is to be excluded. [40] In Grant, the Supreme Court of Canada defined the purpose of s. 24(2) of the Charter. The Court found that the purpose of the section is to maintain the good repute of the administration of justice. The “administration of justice” encompasses both the rule of law, as well as the upholding of Charter rights within the judicial system. The phrase “bring the administration of justice into disrepute”, as found in s. 24(2), is to be interpreted as meaning the “long term sense of maintaining the integrity of, and public confidence in, the justice system” (Grant at 66-67). [41] The inquiry under s. 24(2) of the Charter is an objective one, and looks at “whether reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute” (Grant at 68). Three avenues of inquiry under section 24(2) [42] When faced with an application for exclusion under s. 24(2), Court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to “three avenues of inquiry”. The three avenues of inquiry were described as follows at paragraph 71: (1) First Inquiry: The seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct) [43] During this inquiry the Court has to determine whether the admission of evidence would send message that the Courts, as institutions responsible for the administration of justice, condone the state deviation from the rule of law based on the fact that they failed to disassociate themselves from the “fruits of that unlawful conduct” (Grant at 72). This is fact specific inquiry. [44] This inquiry requires trial judge to evaluate “the seriousness of the state conduct that led to the breach”. The more severe or deliberate the infringing conduct was, the greater the need for the Courts to disassociate themselves from that conduct by excluding evidence linked to it, in order to preserve public confidence in and ensure state adherence to the rule of law. [45] If the conduct of the officers was wilful or reckless disregard of Charter rights, it will be more serious violation and will have negative effect on the public confidence in the rule of law. This will increase the chances of bringing the administration of justice into disrepute (Grant at 74). However, if there is the need to prevent the disappearance of evidence or there is “good faith” on the part of the police officers this may mitigate the need for disassociation from the police conduct. If the breach was “merely technical in nature” or resulted from an “understandable mistake”, the Court will not have to be as concerned with disassociation (Harrison at 22). (2) Second Inquiry: The impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little) [46] In Grant, the Court indicated at paragraph 76, that trial judges must concentrate on “the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused”. This requires an evaluation “of the extent to which the breach actually undermined the interests protected by the right infringed” and the “degree to which the violation impacted on those interests”. [47] The more serious the infringement on the individual’s rights or freedoms, the greater the risk that the admission of the evidence would bring the administration of justice into disrepute (Grant at 76). This stage of the inquiry should aim to prevent the mistaken belief that Charter rights do not count. (3) Third Inquiry: Society’s interest in the adjudication of the case on its merits [48] The third stage deals with the criminal trial process and whether its “truth-seeking function” is better served by the admission or exclusion of the evidence in question. This is based on the belief that it is in the interest of society to ensure that individuals who are accused of violating the law are brought to trial, and are dealt with according to the law. [49] The Court points out in Grant, at paragraph 79, that Canadian society “generally expects that criminal allegation will be adjudicated on its merits”. Thus, this third avenue of inquiry requires trial judge to ask him or herself “whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion?” Bodily Evidence under Grant [50] In Grant, the Court also held that the reliability of the evidence “is an important factor in this line of inquiry” because the exclusion of reliable evidence can render trial “unfair from the public perspective, thus bringing the administration of justice into disrepute” (at paragraph 81). The Court recognized that the third avenue of the inquiry would generally favour admission of bodily samples on the basis of their reliability: The third line of inquiry the effect of admitting the evidence on the public interest in having case adjudicated on its merits will usually favour admission in cases involving bodily samples. Unlike compelled statements, evidence obtained from the accused’s body is generally reliable, and the risk of error inherent in depriving the trier of fact of the evidence may well tip the balance in favour of admission. (See Grant, supra at para. 110) [51] Another important consideration is the importance of the evidence to the Crown’s case. Where the evidence is at the heart of the Crown’s case, if it is unreliable its admission is more likely to bring justice into disrepute; if it is reliable its exclusion may have more negative impact (Grant, supra at 83). In this case the evidence which the defence seeks to exclude is the Certificate of Analyst which sets out the results of the blood tests and accompanying report of the analyst which sets out the blood alcohol concentration of the accused at 1:19 a.m. The blood alcohol concentration of an accused is central to the Crown’s case in charge under s. 253(1)(b). The three avenues of inquiry in the present case. 1. The seriousness of the Charter-infringing police conduct. [52] With respect to the first avenue of the inquiry, must consider the police conduct involved in the violation of the accused’s s. right under the Charter. [53] While I have found that the blood warrant was invalid and that the seizure of blood samples from Mr. Francis breached his s. 8 right to be secure against unreasonable search or seizure, I am of the view that Constable Strueby was nonetheless acting in good faith when he obtained blood samples from Mr. Francis. [54] When Constable Strueby attended 2007 6th Avenue at 1:22 a.m., he observed that grey 1991 Ford Tempo vehicle, registered to Mr. Francis, wrapped around power pole on the north side of 6th Avenue. No other vehicles appeared to be involved in the accident. Mr. Francis was the sole occupant of his Tempo vehicle. Mr. Francis was unconscious. His feet were situated in the driver’s leg/foot area of the vehicle. The rest of his body was slumped across the passenger’s seat. Constable Strueby smelled beverage alcohol in the interior of the Tempo vehicle. He also smelled beverage alcohol on Mr. Francis. After Mr. Francis was extracted from the Tempo vehicle, Constable Strueby could smell an odour of beverage alcohol in the ambulance when he accompanied Mr. Francis to the Regina General Hospital. Constable Strueby was advised by Dr. Radford that Mr. Francis had brain bleed injury, was unable to consent to the taking of blood samples and the taking of such samples would not endanger Mr. Francis’ life. Acting on that information, Constable Strueby provided an Information to Obtain to Justice of the Peace Boychuk and obtained blood warrant. Thereafter blood samples were obtained from Mr. Francis. [55] In my view, this was not an instance where Constable Strueby wilfully or recklessly disregarded Mr. Francis’ s. Charter right. While I have found the Information to Obtain in support of the blood warrant deficient, I am confident that Constable Strueby honestly held the belief that Mr. Francis was drinking and driving and was acting in good faith throughout the early morning of January 10, 2009. He attempted to comply with the law by obtaining valid warrant. Under these circumstances do not find his conduct to be serious. 2. The impact of the breach on the Charter-protected interests of the accused. [56] With respect to this avenue of inquiry, I am of the view that the breach of Mr. Francis’ s. 8 Charter right was done in good faith and did not seriously undermine the interests protected by the accused. The breach of Mr. Francis’ right under s. 8 of the Charter was not flagrant, but rather technical in nature. The Justice of the Peace and disagree as to whether reasonable grounds were present for the blood warrant. 3. Society’s interest in the adjudication of the case on its merits. [57] The evidence in question is Certificate of Analyst and accompanying report dated April 20, 2010, which sets out the results of the concentration of alcohol in the accused’s blood arising from blood samples taken from the accused following the Charter breach. The reliability of this evidence, of course, can be subject to challenge by the defence at the trial itself. Although offences under ss. 253(1)(a) and (b) are not amongst the most serious of offences in the Criminal Code and are generally disposed of with fines and driving prohibitions, the societal problems they are intended to denounce and deter are amongst the most serious faced by innocent users of the highway. In the face of this, am of the view that the truth-seeking function of the trial process would be better served by the admission of the evidence. Conclusion on section 24(2) of the Charter [58] Section 24(2) of the Charter states that the evidence (obtained following the Charter breach) shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings (in this case the trial of the accused) would bring the administration of justice into disrepute. [59] Notwithstanding the Charter breaches in this matter, conclude that, having regard to my findings in the three stages of inquiry, the admission in the trial of the Certificate of Analyst and report of the analyst dated April 20, 2010, the Warrant and Certificate of Qualified Medical Practitioner will not bring the administration of justice into disrepute and accordingly, rule in favour of their admission at trial. [60] The Certificate of Analyst reveals that samples of blood taken from the accused contained 229 milligrams of alcohol in one hundred millilitres of blood. The report of Analyst Tracy Cherlet dated April 20, 2010, provided two estimates of blood alcohol concentration (BAC) for the accused at 1:19 a.m. on January 10, 2009. The first estimate of BAC is based on the BAC at 4:02 a.m. (blood sample) which was 229 mg% and on the assumption that the accused’s drinking concluded one half hour or more prior to the time of collision, such that peak BAC was attained prior to, or at the time of the collision. The second estimate of BAC is based on the BAC at 4:02 a.m. (blood sample) which was 229 mg% and on the assumption that the accused’s drinking continued up until the time of the collision, such that the peak BAC was attained after the time of collision, prior to the time the blood was taken. [61] Using the assumptions set for the first estimate, Analyst Cherlet opined that the BAC of the accused at 01:19 a.m. is estimated to be between 256 mg% and 283 mg%. Using the assumptions set out for the second estimate, Analyst Cherlet opined that the BAC of the accused at 01:19 a.m. is estimated to be between 236 mg% and 263 mg%. Analyst Cherlet further opined that by combining estimates one and two, the BAC of the accused Mr. Francis at the time of the collision at 1:19 a.m. would be between 236 mg% and 283 mg%. Analyst Cherlet further opined that all individuals would be impaired in their ability to operate motor vehicle with BAC within this range. Additional Evidence at Trial [62] The evidence of Constable Strueby will be applied to the trial. At trial Constable Strueby also testified that it was cold during the early hours of January 10, 2009 and 6th Avenue had been recently graded and the roadway was icy. [63] Constable Gottselig testified that he and his partner, Constable Hogan work as traffic collision investigators. They arrived at the scene of the accident on 6th Avenue around 1:21 a.m. on January 10, 2009. Constable Gottselig observed grey Tempo vehicle which had come to rest against power pole. He went to the passenger door of the Tempo and observed the upper torso of lone male slouched on the passenger seat with his head resting on the front passenger window. He also observed that the lone male’s feet were in the driver’s side floor area of the vehicle. He also smelled the odour of beverage alcohol coming from inside the vehicle. He was unsure if the male was wearing seat belt. [64] Constable Gottselig tried to talk to the male in the vehicle, however, there was no response. Constable Gottselig observed that the vehicle was running and the transmission was set in the drive setting. He was unable to say if the vehicle could be put in motion. He turned the key in the ignition of the vehicle to the off position. [65] Constable Gottselig and his partner made note of the damage to the vehicle. Constable Gottselig also observed that telephone utility box on the roadway was damaged. He observed single set of tire tracks from the Tempo going eastbound on 6th Avenue which then rotated in counterclockwise direction ending up against power pole. [66] Constable Gottselig testified that the temperature was around minus fifteen Celsius and that there was some packed snow and loose snow on the roadway which made driving slippery. He added that he was able to walk on the roadway without difficulty. [67] Constable Melissa Boxall testified that she attended the scene of the accident on 6th Avenue at 3:40 a.m. on January 10, 2009, for the purpose of taking photographs. photo booklet of eight photographs taken by Constable Boxall was admitted into evidence at trial. The photographs show the passenger side door of the Tempo vehicle dented from side impact with power pole along with an area of impact on the driver’s side door. [68] Dave Fowler and his wife Lisa McDonnel live at 2007 6th Avenue. The power pole which the Tempo vehicle struck is located on 6th Avenue across the street from their three-story home. Dave Fowler was getting ready to go to bed around 1:30 a.m. on January 10, 2009. Around this time he heard two sounds from his bathroom located on the third floor of the home. The first sound he heard was the opening of the garage door to his home on the ground level. This coincided with his wife arriving home. Dave Fowler also heard the sound of car going fairly fast on the roadway outside his home. He then heard loud bang and observed puff of smoke and the wires on nearby power line swaying back and forth. Mr. Fowler then went downstairs to the second floor of his home where he saw his wife. Mr. Fowler then went to window on the second floor of his home and observed car to be up against power pole on 6th Avenue. Mr. Fowler did not see anyone leave the car or enter the car. He placed call to 911. As Mr. Fowler was not dressed, he asked his wife to go outside to see how things were. Mr. Fowler observed that the police and an ambulance came to the scene of the accident within five to ten minutes. Mr. Fowler admitted on cross-examination that he did not have his eyes on the car at all times after it collided with the power pole. [69] Lisa McDonnel testified that after arriving home and speaking with her husband Dave, she became aware that an accident had occurred outside of their home. She did not see the accident occur. Lisa and Dave met on the second floor of their home. Dave was on the telephone to 911 and from window overlooking 6th Avenue she saw car up against pole. Less than minute later Lisa McDonnel went from the second floor of her home to the garage on the ground floor and thirty or forty feet to the car up against power pole on 6th Avenue. Ms. McDonnel observed one person inside the car. That person was slumped over onto the passenger side of the car and appeared to be asleep. Before she could knock on the window of the car the police arrived at the scene. She did not observe anyone leave the car. Issue at Trial [70] The issue at trial is whether the Crown has proven beyond a reasonable doubt that the accused, Curtis Francis was the driver of the Tempo motor vehicle or alternatively was in care and control of the motor vehicle. Analysis for Trial [71] I am of the view that the Crown has proved beyond a reasonable doubt that Curtis Francis was the driver of the Tempo vehicle which collided with the power pole on 6th Avenue at 1:19 a.m. on January 10, 2009. [72] found Dave Fowler, Lisa McDonnel and Constables Strueby and Gottselig to be very credible and reliable witnesses. There is no question that none of the Crown witnesses actually saw Mr. Francis at the wheel of his Tempo vehicle prior to it colliding with the power pole. However, when their evidence is examined as a whole I am sure that Mr. Francis was driving his Tempo vehicle when it collided with the power pole. [73] The evidence establishes that at approximately 1:19 a.m. on January 10, 2009, from the third floor of his home, Dave Fowler heard the sound of car going fairly fast on the roadway outside his home. He then heard loud bang and observed puff of smoke and the wires on nearby power line swaying back and forth. Within less than one minute following the crash, from his second story window, Mr. Fowler observed car to be up against power pole on 6th Avenue. This vehicle was the Tempo owned by Mr. Francis. infer that the Tempo struck telephone utility box causing the puff of smoke which Mr. Fowler observed. The Tempo also struck the power pole which caused the power lines to sway, which Mr. Fowler also observed. [74] While Mr. Fowler was looking at the car below him, he did not see anyone leave the car or enter the car. find that no more that one minute passed from the time Mr. Fowler took his eyes off the car, placed call to 911 and had his wife go outside to the car. On route to the car from her home, Lisa McDonnel did not see anyone leave the car. Lisa McDonnel saw one person in the car, who find to be Curtis Francis, who was slumped over onto the passenger side of the car and appeared to be asleep. Ms. McDonnel remained at the car until EMS personnel and police arrived at the scene. [75] Constable Gottselig and Constable Strueby also saw only one unconscious occupant in the vehicle. That occupant was Mr. Francis. Constable Gottselig also noticed that the engine in the Tempo vehicle was still running, with the keys in the ignition. He also noted that the transmission was set in the drive position. Constable Gottselig observed that the upper torso of Mr. Francis’ body was slouched on the passenger seat area with his head resting on the front passenger window. He also observed that Mr. Francis’ feet were in the driver’s side floor area of the vehicle. Similar observations were made by Constable Strueby. [76] am of the view that the evidence establishes that Mr. Francis was driving his Tempo vehicle on 6th Avenue when he lost control of the vehicle and struck the electrical utility box and power pole. The fact that his feet were located in the driver’s side floor area of the vehicle and the position of his upper body and head on the passenger side of the front seat area of the Tempo lead me to conclude he was in fact the driver of the vehicle when it collided with the power pole. The impact and resulting damage to the passenger side of the Tempo, in my view, account for some movement of Mr. Francis’ body within the vehicle. [77] In addition, on the evidence before me find that there was not enough time that the vehicle was not in the view of Mr. Fowler, his wife, Ms. McDonnel, or the police to have the driver leave the vehicle and be replaced by the unconscious Mr. Francis, positioned as he was. In my view the only reasonable conclusion is that Mr. Francis was the operator of the vehicle at the time of collision. [78] As I have determined that the accused was the operator of a motor vehicle at 1:19 a.m. on January 10, 2009, with a blood alcohol concentration of between 236 mg% and 283 mg%, I find him to be guilty of count number two. [79] In accordance with the usual practice in this jurisdiction, conditional stay shall be entered on count number one, to be made complete upon the expiration of the appeal period or alternatively, until such time as all initiated appeals have been completed, whereby conviction on count number two is maintained. M.J. Hinds,

The accused was charged with impaired care and control of a motor vehicle and care and control of a motor vehicle while his blood alcohol level exceeded .08. The accused was found in the driver's side of a vehicle with his legs near the pedals. His body was slumped over into the passenger side. The vehicle had collided with a power pole and sustained significant damage. The engine was running when the police arrived. There was no one else in the vehicle. The accused was transported to hospital where the doctor suspected he had a brain bleed and recommended the police obtain a blood warrant. The officer who swore the Information to Obtain the warrant indicated that the interior of the vehicle smelled strongly of beverage alcohol and the accused smelled of beverage alcohol. The Justice of the Peace did not sign the Information to Obtain. The issues before the Court were whether there had been a breach of the accused's s. 8 right to be free from unreasonable search and seizure and whether the Crown had proven beyond a reasonable doubt that the accused was in care and control of the motor vehicle. HELD: The blood warrant was found to be invalid, meaning that the blood samples were obtained as part of a warrantless search in breach of s. 8. The Information to Obtain the blood warrant did not depose that the officer believed the accused was the driver of the vehicle which had crashed into the power pole or that the accused was in care and control of the motor vehicle. The officer should have included information about the accused's position in the vehicle and that the accused was unconscious. Without this information, the Information to Obtain did not contain reasonable grounds to believe that the accused had committed an offence under s. 253 of the Criminal Code. However, the blood sample evidence was admitted after a s. 24(2) analysis. The Court held that the officer was acting in good faith and that he honestly held the belief that the accused was drinking and driving when he swore the Information to Obtain. The impact on the accused was technical in nature and did not seriously undermine the accused's rights. The Court held that the truth seeking function of the trial process would be better served by admission of the Certificate of Analysis. The Court found that the accused was in care and control of the motor vehicle at the time of the collision. There was no evidence that anyone else was in the vehicle and the position of the accused when discovered suggested he had been driving the vehicle. The accused was found guilty of driving while his blood alcohol level exceeded .08. The Court held that his blood alcohol level was between 236 mgs% and 283 mgs%.

b_2011skpc30.txt

L.A. KYLE 2005 SKQB 32 Q.B. A.D. 1999 No. 245 J.C.S.C. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SWIFT CURRENT BETWEEN: CECILE SCHMIDT APPLICANT (PLAINTIFF) and THE SOUTHWEST DISTRICT HEALTH BOARD, WHO NOW REPRESENTS THE FORMER WESTERN SENIOR CITIZENS’ HOME INC. BOARD by AMALGAMATION AGREEMENT dated June 1, 1996 and REGIONAL HEALTH AUTHORITY #3 and SASKATCHEWAN HOSPITAL ASSOCIATION and SASKATCHEWAN ASSOCIATION OF HEALTH ORGANIZATIONS RESPONDENT E. Holgate for the applicant R.A. Watson, Q.C. and L. Ferguson for the respondents Saskatchewan Hospital Association and Saskatchewan Association of Health Organizations Not represented the respondent, The Southwest District Health Board FIAT LAING J. January 17, 2005 [1] The applicant’s motion seeks to amend the statement of claim dated December 31, 1999, in which she alleges wrongful dismissal by her employer on January 10, 1994. The purpose of the requested amendments, apart from housekeeping amendments, is to join the Saskatchewan Association of Health Organizations (“S.A.H.O”) to the action. S.A.H.O. is the long-term disability insurer for members of the Saskatchewan Health Care Association whose employees are certified by the Saskatchewan Union of Nurses. The applicant seeks to make S.A.H.O. a party for the purpose of claiming from it a disability pension from the date of her termination until she turned 65 years old on July 29, 2000. [2] Counsel for the applicant takes the position that the limitation period can be waived pursuant to s. 30 of The Queen’s Bench Act, 1998, S.S. 1998, c. Q-1.01. He acknowledges that before s. 30 is applicable, it must be first established that the claim against the party to be added arose out of the same transaction or occurrence as the existing claim. Counsel then argues for very broad interpretation of the words “transaction” or “occurrence”. However, this is not matter being argued in the first instance. The Saskatchewan Court of Appeal has in the case of Fillion v. Wolverine, 2001 SKCA 30 (CanLII), (2001), 203 Sask. R. 288, indicated the terms “same transaction” or “occurrence” are to be given restrictive meaning. At para. 13, the Court noted: Properly construed and applied, the clause cannot accommodate the subsequent claim, bearing in mind that the section allows for an exception to limitation period and must be construed and applied accordingly. [3] As a starting point, the claims do not arise in the same time-frame, but are separated by a minimum of 120 days being the disability qualification period under the disability plan. minimum of 120 days having elapsed between the factual basis for one claim and the earliest the new claim could be brought makes it difficult to say they arise out of the same occurrence or transaction. The alleged wrongful termination by the employer did not cause the applicant’s health problems, at least not in the 120-day qualifying period. However, the fact is, there is no other legal or factual connection between the two claims. The applicant’s existing claim alleges breach of contract of employment. The claim proposed against S.A.H.O. alleges breach of contract of disability insurance. There is no legal connection. Similarly, there are no common facts relevant to either claim. The facts related to the breach of contract of employment are the applicant’s performance on the job and the actions of the employer. The facts relevant to the disability claim are, or would be, the applicant’s health commencing at least 120 days after her employment terminated. [4] As the applicant cannot bring herself within s. 30 of The Queen’s Bench Act, 1998, there is no basis for this Court to waive the limitation period. Having arrived at this conclusion, it is not necessary to address the other arguments advanced by the applicant or the respondent. The application to join S.A.H.O. as a party to the action is dismissed. [5] The amendments sought by the applicant had S.A.H.O. been joined as party are not allowed. These include reference to “[e]ach of the Defendants” in paras. (a)(x)-(xiii) inclusive, and para. (a)(xv). If the applicant wishes to substitute “the defendant” in each of the foregoing paragraphs, she may do so. The amendments sought by the applicant [6] There is obviously some duplication in some of the facts and allegations included in the “housekeeping” amendments with facts and allegations contained in the original statement of claim. However, as there has not been any opposition to these amendments, the same are allowed. [7] The respondent, S.A.H.O., is entitled to taxable costs against the applicant. [8] Order accordingly.

FIAT: The applicant's motion seeks to amend the statement of claim dated December 31, 1999 in which she alleges wrongful dismissal by her employer on January 10, 1994. The purpose of the amendment is to join the Saskatchewan Association of Health Organizations (SAHO) to the action. The applicant seeks to make SAHO a party for the purpose of claiming from it a disability pension from the date of her termination until she turned 65 on July 29, 2000. HELD: The application to join SAHO is dismissed. The claims do not arise in the same time frame but are separated by a minimum of 120 days being the disability period under the disability plan. There is no connection between the two claims. The existing claim alleges a breach of contract of employment. The claim proposed against SAHO alleges a breach of a contract of disability insurance. There are no common facts. The facts relevant to the breach of contract of employment are the applicant's performance on the job and the actions of the employer. The facts relevant to the disability claim are the applicant's health commencing at least 120 days after her employment terminated.

d_2005skqb32.txt

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2008 SKPC 104 Date: July 11, 2008 Information: 40558670 Location: Prince Albert Between: Her Majesty the Queen and Craig Lawrence Kendall Weenie Appearing: Mr. P. Hryhorchuk For the Crown Mr. D. Blenner-Hassett For the Accused DECISION S. C. CARTER, INTRODUCTION: [1] The accused, Craig Lawrence Kendall Weenie, is charged with resisting arrest contrary to s. 129(a) of the Criminal Code. The defence argues that there were insufficient grounds for the accused’s arrest and that the accused was therefore justified in resisting his detention. The Crown’s position is that in these circumstances the police were justified in arresting the accused for being drunk in public. [2] From the evidence heard at the trial on June 12, 2008, make the following finding of the facts. [3] On February 17, 2008 at approximately 7:05 a.m., Cst. Hayes was dispatched to attend to the apartment complex at Bryant Place in Prince Albert, Saskatchewan for an eviction at Block 4, Suite #1. While en route the dispatcher called again advising that the person to be evicted was now outside of the apartment banging on the door. Cst. Hayes drove into the parking lot, got out of his car and saw the accused on the porch banging at the door. The accused then began to walk towards Cst. Hayes. He walked down off the porch and onto the parking lot with his hands in his pockets. Cst. Hayes ordered the accused to remove his hands from his pockets. He repeated this command several times until the accused complied. Cst. Hayes then approached the accused who began to yell obscenities and swear at him. The accused smelled strongly of alcohol and appeared to be slightly unsteady on his feet. He said that he belonged in the apartment and turned away and began to walk back toward it. [4] Cst. Epp had arrived at the scene by this time. As the accused began walking away, he and Cst. Hayes each took hold of the accused’s arms and told him that he was under arrest for being drunk in public. The accused got very angry. He pulled away insisting that he belonged in the apartment. struggle then ensued between the two peace officers and the accused who is over six feet in height and weighs more than three hundred pounds. OC spray was used but had no immediate affect on the accused, but he was eventually handcuffed and placed in the back of police car. [5] Section 129 of The Alcohol and Gaming Regulation Act S.S. 1988-89, c. 18.0, states that “no person shall be in an intoxicated condition in public place or permitted premises”. Pursuant to s. 143 of the same Act, peace officer may arrest without warrant any person whom he finds committing an offence under the Act. [6] Under s. 52(2) of The Summary Offences Procedure Act S.S. 1990-91, c.S 63.1, peace officer who finds person in public place and whom the peace officer reasonably believes, (i) is intoxicated due to the use of alcohol; and (ii) if not detained is likely to cause injury to himself or herself or be danger or disturbance to others and there is no other person capable and willing to take care of the person, may take that person into custody. [7] Pursuant to s. 52(5) the person taken into custody pursuant to s. 52(2) shall be released from custody when, in the opinion of custodian, the person has recovered sufficient capacity that, if released, the person is unlikely to cause injury to himself or herself or be danger or disturbance to others. [8] The outcome of all cases depends upon their unique facts. Thus in R. v. Roberts[1], found, on the facts of that case, that there were insufficient indicia of impairment to warrant the arrest of Mr. Roberts. Roberts was walking by himself in hotel parking lot. One arresting officer said that his eyes were squinty and that his speech was hard to understand. The other officer said that his speech was slightly slurred and that he swayed at one point when he began to walk away from them. No complaints had been received about his behaviour. He spoke at moderate volume. There was no evidence of the smell of alcoholic beverage on his breath. [9] In the case at bar there was complaint concerning the accused. He was heard and seen banging on the door of an apartment. He smelled of alcohol. He was slightly unsteady on his feet and he was yelling and swearing at the police. In my view these facts distinguish this case from Roberts. [10] Given the complaint and the observations made by Cst. Hayes and Cst. Epp it was reasonable for them to believe that the accused was intoxicated due to the use of alcohol. He was causing disturbance to others. The complaint came in as an eviction. He was seen by the officers standing on the apartment porch, pounding on the door. In my view there is nothing private about porch. Members of the public have the right to walk up and knock on doors unless previously requested not to do so.[2] In any event, the accused began to yell at the officers prior to his arrest when he was in the parking lot which is, without any doubt, public place. No one else was present who may have been capable and willing to take charge of the accused. [11] The defence argued that in these circumstances the arresting officers should have questioned that accused as to where else he might go to sleep off his intoxication. Although there was no evidence before the Court of this, defence counsel alluded to the fact that the accused’s mother lived somewhere in the same apartment complex. The Crown’s position is that in circumstances such as this, the police are not required to sit down and discuss with the accused where he might go, rather than banging on the door of that particular apartment. In my view, s. 52(2) of The Summary Offences Procedure Act, should be interpreted as meaning that there must be no other person present at the scene who is capable and willing to take care of the person who is subject to arrest. There was no such person in this case. In my view the arrest was, on these facts, lawful. DECISION: [12] The Crown has proved beyond a reasonable doubt that the officers were engaged in the lawful execution of their duty when the accused resisted their efforts to arrest him pursuant to The Summary Offences Procedure Act. S. C. Carter, [1] 2003 SKPC 75 (CanLII) [2] Rex ex Rel Atkinson v. Montague (1949), 1949 CanLII 400 (ON SC), 97 C.C.C. 29 (Ont. Ct.), and see definition of “public place”, paragraph a, Alcohol and Gaming Regulations Act, 1997 c.A-18.011

The accused was charged with resisting arrest contrary to s. 129(a) of the Criminal Code. The defence argued that there were insufficient grounds for the accused's arrest and he was therefore justified in resisting his detention. The Crown's position was that the police were justified in arresting the accused for being drunk in public. HELD: The Crown has proved beyond a reasonable doubt that the officers were engaged in the lawful execution of their duty when the accused resisted their efforts to arrest him pursuant to The Summary Offences Procedure Act. There was a complaint to police concerning the accused. He was heard and seen banging on the door of an apartment. He smelled of alcohol. He was slightly unsteady on his feet and he was yelling and swearing at the police. Given the complaint and the observations made by the attending constables, it was reasonable for them to believe that the accused was intoxicated due to the use of alcohol. He was causing a disturbance to others. Prior to his arrest, the accused began to yell at the officers in a parking lot which is, without any doubt, a public place. No one else was present who may have been capable and willing to take charge of the accused. The defence argued that in these circumstances the arresting officers should have questioned that accused as to where else he might go to sleep off his intoxication. The Crown submitted that in circumstances such as this, the police are not required to sit down and discuss with the accused where he might go. In the Court's view, s. 52(2) of The Summary Offences Procedure Act should be interpreted as meaning that there must be no other person present at the scene who is capable and willing to take care of the person who is subject to arrest. There was no such person in this case. The arrest was, on these facts, lawful.

b_2008skpc104.txt

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2009 SKCA 97 Date: 20090826 Between: Docket: 1827 William Stocks and Joy Stocks Proposed Appellants and Robin Gardner Proposed Respondent Before: Smith J.A. (In Chambers) Counsel: Heather L. Nord for the Proposed Appellants Ryan M. Hrechka for the Proposed Respondent Application: From: 2009 SKQB 318 (CanLII) Heard: August 26, 2009 Disposition: Leave to Appeal Granted (Orally) Written Reasons: August 28, 2009 By: The Honourable Madam Justice Smith [1] The proposed appellants and the proposed respondent were involved in litigation involving the ownership of some valuable breeding dogs which were in the possession of the proposed respondent, but claimed by the proposed appellants. The proposed appellants sought and obtained writ of replevin in relation to the dogs pursuant to Rules 406-10 of The Queen’s Bench Rules. The proposed appellants provided an irrevocable letter of credit in the amount of $12,000 as security in accordance with the requirements of Rule 408. The proposed respondent did not provide security, as she was entitled to do by Rule 409A, and the sheriff therefore seized two of the disputed dogs then in her possession. She then applied to the Court of Queen’s Bench for an order setting aside the writ, and ordering the dogs to be returned to her, on the grounds that the affidavit filed in support of the writ contained false and misleading information. [2] The chambers judge granted the application, finding, on the basis of affidavit evidence filed before him, that the affidavit filed in support of the writ contained false and misleading information and that to allow the writ to stand would therefore constitute an abuse of the process of the Court. [3] Rule 407 provides as follows: 407(1) writ of replevin shall be issued by the local registrar upon the plaintiff filing his affidavit or that of his duly authorized agent, (a) Embodying description of such property and the value thereof, to the best of the deponent’s belief, and stating that the plaintiff claiming is the owner, or is entitled to the possession of the said property; (b) Further stating, if replevin is sought in the case of property distrained for rent or damage feasant, that the property was taken under colour of distress for rent or damage feasant, as the case may be, or (c) In the case of property wrongfully taken out of the possession of the plaintiff, or fraudulently got out of his possession, stating in addition to the particulars required by clause (a) of this rule the time when and the wrongful and fraudulent manner in which the same was taken, or gotten out of his possession, and such facts and circumstances as show that the plaintiff is entitled to the possession of the property; (d) Naming the judicial centre nearest to which the property sought to be replevied is situated. (2) Where the affidavit substantially complies with the requirements of Subrule (1) the validity of the writ of replevin shall not be questioned in any interlocutory proceeding. [4] The question raised on the proposed appeal is whether the chambers judged erred in enquiring into the accuracy of the facts sworn to in the proposed appellants’ affidavit, in light of the provision in Rule 407(2) that provides that the validity of the writ shall not be questioned in any interlocutory proceeding where the affidavit substantially complies with the requirements of subrule (1). The proposed appellants argue that, in effect, the chambers judge treated the application to set aside the writ as trial of the very issue of the on-going litigation. [5] Where leave to appeal is sought in relation to an interlocutory order, the test to be applied was articulated in Rothmans, Benson Hedges Inc. v. Saskatchewan, 2002 SKCA 119 (CanLII), 227 Sask.R. 121. Essentially, the judge in chambers is required to determine whether the issue sought to be raised on the appeal is of sufficient merit and importance to warrant the attention of the Court of Appeal. [6] have concluded that the proposed appeal in this case meets the test set out and that leave should be granted. In light of the clear wording of Rule 407(2), the question is clearly not frivolous or vexatious. While the value of the dogs is relatively low, they are clearly highly valued by the parties, and they are, in effect, unique chattels. The appeal should not unduly delay the proceedings, for it raises very narrow issue and can proceed to appeal quickly. Most significantly, it is my view that the ruling of the chambers judge in this case raises an issue of considerable significance to the general operation of the remedy of a writ of replevin as provided in the Rules of Court, and merits consideration by this Court. [7] Leave to appeal is granted.

The proposed appellants and the proposed respondent were involved in litigation involving the ownership of some valuable breeding dogs that were in the possession of the proposed respondent, but claimed by the proposed appellants. The proposed appellants sought and obtained a writ of replevin in relation to the dogs. The proposed respondent applied for an order setting aside the writ, and ordering the dogs returned. The chambers judge granted the application finding that the affidavit filed in support of the writ contained false and misleading information and that to allow the writ to stand would constitute an abuse of process. The issue on appeal is whether the chambers judge erred in inquiring into the accuracy of the facts sworn to in the proposed appellant's affidavit, in light of the provision in Rule 407(2) of the Queen's Bench Rules that provides that the validity of the writ shall not be questioned in any interlocutory proceeding where the affidavit substantially complies with the requirements of the Rule. HELD: Leave to appeal is granted. The ruling of the chambers judge raises an issue of considerable importance to the general operation of the writ of replevin as provided for in the Rules of Court.

6_2009skca97.txt

D.I.V. A.D. 1996 No. 268 J.C.S. IN THE QUEEN`S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SASKATOON BETWEEN: BONNIE MARY BIGGAR PETITIONER (RESPONDENT) and ALLAN WALTER ALEXANDER BIGGAR RESPONDENT (APPLICANT) S.J. Pillipow for the petitioner (respondent) Allan Walter Alexander Biggar on his own behalf FIAT M-E. WRIGHT J. July 13, 1998 [1] The applicant, Allan Walter Alexander Biggar, seeksto vary the child support provisions contained in a judgmentfor divorce granted September 17, 1997 to an amount thataccords with the Federal Child Support Guidelines [Divorce ActRegulations, SOR/97-175]. [2] The applicant and respondent, Bonnie Mary Biggar, married on June 21, 1985. They have two children, Kate Belinda, born November 19, 1988 and Robyn Claire, born October 4, 1990. The parties separated on July 3, 1995 and on July 23, 1997 enteredinto an interspousal agreement. [3] Pursuant to the terms of their agreement, the respondent has custody of the children and the applicant has reasonable access on reasonable notice. The parties agreed that child support payable by the applicant would be in accordance with an interim order made in this proceeding on June 10, 1996. That order required the applicant to pay child support in the amount of $700 per month for each of the two [4] The agreement also provided for final division of matrimonial property. The respondent waived any claim to further spousal support, subject to payment by the applicant of $500 per month continuing only until April 15, 1998. [5] A judgment for divorce was granted September 17,1997. The parties` agreements regarding custody, access andchild and spousal support were incorporated into the judgment. [6] The applicant is employed as the manager of coffee shop. His employer, Rita Bourgault, with whom he resides, confirms that his employment started April 1, 1998 and that his annual salary is $24,000. The respondent is on leave from her employment with the federal government. She first applied for leave in August, 1997 because she intended to return to Prince Edward Island where her family resides. She has delayed this move, but still plans to relocate to that province during the summer of 1998. She has requested transfer with the federal government. [7] At the time of their marriage, both the applicant and respondent were employed by the federal government and were residing in Prince Edward Island. They moved to Saskatoon in 1991. At the time of the separation the applicant continued to be employed by the federal government at the National Hydrology Research Institute. His annual salary was approximately $55,500. [8] By letter dated October 9, 1996, some four months after the interim order for child support was granted, the applicant was notified that his services were about to become redundant to departmental requirements. His last day of employment with the federal government was May 2, 1997. He received retiring allowance of $75,646, of which approximately $40,000 was rolled into registered retirement savings plan. [9] Since October, 1996 the applicant has searched for comparable employment. He filed in support of his application summary of the positions he has applied for and the inquiries he has made. His lack of success in this endeavour is not due to lack of effort on his part to secure more remunerative employment. The applicant explains his failed efforts as in part due to lack of broad range of experience. He was employed continuously with the federal government from 1980 and his experience is accordingly limited to middle management in the federal public service. [10] In 1997, the applicant`s total income as reported on his T1 General form for that year was $107,731 comprised of employment income of $27,111, his retiring allowance of $75,646 and RRSP income of $4,975. [11] The applicant has made all support payments required under the judgment. His spousal support obligation has terminated. He says he has depleted all of his savings over the last year of unemployment and that his child support obligation should now be varied to conform to that which he would be required to pay under the Guidelines, supra, based on an annual income of $24,000. [12] The respondent opposes the application. She says there has been no change in circumstances since the judgment was granted. Further, she has no income other than that she receives as support from the applicant and the child tax benefit. Alternatively, she asserts that there are special provisions in the parties` separation agreement which would permit the court to award an amount that differs from the amount prescribed by the Guidelines; in this case, greater amount. THE LEGISLATION [13] The Divorce Act, R.S.C. 1985, c. (2nd Supp.): 17.(4) Before the court makes variation order in respect of child support order, the court shall satisfy itself that change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order. (6.1) court making variation order in respect of child support order shall do so in accordance with the applicable guidelines. (6.2) Notwithstanding subsection (6.1), in making variation order in respect of child support order, court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines if the court is satisfied (a) that special provisions in an order, judgment or written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit child, or that special provisions have otherwise been made for the benefit of child; and (b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions. [14] The Federal Child Support Guidelines, supra: 14. For the purposes of subsection 17(4) of the Act, change of circumstances is (a) in the case where the amount of child support includes determination made in accordance with the applicable table, any change in circumstances that would result in different child support order or any provision thereof; (b) in the case where the amount of child support does not include determination made in accordance with table, any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support; and (c) in the case of an order made before May 1, 1997, the coming into force of section 15.1 of the Act, enacted by section of chapter of the Statutes of Canada, (1997). [15] The judgment which the applicant seeks to vary was made after the coming into force of the Guidelines. It does not however include determination of child support made in accordance with table. Accordingly, it is s. 14(b) of the Guidelines which applies to this application. Before varying the existing order, must be satisfied that there has been change in the condition, means, needs or other circumstances of the applicant or the respondent, or either child of the marriage. [16] There is no change in the circumstances of therespondent or either child disclosed in the material filed. At the time of the order the respondent was, as she is now, on leave from her employ with the federal government. [17] The applicant at the time of the order was unemployed. He was however still benefitting from his retiring allowance which raised his total income in 1997 to an amount in excess of $100,000. He no longer enjoys that income. He is now employed earning only $24,000 per annum. Iam satisfied that there has been a change in the applicant`sfinancial means and circumstances and that a variation of theexisting order is warranted. The applicant has experienced significant reduction in the level of his income since 1997 and has been unable to obtain employment which compensates him at level commensurate with that which he received while employed by the federal government. [18] The provisions of the Divorce Act require any variation order be made in accordance with the applicable Guidelines. Based on an annual income of $24,000, theapplicant`s child support obligation is $341 per month for thetwo children. However, s. 17(6.2) permits the court to make child support order that is different than the amount that would otherwise be determined in accordance with the Guidelines if it is satisfied that there are special provisions in previous order or agreement that directly or indirectly benefit child and that the application of the Guidelines would result in an amount of child support that is inequitable given those special provisions. The respondent relies on this section in support of her assertion that an amount of child support greater than that prescribed by the Guidelines should be ordered. [19] Pursuant to the parties` separation agreement, the respondent assumed responsibility for and repaid loan to the applicant`s parents in the amount of $25,000. She did this by taking out mortgage on the former matrimonial home. She says that she agreed to this only as part of comprehensive agreement dealing with all outstanding issues between the parties, including child and spousal support. Had she not been obliged to make this payment, she says she would have agreed at that time to lower child support payment from the [20] cannot conclude on the evidence presented that there is any special provision in the parties` agreement that directly or indirectly benefits either child. The agreementprovides for child support in a specified amount greater thanthat provided for in the Guidelines based on the applicant`scurrent income, an obvious benefit to the children. However Ido not equate this with a "special provision" as contemplatedby s. 17(6.2) of the Divorce Act given the change in thecircumstances of the applicant. To conclude otherwise and to accept the respondent`s position would be to foreclose any future variation application seeking reduction in the existing child support obligation irrespective of and without regard to the applicant`s present condition, means and other circumstances. (1) The applicant`s total income is $24,000 per annum; (2) The applicant shall pay to the respondent asand for the support of the two children of themarriage, Kate Belinda, born November 19, 1988,and Robyn Claire, born October 4, 1990, the sumof $341 per month commencing the 1st day ofJuly, 1998, and continuing on the first day ofeach month until further order. [22] There shall be no order as to costs.

FIAT. The father sought to reduce the support contained in the 1997 divorce judgment which incorporated the parties' interspousal agreements regarding custody, access and child and spousal support. The parties were married in 1985 and separated in 1995. The mother was on leave from her employment. When his federal government management position was declared redundant, the applicant received a retiring allowance of $75,646 in May 1997. The respondent opposed the application on the basis there had been no change in circumstances since the judgment was granted; she had no other income than the support payments and child tax credit; alternatively, there were special provisions in the parties' separation agreement which would permit the court to award an amount that differs from the amount prescribed by the Guidelines.HELD: 1)The judgment the applicant sought to vary was made after the coming into force of the Guidelines. It did not however include a determination of child support made in accordance with the Guidelines. There was no change in the childrens' or mother's circumstances. The applicant was unemployed but was still benefiting from his retiring allowance at the time of the order which he no longer enjoyed. A variation was warranted as there had been a change in the father's financial means and circumstances. The Guideline support obligation for two children is $341 per month. 2)It could not be concluded on the evidence presented that there was any special provision in the parties' agreement that directly or indirectly benefited either child. The provision for child support in a specified amount greater than that provided in the Guidelines was not a 'special provision' as contemplated by s17(6.2) of the Divorce Act given the change in circumstances of the applicant whose annual income had dropped from $55,500 to $24,000 a year. 3)No order was made as to costs.

c_1998canlii13402.txt